Legal Guardianship of an Aging Parent: What You Need to Know

Legal Guardianship Of An Aging Parent: What You Need To Know

Watching a parent age can be an emotional journey – this is especially true if their health deteriorates and their ability to make sound decisions declines. Whether it’s due to Alzheimer’s, a stroke, or another serious health condition, there may come a time when they can no longer manage their finances, healthcare, or daily needs independently. If that happens, an intervention is often necessary to protect their well-being.

Elder Attorney Cathy Sikorski says the most important step you can take for yourself and your loved one is to name a Power of Attorney (POA) —before a crisis arrives. “However, if a POA isn’t named, the last resort or emergency step would be a Guardianship process, explains Cathy, “which involves the court, medical experts, expense and loss of precious time.”

Legal guardianship is a court-appointed role that grants a person the authority to make decisions on behalf of a loved one if they become unable to do so. “While having a POA in place is the best solution, it’s important to understand legal guardianship and to know how to obtain guardianship of an adult should it become necessary,” says Cathy. “Guardianship  can provide a pathway to clarity and peace of mind in times of crisis, ensuring your loved one receives the care and protection they need.”

When (and Why) is Legal Guardianship of an Adult Necessary?

Given its significant legal implications, guardianship of an elderly parent is regarded as a last resort when less restrictive alternatives, such as power of attorney, are unavailable or ineffective. Guardianship is usually pursued when a parent or loved one becomes unable to care for themselves due to cognitive decline or severe health issues.

Legal guardianship grants a guardian authority to make critical medical, financial and daily care decisions to ensure their best interests and well-being. Guardianship also helps protect against financial exploitation, manage healthcare and treatment and arrange appropriate living situations.

3: Emergency Guardianship
Sometimes, immediate action is needed to protect your loved one’s safety and well-being. If that happens, emergency legal guardianship may be necessary. This temporary, expedited arrangement allows a guardian to step in quickly, ensuring urgent needs are met until the court can establish a permanent solution.

Emergency guardianship should only be considered in urgent situations—like if your loved one’s health is in immediate danger or a critical decision needs to be made about their care or finances. Even if they’ve appointed someone under a power of attorney, there are times when that agent isn’t acting in their best interest. In those cases, emergency guardianship is arranged to protect their interests.

Power of Attorney vs Guardianship

Power of attorney is a voluntary legal arrangement where an individual chooses someone to make decisions on their behalf, while guardianship is a court-appointed relationship where a guardian is given authority to make decisions for an incapacitated adult who can no longer manage their own affairs. The key difference is that power of attorney is established proactively by choice, whereas guardianship is imposed by a court when an individual is deemed incapable of making decisions for themselves.

However, even if a power of attorney exists, guardianship may still be necessary if their POA is not durable, meaning it ends upon their incapacitation. Courts most commonly see family caregivers seeking guardianship for adults with dementia who did not make proper legal preparations for the future.

Conservatorship vs Guardianship

In many states, the terms conservatorship and guardianship are used interchangeably. Some states use only guardian, while others distinguish between Guardians of the Person (responsible for medical and personal care decisions) and Guardians of the Estate (responsible for financial matters). In states differentiating the two, guardianship generally covers personal care, including medical decisions and living arrangements, while conservatorship focuses on managing financial affairs, assets, and property.

Incapacity requirements may also vary. Guardianship typically requires your loved one to be legally incapacitated, while conservatorship can sometimes be voluntary. Additionally, guardians are often family members or trusted individuals, whereas conservators may include professionals, lawyers, or organizations.

Reviewing and understanding the difference between guardianship and conservatorship in your state is key.

Who Can Become a Guardian?

Cathy says that courts appoint the guardian. “Courts generally favor appointing family members as guardians as long as they are 18 or older, have a clean criminal record, are financially stable and have no conflicts of interest. However, a professional or public guardian may be appointed if a relative or close family friend is unwilling or unable to serve in this role. And, guardians are subject to court oversight, which usually requires at least annual formal reporting to the court.”

Do Guardians Get Paid?

Yes – and no. Family guardians typically are not paid, but private ones are paid from the ward’s estate with court approval. Public guardians are funded by the government or donations.

Responsibilities of a Guardian

A guardian’s main responsibility is to look out for the best interests of the older adult. This can involve making important decisions, like whether they need nursing home care or in-home support, as well as managing their daily personal needs. Guardians also handle financial matters, coordinate medical care, and ensure treatments are in place. Beyond the basics, they play a key role in keeping their loved one socially engaged and involved in activities that enhance their quality of life.

Obtaining Legal Guardianship of an Adult

To obtain legal guardianship of an elderly parent, experts say to follow these five steps:

1. Obtain proof of incapacitation through a medical examination of your parent. A physician’s certificate or letter is required to verify that your parent cannot make or communicate decisions about their personal or financial affairs.
2. File an application for guardianship of an elderly parent with the court in the county where your parent lives. This typically includes a petition for appointment of guardian and may require various documents and filing fees.
3. Notify related parties about the guardianship application, including your parent and other family members.
4. Attend a guardianship hearing where you must present clear and convincing evidence that your parent needs a guardian. This may include medical reports, social service reports, expert testimonies, and financial records.
5. Accept the court’s decision. If granted, the court will issue an appointment order, which may be for full or limited guardianship.

Consult With a Legal Expert

Elderly guardianships are complex and have consequences. “Using legal templates and trying to do this on your own and comply with court requirements while keeping your loved one’s best interests in the forefront is difficult,” says Cathy. “If you’re considering legal guardianship for a parent or loved one, seeking professional legal advice is critically important. Their funds are responsible for paying for legal costs.”

Where You Live Matters

Where You Live Matters is powered by the American Seniors Housing Association (ASHA), a respected voice in the senior housing industry. ASHA primarily focuses on legislative and regulatory advocacy, research, and educational opportunities and networking for senior living executives, so they can better understand the needs of older adults across the country.

Sources:
Care.com
Legal Zoom
Findlaw

About Our Expert
Cathy Sikorski has been a significant caregiver for the last 20 years. In addition, she has been a practicing attorney in her own practice, dealing mainly in Elder Law. She has over 12 years of experience and education in Medicare, Medicaid, and Social Security issues. She is also a noted author, humorist, and speaker. Read her full bio.