As our parents age, some may become unable to manage their daily affairs or make decisions regarding their health or finances. If this happens, you might face the difficult decision of seeking guardianship to protect them and ensure that their needs are met. Guardianship is a legal process where a court appoints someone to make decisions for someone who can no longer do so. This process, while complex, can bring peace of mind to families who are concerned about the well-being of a loved one.
Guardianship is a legal arrangement where the court appoints someone (called a "guardian") to make decisions for another person (the "ward") who can no longer manage their affairs. In some states, this process is referred to as "conservatorship." Guardianship is typically seen as a last resort when other legal tools, such as a durable power of attorney or a healthcare directive, are not in place or are insufficient to meet the needs of the individual.
In most states, anyone concerned about an individual's well-being, such as a family member or close friend—can petition the court to establish guardianship. The concerned individual typically files the petition in the probate court of the ward’s county of residence. Courts prefer people already playing an active role in the person's life, such as a spouse, child, or close family member. Guardians can also be neighbors or even professional guardians.
According to Elder Law Answers, the first step in obtaining guardianship is filing a court petition. This document explains why guardianship is necessary and outlines the level of assistance the proposed ward (your parent) requires. After filing, the court will schedule a hearing to determine if the person is incapacitated and needs a guardian.
At the hearing, the court will consider medical evidence and testimony to assess the individual’s ability to manage personal and financial affairs. The proposed ward is usually present at the hearing and has the right to legal representation. The court may appoint one if your parents cannot afford an attorney. During the hearing, the judge will also evaluate whether the person seeking guardianship (you) can serve in this role.
Sometimes, a parent may resist guardianship, believing they can still manage their affairs. Courts take this resistance seriously and will only appoint a guardian if it is proven that the individual cannot care for themselves. Your parent can voice their concerns at the hearing, and the court will weigh this testimony against medical evidence.
Multiple individuals can share guardianship as co-guardians. One typical case of co-guardianship occurs when two siblings want to share the responsibility of caring for their parent. Courts will appoint co-guardians if they determine it is in the ward's best interest. Both individuals must demonstrate that they can work together effectively to manage the ward’s needs.
A guardian can be a family member, a close friend, or even a professional guardian. If no suitable guardian can be found, the court may appoint a public guardian, a government agency that steps in when no one else can fill the role. Individuals can sometimes plan ahead by naming a guardian in advance through a durable power of attorney.
If you are unsure whether guardianship is necessary, consider the following signs:
If any of these situations apply, Aging Care states it may be time to consult an elder law attorney to explore guardianship options and determine the best course of action.
Navigating the process of obtaining guardianship can be overwhelming. However, you don’t have to do it alone. Consulting an experienced elder law attorney can help you better understand the process, meet your parent’s needs and obtain peace of mind.
Don’t wait until it’s too late to protect your loved one; schedule a consultation with our firm today. We’ll discuss your guardianship options and guide you through creating a plan for your parent’s future.
References: Elder Law Answers (Aug. 4, 2021) “How Do I File for a Guardianship?” and Aging Care “How to Get Guardianship of an Elderly Parent”
