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Should I Become A Guardian For My Elderly Family Member

Elderly guardianship, also known as elderly conservatorship, is a legal relationship created when a court appoints an individual to care for an elderly person who is no longer able to care for himself or herself. The appointed guardian has certain duties and responsibilities to the elderly person.


Why Might Someone Need a Guardian?

Unfortunately, an elderly person may become unable to care for himself or herself. This could include the inability to remember to take necessary medications, maintain regular hygiene, or properly manage finances. In these instances, it may be in the elderly person’s best interests for a court to appoint a guardian.


Guardianship Process

States have their own guardianship processes and requirements. Generally speaking, the following people or entities can petition a court to designate a guardian:

  • The elderly person
  • A spouse or domestic partner of the elderly person
  • A relative of the elderly person
  • A friend of the elderly person
  • A state or local government agency

The guardianship process can be long and complex, perhaps understandably, given that the elderly person will lose some important rights and have his or her care entrusted to another person. In Utah, for example, the process involves all of the following steps:

  • Filing a Petition for Appointment of Conservator form, which requires information about the elderly person, the person filing the petition, relatives of the elderly person, and the reasons why guardianship is necessary. The petitioner must also explain why alternatives to a guardianship are not available or appropriate
  • Informing the elderly person, along with his or her relatives, of the petition for guardianship
  • Investigation by a court investigator to determine whether the proposed guardianship is necessary
  • A court hearing in which the judge reviews the petition, listens to statements, determines whether the elderly person lacks the ability to care for himself or herself, and decides whether to grant the guardianship petition.


Duties of a Guardian

A guardian has a duty of care towards the elderly person. In plain terms, this means that the guardian must put the interests of the elderly person first. The guardian may have many responsibilities, such as deciding where the elderly person will live, how to keep the elderly person healthy, how to prepare a budget based on the elderly person’s finances, and how to arrange for recreation and social contact. To give you an idea of the many potential responsibilities involved, California’s handbook for appointed guardians is almost 300 pages.


Pros and Cons of Elderly Guardianship


The purpose and hoped-for benefit of elderly guardianship is that an elderly person who is no longer capable of caring for himself or herself receives proper care. However, there are several drawbacks that may come with guardianship.

Guardianship petitions are usually expensive. There are numerous forms to fill out, many procedural requirements, and likely several court hearings. If there’s any opposition to a proposed guardianship, perhaps by the elderly person or by a family member, the process becomes even more involved and can be emotionally and financially draining.

Guardianship, by nature, requires the elderly person to lose some of his or her rights. For example, the elderly person may lose the right to manage his or her finances, to choose his or her own caretaker, and to decide where he or she lives. There’s also the risk that the guardian will fail to act in the best interest of the elderly person.


Alternatives to Guardianships

Courts consider elderly guardianship to be the last resort option because of the drawbacks mentioned above. Depending on the state you live in, possible alternatives to guardianship include:

  • Living Trust – The elderly person can designate someone to handle financial affairs. Get a DIY living trust for a small fee.
  • Representative Payeeship – If the elderly person’s income is from government benefits, he or she may designate someone to manage this income.
  • Power of Attorney – The elderly person may give another person the right to act on their behalf. Get a DIY power of attorney form online.
  • Standby Guardianship – In some states, the elderly person may designate someone as a standby guardian, in case the person loses the ability to care for himself or herself.


How to Obtain a Legal Guardian of an Adult

Before applying to have a guardian appointed for your elderly loved one, check the laws of the state in which they reside because the process for applying for the appointment of a legal guardian varies from state to state.

The process will likely involve the following steps:

  • Petition or application to the court, usually the probate court, for the appointment of a guardian
  • Notice sent to the elderly person and their relatives, to inform them that an application has been made
  • Hearing to determine whether the elderly person is unable to make crucial decisions for themselves, and also to determine whether the person applying to be appointed guardian is suitable for the role

Depending on state rules and regulations, more steps may be involved in the process, such as an investigation to determine whether legal guardianship is appropriate. Additionally, state rules govern who can apply for a guardian to be appointed.

The process can become more complicated if the elderly person or a family member or friend objects to the application. The court will need to hear evidence from both sides to determine whether a guardian should be appointed and whether the person seeking appointment as a guardian is the right person to hold that role.

And because guardianship or conservatorship takes away some or all of the legal rights of the ward, courts generally view the appointment of a legal guardian as a last resort, so if an alternative is available—such as a properly executed power of attorney—the court will likely not appoint a guardian.


Qualifications of a Legal Guardian

Who may be appointed a legal guardian or conservator is also governed by state laws, and, again, different states have different requirements. Most states require guardians to be of the age of majority, and many will disqualify an applicant if they have a criminal record. And, of course, a legal guardian must not be incapacitated themselves, to the extent that they can’t take on the responsibilities of guardianship.


