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.