When an elderly parent begins to show signs of cognitive decline, obtaining guardianship over the senior may be a prudent choice. An aging individual who is no longer able to make informed decisions requires a family member to legally make decisions, and this is done by becoming the parent’s guardian.
As seniors age, problems with cognitive functions may start to emerge. Due to stroke, dementia or brain injury, the individual may lose the ability to think clearly or make rational decisions about finances, healthcare, and other common matters of everyday life.
At this point, an adult child may seek legal guardianship to maintain the parent’s quality of life and safety. When an incapacitated parent has not appointed power of attorney (POA) to handle finances and healthcare decisions, guardianship becomes a feasible option.
Even if the aging parent had in advance made legal preparations for the future and named a power of attorney, the power of attorney may not be durable (which means the POA ends upon the parent’s incapacitation). In such instances, guardianship will be necessary.
What is guardianship and its different types?
Guardianship gives the adult child the legal right to make decisions about the parent’s healthcare, living arrangements and how daily needs are met. An adult child may be appointed either guardian of the estate or guardian of the person. Or, the family member may handle both the estate and person.
When a court appoints an adult child as guardian of the parent’s estate, the adult child makes some or all decisions concerning the senior’s property and the signing of contracts. Plus, the guardian will represent the parent in legal proceedings involving estate matters.
An adult child who is appointed guardian of the person will make personal decisions for the aging parent. The guardian will handle the parent’s decisions about medical care and support, for instance. Alternately, a temporary guardian may be appointed when there is an immediate need for a guardian.
Appointing a standby guardian may also be a wise decision, especially when the guardian has plans to travel overseas for extended periods. The standby guardian has the legal authority to act when the guardian is temporarily or permanently unavailable or dies.
How does an adult child obtain guardianship?
Seeking guardianship over an elderly parent is a long, costly process. The adult child must petition for guardianship through the courts. In court, the adult child must prove the senior to be incompetent, and proof of incompetency is obtained through expert findings.
Evidence of mental incapacity should be provided by the senior’s doctor via a letter or physician’s certificate. An aging parent may resist seeing a physician for the evaluation. However, the adult child can ask the courts to order the senior to undergo the medical examination.
The petitioner for guardianship will present evidence to the courts, showing how the aging parent is no longer independently capable of making reasonable decisions about some or all aspects of daily life. The elderly parent has the right to an attorney and to object the appointment of a guardian.
Proving the incapacity of the aging parent in court is just one of two major components of obtaining guardianship. The other half is showing the courts that the petitioner for guardianship is competent to be the elderly parent’s permanent guardian.
Most of the time in court will be spent evaluating the competency of the potential guardian. The court examines all actions of the petitioner, including personal financial and healthcare decisions. The adult child’s criminal background will be checked as well as credit history and conflicts of interest.
Additionally, the adult child requesting guardianship must show that a workable plan is in place and how the elderly parent’s funds will be utilized. A judge might even mandate a court-approved class so the guardian learns about expected responsibilities.
On occasion, more than one individual may seek guardianship over an elderly parent. In such cases, the courts will determine who is best qualified for the role. One family member may be appointed guardianship of the person and the other may be awarded guardianship of the property, for instance.
Courts give preference to family members, such as the senior’s children or spouse, when considering whom to award guardianship. Family members are more likely to be aware of the senior’s unique circumstances, needs and abilities. A court-appointed guardian may be necessary if family members are unwilling to assume the role.
Why is guardianship necessary?
Guardianship is critical when a senior is unable to provide self-care, is vulnerable to financial exploitation, or requires protection from abuse, violation of rights, and neglect. Some seniors do not understand their legal, civil, and human rights and are subject to exploitation by institutions and individuals.
Advocating for a vulnerable parent may only be possible when the adult child has the legal right to act for the senior. Long-term care services, for example, may require informed consent of a care plan—and the guardian is able to provide access to such needed services.
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