Guardianship of a Parent: When and How to Get It

April 13, 2018 by Cheryl Proska in For Individuals, For Professionals, Guardianship

Should I seek guardianship over my parent?”

This is not an easy question, but it is one you may have to face in the future. Answering it confidently requires a great deal of thought, planning and consideration. Are your parents capable of making sound decisions? Are you prepared to deal with the legal process and responsibilities of guardianship? Do you have the time resources and ability to serve as a guardian?

Here is a brief overview to help you determine if seeking guardianship of an aging loved one is a proper next step.

What is guardianship?

A guardianship is a legal relationship between a “guardian” and a person who can no longer take care of his or her own affairs due to an incapacity. The person who has become incapacitated is referred to as a “ward.”

A guardianship is court-appointed, and a guardian can be given the authority to make financial, legal and/or health care decisions for the ward. The authority granted to the guardian depends on the terms set in the guardianship.

Obtaining guardianship is very different from obtaining power of attorney.

When is it time to obtain guardianship?

Your parent may need you (or another family member/friend) to obtain guardianship if they’ve experienced an illness, injury or disability that has rendered them incapable of making sound, rational decisions about their health, finances or living situation.

For example, your parent may be in a coma, have had a stroke or be suffering from the effects of a cognitive illness like Alzheimer’s disease or dementia.

The requirements needed for a court to declare someone incapacitated or incompetent (and, thus, in need of a guardian) vary from state to state. But, generally, a court will deem someone incapacitated if it’s proven they can no longer make important life decisions in one or all facets of their life.

It’s possible someone may be declared incapacitated in just one area of their life — like when it comes to financial decisions. In that case, a court may grant a guardianship in just that area of incapacity.

Note: A person won’t be declared incapacitated or incompetent simply because they make irresponsible or foolish decisions. Someone seeking guardianship has to be able to prove the person lacks the capacity to make sound decisions. Also, simply having a developmental or mental illness or disability isn’t enough, by itself, to have a person declared incapacitated.

It’s also worth keeping in mind that if a person has a power of attorney or advance directive in place, those legal documents take precedence over a guardianship — unless it can be proven the person was incapable of making sound decisions when those documents were put in place.

How do you obtain a guardianship?

Again, the requirements and the process for obtaining guardianship can vary from state to state.

The process starts in court, where you’ll fill out a petition to obtain guardianship. A hearing will then need to be held in which a judge will review the petition. You’ll have to prove — using expert findings — the person you’re seeking guardianship for has lost the capacity to care — or make decisions — for him/herself in one or all facets of their life.

The process can be long and complex, so it’s often recommended you seek the services of an elder law attorney. Another option is to contact an INTERVENTION ASSOCIATES PROFESSIONAL CARE MANAGER, who can help you get the process started and guide you along the way.

Due to the legal process involved, obtaining a guardianship can be expensive — and if any family members disagree about the need for guardianship, or who should serve as guardian, the process can become even longer and costlier.

After becoming a guardian, you’ll likely also be asked to provide detailed updates to the court that appointed the guardianship — so it can make sure the guardianship’s being carried out properly and in accordance with the law.

Since the process requires so much time and financial resources, it’s often considered a last resort when seeking to provide care for a loved one.

Are you prepared to serve as guardian?

While the initial thought of serving as your parent’s guardian — to make sure they are well looked after — is certainly a noble and commendable one, you must first ask yourself if you’re truly prepared to take on the responsibility.

It may not be the right path for your parent — or yourself — if you don’t enter the process knowing full well that you can do the job.

Some questions to ask yourself:

  • Are you able to abide by all the legal requirements to become a guardian? (A local elder law attorney or IVA Care Manager can help educate you on all the requirements in your state).
  • Can you do it over the long haul? Becoming a guardian is usually a long-term commitment. A guardianship remains in place until the ward demonstrates they can competently handle their own affairs. It can last for the remainder of the ward’s life, unless a court appoints someone to take your place. Until the guardianship is removed, the guardian retains the authority to make decisions for the ward even if the ward is cognizant and disagrees with the decisions.
  • Are you ready to make difficult decisions? You may be responsible for making medical, financial and housing decisions for your parent.
  • Will filing for guardianship create family disputes? It’s not uncommon for siblings to feud over who gets to take care of mom and dad. This can create rifts between family members and prolong the filing process.

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