Guardianship of a Minor

Courts may appoint an adult guardian to care for a minor, who is not the child of the adult. Courts assign guardianships in a number of situations, including when parents have abandoned a minor, when a minor’s parents have died, or when a minor’s parents are incapable of providing proper care for the minor. A legal guardian may be a friend, family member, or other person the court feels will act in the minor’s best interest. As the minor’s legal guardian, an adult may be granted physical custody of the minor, or they may act as a financial guardian who exercises control over the minor’s property. In limited cases, an adult may be appointed by the court to serve as a guardian ad litem.

         Guardianship of the person. An adult with legal custody of a minor has the responsibility to provide for the minor’s physical and personal needs. While the minor’s parents are legally required to continue financial support of the minor, the legal guardian must ensure that the minor receives food, shelter, clothing, education and medical care. The legal guardian has the right to consent for the minor and make all decisions regarding the minor’s health and education. A legal guardian will maintain custody of the minor until the minor reaches the age of eighteen, or until a judge determines that the minor no longer needs a guardian.

         Guardianship of the estate. If a minor has a substantial amount of money or property, the court may appoint a financial guardian, or guardian of the estate, to manage and protect the minor’s assets. A guardian of the estate must make all financial decisions for the minor until the minor reaches the legal age or until the minor’s assets are depleted.

         Guardian ad litem. A court appoints a guardian ad litem to represent a minor’s interests in a legal proceeding. Guardians ad litem are typically appointed in divorce cases, probate matters or in situations where the minor has been abused or neglected.

Guardianship of an Elderly or Incapacitated Individual

Courts appoint guardians, or conservators, to protect the interests of elderly or incapacitated individuals. Because the creation of a guardianship may deprive an individual of some personal rights, certain steps must be taken before a guardian is appointed. An individual has a right to notice and representation by counsel before a guardianship proceeding. During the proceeding, the individual has the right to attend, confront witnesses and present evidence. If the court appoints a guardian, the guardian is encouraged to respect the ward’s wishes and give the ward as much autonomy as possible. As above, guardianship of an elderly or incapacitated individual may entail guardianship of the person, guardianship of the estate, or both.

         Guardianship of the person. Guardianship of the person requires the guardian to make decisions regarding the care and support of an elderly or incapacitated individual. The guardian may be required to consent to and monitor medical treatment, arrange professional services, monitor living conditions, and make end-of-life decisions and preparations. When making such decisions, the guardian is expected to consider the ward’s wishes and desires, as well as their physical and financial needs. The guardianship will continue until the ward passes away, or until the court determines that the guardianship is no longer necessary.

         Guardianship of the estate. Guardianship of the estate requires the guardian to assume responsibility for the ward’s personal property. The guardian must take steps to preserve and protect assets, distribute income, and obtain appraisals of property. The guardian must keep the court continuously informed of the status of the estate. Like a personal guardianship, a financial guardianship continues until the ward dies or the court otherwise determines that the individual no longer requires a legal guardian.


How Long Does Guardianship Last?

Most often, guardianship ends once a child is 18 years old. But there are a few other instances that could result in it ending, too – for example, if a dependent marries, enters a registered partnership or enters the military. Or, a guardian can decide he or she no longer wants to or can fill the role, or if they die, the court could step in and appoint a new guardian.


What Happens If I Die Without Appointing a Guardian?

If you do not formally name a guardian and you pass away, a probate court will ultimately appoint guardianship. The decision is based on what the court believes is in the best interest of the child or children.

Nobody wants to think about their children having to grow up without them, but being prepared in case the unthinkable happens can offer a peace of mind you won’t be able to find anywhere else. There’s a sense of power that comes with planning for the future…and it may just be the best gift you ever give your children.


Who Must Be Told About a Guardianship

Whenever a person asks to be named the guardian over a child or an adult, many other people must be notified. This gives other interested people a chance to participate in the case before the judge makes a decision. Read on for more information about who must be notified about a proposed guardianship.

Usually, when a person files paperwork asking to become the guardian over another person, the court will set a hearing. The hearing is where the judge will hear from the person asking to be the guardian, the person over whom the guardianship is requested (the “protected person”), and any other relatives or interested people who want to be heard by the judge. The proposed guardian must notify all of the required people of the guardianship proceedings; the court does not notify them for you!


People You Must Notify

The following people must be notified about any potential guardianship:

  • The person over whom the guardianship is requested (also known as the “proposed protected person”), if the person is age 14 or older.
  • The person’s spouse.
  • The person’s mother.
  • The person’s father.
  • The person’s maternal grandparents.
  • The person’s paternal grandparents.
  • The person’s brothers and sisters who are age 14 and older.
  • The person’s children who are age 14 and older.
  • The person’s grandchildren who are age 14 and older.
  • Any person who has custody of the proposed protected person.
  • Any person or officer of a care provider who has the care, custody, or control of the proposed protected person (for instance, a hospital, nursing home, or assisted living facility where the person is staying).
  • If the person receives any benefits from Medicaid, the Director of the Department of Health and Human Services.
  • If the person receives any payments or benefits from the Department of Veterans Affairs, any office of the Department of Veteran’s Affairs in the State of Nevada.
  • The proposed guardian, if the person filing the petition is not the proposed guardian.


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