Long life is a blessing indeed. Many parents desire to grow old to see many generations after them. However, aging also comes with its fair share of challenges. Eventually, you will realize that your loved one is not in a good position to make informed or rational decisions about issues. That includes finances, healthcare, and other aspects of their life. At this point in time, seeking legal guardianship of an elderly parent becomes an option worth considering.
That includes health, safety, assistance with activities of daily living (ADL), and gradual loss of the capacity to think clearly and make informed decisions. It is at this stage that symptoms of conditions like Alzheimer’s and dementia begin to show in elderly people. In turn, it may affect their physical and cognitive function. Read this article to learn more.
What does guardianship of an elderly parent mean?
Elderly guardianship or elderly conservatorship is when the court appoints an individual the power to care for an elderly person. An elderly person who can’t take care of themselves due to illness, age, or disability is referred to as the ward. Thus, the guardian appointed by the courts undertakes certain roles and responsibilities on behalf of the elderly individual. The guardian agrees to act in the best interest of the ward in all matters.
In many instances, guardianship and conservatorship are interchangeable. However, in some states, a guardian is involved fully in the life of the ward. meaning, they can make a wide range of decisions on his/her behalf including personal, medical, financial, and other decisions. On the other hand, a conservator has limited responsibility usually financial decision-making which touches on the ward’s bills, investments, and other financial decisions.
Difference between guardianship and POA
It is also important to note the difference between guardianship and the power of attorney (POA). The power of attorney allows an individual (the principal) to choose whom they wish to act on their behalf. However, unless the principal issues a durable POA that allows another person to act on his/her behalf even after incapacitation, the court may have to step in to appoint guardianship upon incapacitation.
The bottom line is that both guardianship and POA are essential tools for the elderly that they can take advantage of as they approach and during their golden years.
When is guardianship of an elderly parent necessary?
When you notice that your parent or loved one is no longer properly managing their bills, investments, and finances, taking their medication, etc., take note. This may be a cinch that they could be unable to care for themselves thus need guardianship.
However, there are other reasons when the guardianship of an elderly person becomes necessary. Including:
- When they are vulnerable to personal or financial exploitation.
- They are unable to recognize hazards that threaten their safety or seek assistance for the same.
- When they are unable to make and take sound decisions about the management of their finances. Including, management of their accounts, bills, budgets, and investments.
- Refusal or being in denial when appropriate care is administered.
- When there is a need to amend or create a trust in their advanced age.
- Signs of incapacitation or cognitive impairment which is usually an indication of the onset of dementia, Alzheimer’s disease, or other old-age conditions.
Who can be a legal guardian of an elderly person?
Anyone who is appointed by the courts can be a legal guardian for an elderly person. This guardian literally takes over the decision-making and authority of the ward. As such, a person undertaking the guardianship of an elder should be someone close enough who knows him/her and can act in their best interest.
Usually, the court may prefer to appoint an immediate family member or close relative, mostly because they are more familiar with the person. Still, there are cases where close family members are unqualified. So, the individual appointed can be a close friend, professional, or anyone that the court feels is apt enough to act in the best interest of the ward. In addition, a guardian should be prepared to prove to the court that he/she is the most suitable person to take responsibility for the elderly person.
What if there are two people petitioning?
When there are two or more individuals petitioning for guardianship, the court will decide either who is the most qualified among them or distribute duties between them. For instance, one may be assigned to handle their health affairs. Then the other may need to handle daily living duties. Additionally, another person may be assigned to take over the financial responsibilities.
How to get guardianship of an elderly parent
Anyone seeking guardianship of an elderly parent should prepare to prove to the court that the parent needs guardianship. Furthermore, they need to show that he/she is the most suitable person to take up the responsibility.
This is how the 3-step process looks like:
You or any other person requests guardianship of a person by filing legal documents with the court. This includes a medical report proving that your parent or loved one is incapacitated and unable to care for him/herself. It could also be a living will or advanced directive assigning you the responsibility of their guardian.
The court will undertake a background check for the person seeking guardianship. This involves a criminal check, credit history, and the possibility of a conflict of interest. It will also factor in the preferences of the ward and a non-durable POA if any. Also, the courts might consider any other legal decisions made previously by the ward before being incapacitated.
Once the court determines that you are the most suitable, the court assigns you the duties and responsibilities of caring for them. This includes managing their finances, health and medication, daily living arrangements, and other duties.
As simple as it sounds, this process takes time and money. If family members do not agree, the process will demand more resources and is often more costly involving several court hearings. It is advisable to consult a lawyer to assist you through the process of petitioning for guardianship.
How much does it cost to get guardianship of a parent?
The cost of guardianship is determined by the type of guardianship you are pursuing. There are three main types of guardianship which are:
- Full guardianship: This guardianship takes full authority and decision-making responsibility for the parent.
