Whether you seek legal counsel for yourself or a loved one, elder law attorneys have…
Guardianship of an aging parent means acceptance of significant legal responsibility to act and advocate for their care. The duties include a parent’s daily care, medical care, and possibly financial decisions made on their behalf. Many guardians are family members who were previously caregivers, now cast into a formal legal role. At the same time, some are professional guardians appointed to circumvent problems of well-established family conflict and disagreement. Becoming a guardian requires a court hearing and possibly a medical provider confirmation of incapacity of the proposed ward (in New York, “Alleged Incapacitated Person” or “AIP”). In legal terms, a ward is either a minor or an incapacitated adult under the protection of a legal guardian. Incapacity can include cognitive decline, dementia, schizophrenia, brain injuries, prescription drug impairment, inability to perform daily living activities, or other serious health conditions.
Sometimes an aging parent may disagree that they need a guardian, which can lead to contested guardianship hearings. There may also be disagreement as to the proposed guardian. A variety of concerns are often expressed during a contested hearing where family members may be unable to agree due to longstanding relationship issues. A contested hearing can become costly, with family members opposing the guardianship becoming responsible for their legal expenses. In cases such as these, a professional guardian is preferable to settling issues between a family where conflict is the norm. Before guardianship is granted, documentation of cognitive impairment like dementia or physical incapacity precluding a parent from making good decisions about their care should be presented to the court. This documentation substantiates the degree of the AIP’s impairment as evidence for the guardianship petition. A medical assessment, including a neuropsychological evaluation, provides additional proof for the need for guardianship.
In most cases, when a guardian of the person is appointed, so is a guardian of the property (in some states called a “conservator”). The guardian of the property ‘s responsibility is to manage property and money. Some family members act as a guardian of person and property. But sometimes a family member may serve as a guardian of the person while a professional is appointed as guardian of the property to provide an additional oversight or a system of checks and balances. A court-appointed family member guardian of person and property is assumed to act in the best interest of their family member. If there are enough funds available, a guardian can hire caregiving help or provide different types of therapies or utilize adult daycare. A guardian of property’s responsibility to manage funds in the best interest of the aging parent should dovetail with the guardian of person’s goals, and in no way should these funds be conserved to guarantee adult children an inheritance to the extent that they can be used for the benefit of the aging parent. Guardianships differ from state to state, including the terminology used for guardians. Some states have an office of public guardianship that accepts cases from low-income individuals and some private clients. Just as in estate planning, probate attorneys, and elder law, it is crucial to retain an attorney specializing in the area of guardianships.
The process can be long and complex, particularly in the case of an aging parent, as they will lose important rights having their care entrusted to another person. A general discussion between the aging parent or older person and their relatives as to why guardianship is the best way forward is a good place to begin. The legal process starts with filing a petition for appointment of guardian form. This form includes information about the proposed ward and their relatives, the person submitting the request, the reason guardianship is necessary, and an explanation as to why alternatives to guardianship are either not available or appropriate. A court hearing is scheduled, and a court investigation commences to determine, prior to hearing, if there is a need for guardianship. During the hearing the judge reviews the petition, listens to statements, and determines whether or not to grant the guardianship petition. Every court-appointed guardian is entitled to reasonable compensation for their services. Often when a guardian is a spouse, family member, or close friend, they will waive any payment. In the case of a private or public guardian, the individual is paid directly from the ward’s estate.
An aging parent’s ability to accept the idea of guardianship on their behalf is an admission that they cannot maintain their independence. It is best to be very clear about the process and not mislead them or create unnecessary stress by not fully understanding all that is involved. Retaining an attorney who specializes in guardianship can protect the process from missteps and make it a smoother transition for all parties involved.
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