How to Get Guardianship of an Elderly Parent

When an elder loses the ability to think clearly, it affects his or her ability to participate meaningfully in decision-making. When the person you are caring for is unable to make rational, clear-headed decisions about health care, finances, or other aspects of life, guardianship may be the next step (particularly if there is disagreement among family members about these issues).

Guardianship is an option when your elderly parent does not have a power of attorney or advanced directive in place.

In order to act as someone's legal guardian, you have to go to court to have the person declared incompetent based on expert findings.

In guardianship cases, also known as conservatorship, a court declares a person incompetent and appoints a guardian. The court transfers the responsibility for managing finances, living arrangements, and medical decisions to the guardian.

This procedure can take some time. If family members disagree about the need for guardianship or who should act as a guardian, this can be a painful, prolonged, and costly process that may leave everyone involved feeling angry, guilty, or both.

What Is a Court-Appointed Guardian?

A guardian has a legal duty to act in the best interests of the individual. They have total control over the person they are appointed to serve. Sadly, it strips your loved one of many legal rights, but it might be the only way you can gain the legal authority to make decisions and carry out many essential tasks that he or she is no longer able to handle. These can tasks can include managing and protecting finances or arranging admission to a nursing home.

When is a Guardian Appointed?

A guardian or conservator can only be appointed if a court hears evidence that the person lacks mental capacity in some or all areas of their life. In other words, he or she can no longer make informed decisions. The person alleged to be incapacitated has a right to an attorney and to object to the appointment of his or her guardian or conservator.

What Does a Guardian Do?

When your elderly parent has a guardian or conservator appointed, in legal terms, your parent is called a "ward." When the court appoints a guardian, you may have the following responsibilities:

  • Determining where the ward will live;
  • Monitoring their residence;
  • Providing consent for medical treatments;
  • Deciding how finances are handled, what types of financial benefits the ward needs, and how property will be invested;
  • Consenting to and monitoring non-medical services, such as education and counseling;
  • Releasing confidential information;
  • Keeping records of all expenditures;
  • Making end-of-life decisions;
  • Acting as representative payee;
  • Maximizing their independence in the least restrictive manner; and
  • Reporting to the court about their guardianship status at least annually.

Whenever possible, the guardian or conservator must seek the input of the ward and must only act in areas authorized by the court. Guardians can be given limited or broad authority, depending on what a court rules is needed after a thorough investigation. Sometimes the court doles out responsibilities to several parties. For example, a bank trustee might oversee financial decisions, while more personal tasks like living arrangements are left to a family member. Generally, the court requires reports and financial accounting at regular intervals or whenever important decisions are made.

 Comments 1 to 10 of 97 

What court do I begin action on becoming my mother's guardian? Supreme court? family court? If I can't afford a lawyer do I need I need one? Are there organizations that help people with this process?

What if you live far away & can't afford the trip(s) across the country to enter into such proceedings?

usually probate court handles guardianship for elderly parents, if you can't afford a lawyer check for local legal aide or call state bar for a list of pro bono (free) lawyers, not many lawyers will do this type of work for free

We're getting conflicting information from people and I'm hoping someone here can help clarify this for us! My brothers have POA we need to file for guardianship? My Dad lives in NJ and we (siblings) live in PA. Do we need guardianship to place him into a veterns home or assisted living type place? Or does the POA suffice? What would guardianship provide or give us that the POA doesn't already supply us? Thanks in advance for all your support.

Havenspa- I have my fathers POA but had to get guardianship after he had a stroke and needed to be placed in a nursing home. He was not willing to go voluntarily and was told I needed to get guardianship to place him without his consent. At the guardianship hearing they also did an "order for protective placement" not sure if I really needed the guardianship although it does provide for more specific things like whether the person can vote, consent to sterilization, participate in experimental things, get married or write a will. hope this was helpful.

begin with a power of attorney, move on to probate court, govt aging services can help (look up your state's own #), probate or family court depends on the state, state bar attorney office will provide probono/free legal help (they don't do probate often); personal advice resolve within the family before moving towards these matters.

I have POA and POAHC. Mother, 88,, severe dementia; possible predator on the scene--has been working on mother for quite some time. Mother very willing to assign me guardianship. Question: Possibility of assuming guardianship (at which point, question of a predator seems moot) if another sibling objects, even though that is the wish of the mother? Fair amount of assets involved (thus, the predator); I and my sister both living a distance from mother. We have 24/7 care, which helps to keep the predator somewhat a bay, but not entirely. We would like to have the mother come live with us, but she wants to spend the rest of her life in her home (and with the predator seeing her every day).

I have medical POA over my grandfather who is living with me. He has to go into a nursing home as his Dementia has gotten worse. The nursing home he's going to my mother (whom Im estranged from) claims she is applying for guardianship. Will the guardianship destroy my grandfather POA given to me with his final wishes?????

I am quite certain that guardianship trumps poa

guardianship is an expensive, legal process. She has to have him proven incompetent, a doctor has to say he is incompetent, grandpa gets a voice in this. All have to go before a judge. You can contest these procedures and cost your Mom alot more money. This is no simple task and takes away all of his rights. Let her put her money where her mouth is. Good luck

 Comments 1 to 10 of 97 
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The Community for Family Caregivers is an online forum created to Support Caregivers of Elderly and Aging Parents. The material of this web site is provided for informational purposes only. does not provide medical advice, diagnosis or treatment; or legal, financial or any other professional services advice.