- Limited guardianship: This guardianship gives a limited responsibility for property, health affairs, finances, or daily living affairs of the parent.
- Joint guardianship: This guardianship shares the guardianship responsibility between two or more individuals.
Based on the court guidelines, guardians are entitled to some form of compensation for the services they render. In many cases, however, the spouse, adult children, or the close relatives of the ward often do not charge a fee for their services which is allowed.
However, professionals or private guardians are often paid for the services that they provide. This fee comes from the ward’s estate if they can afford it or from other sources approved by the court. Wards who can not afford to pay the services of a guardian will have a public guardian appointed to them by the state. This will also happen if the ward does not have family or close friends to care for them.
Here is a breakdown of how much guardianship proceedings can cost:
- Opening of a guardianship petition at the attorney – $1,500 – $6,000
- Ongoing legal fees per annum – $300 – $500
- Filing for application fees, service fees, letters of guardianship, and other court fees – $670
- Attorney ad litem appointed by the court – $1,000 – $1,500
- Other professional fees including physicians, nurses, or social workers fees (Exam Commitee) – $1,000 – $ 1,500
- Guardianship class – $100 – $150
- Background check – $75 – $125
In the end, the total fees can range between $ 6,000 and $9,000. The cost may also depend on the work involved and the nature of the case. A contested or litigated guardianship may cost more.
Taking guardianship of an elderly person
Taking guardianship of an elderly person is a court process. The prospective guardian must submit the required documents and forms in the probate court. Finally, the court determines whether the ward really needs guardianship and if the prospective guardian is most suitable for the role.
How to apply for guardianship of an elderly parent:
1. Get a doctor’s letter or physician’s certificate
Let’s say you start noticing signs of incapacitation of your elderly loved one. The first step you need to take is to seek a mental and physical health check certificate from a doctor or physician. The certificate will prove that your loved one can not care for themselves or make decisions. The court may also appoint a physician or doctor to perform the medical examination.
2. File an application for guardianship
Filing for guardianship in a court involves presenting a mental and physical health certificate. If the elderly person refuses, the court can order it after you have file an application for guardianship.
The court then follows the processes to determine the needs of guardianship and if you are the most suitable person to take the guardianship. For instance, they may do a background check (criminal, credit, and conflict of interest) to determine your suitability for the role.
3. Issue of notice to the relatives of the proposed ward
Once you file for guardianship, notify the proposed ward’s family members, friends, or anyone who has a legal right to be notified about the application. Check your state’s code on guardianship petitions to know who you should notify.
4. Consider other options for guardianship
Guardianship proceedings can be quite costly and may take time as is typical of court proceedings. You may want to consider options like power of attorney (POA). Others include supported decision-making agreements, medical proxy, payee representative, advanced medical directives, and living wills. These are far less involving and less costly compared to guardianship. Furthermore, the process for these doesn’t take as long.
5. Appointment of Attorney or Guardian Ad Litem
After an application for guardianship, it is the duty of the court to appoint an attorney (Ad Litem or Guardian Ad Litem) to represent the ward. This appointment will do its best to execute the desires of the ward. They are also charged to carry out further investigation as they deem best.
What does a guardian of an elderly person have to do?
Upon appointment as the legal guardian of an elderly person, it is important to remember the following:
- You can only act within the limits authorized by the probate court.
- If possible, seek the ward’s input during decision-making and/or act in their best interest.
- Submit the court papers to Social Security Administration to apply as their representative payee.
- Submit the court papers to apply as their representative for their incomes, mutual funds, and investments.
- You are responsible for their medical and end-of-life decisions including housing arrangements and daily care.
In short, you will be assuming the role of a caregiver but with decision-making authority. This will depend on the level of their inability.
Some of the roles that a guardian undertakes include:
- Determining where the elderly will live whether in their home or an elderly community housing facility depending on their requirements and interests.
- Managing and overseeing caregivers.
- Decision-making and overall management of the ward’s finances including paying and managing bills, and investments, as well as tracking expenditure and maintaining proper financial records on behalf of the ward.
- Property management which includes their real estate, securities, and others.
- Management of medical affairs including providing consent for medical treatment, overseeing prescription medication, doctor visits, therapy, counseling services, medical insurance settlement, and acquisition of mobility.
- Annual reporting of the progress and/or status of the guardianship.
- Sharing, protection, and consenting to the sharing of the ward’s confidential information.
While they may not be aware of it, elders at some point in their lives will require guardianship. With someone else handling their life affairs in their best interest, parents can live a quality, stress-free life. While, guardianship may seem like a long, grueling process, it is worthwhile in the end. Alternatively, you can consider options like the power of attorney which are less time-consuming and less costly. If you are unsure of how to get guardianship for an elderly parent, consider consulting a qualified lawyer to assist you with the process.