Senior Guardianship

Future planning is crucial as your loved one begins to age. Not only does designating a Power of Attorney, creating a will, and considering a Do Not Resuscitate order give the older adult the opportunity to advocate for their own wants and wishes, but it also ensures family members are all on the same page. Future planning also can help your loved one and family avoid costly and time-consuming legal issues.

For adults that do not have a Durable Power of Attorney named, if they are unable to make their own decisions, they will be appointed a guardian and/or conservator. In most cases, this appointed person is not initially a family member.

Here’s what you need to know about guardianship and how to avoid it.

What is a guardian?

A guardian is a person designated to make decisions on behalf of an adult who can no longer do so on their own.

When is a guardian needed?

The Court appoints a guardian when an adult can no longer make decisions on their own behalf, and when the adult has not designated a Durable Power of Attorney.

How does the Court determine when an adult can no longer make decisions on their own?

The Court will get information and recommendations about the adult’s decision-making abilities from their physician and medical team. Adults who might no longer be able to make decisions on their own can be adults who have dementia or cognitive decline, who have had a recent stroke, as well as those who are living with other neurological disorders.

Why doesn’t the Court appoint a family member as a guardian?

In many cases, the Court will not initially appoint a family member as a guardian as they need to do their due diligence and ensure the family member is the right choice. The court wants to be sure the family member will not take advantage of the role of guardian. Instead, the court will often appoint a professional guardian, who will charge a fee that is taken right out of the senior’s estate.

Can a family member petition to be the new guardian?

Yes. A family member can petition the Court to become the guardian of their loved one. However, the process can be costly and time-consuming. The Court may ask for documents, like bank statements or credit reports, in order to determine whether the family member will not financially abuse the older adult.

If there is more than one family member petitioning to be the guardian, or if there are any disagreements among the family regarding a guardianship petition, the Court will sort it out.

What is a conservator?

Sometimes, depending on where you live, the terms guardian and conservator are used interchangeably. However, a guardian typically is in charge of making decisions related to health care needs while the conservator is responsible for making decisions related to financial needs.

How can I avoid a guardianship situation?

The best way to avoid a guardianship situation is to ensure your loved one appoints a Durable Power of Attorney. Work with an elder law attorney in order to create an estate plan that gives the older adult autonomy over their future while placing safeguards into place so that family members can avoid court proceedings in order to get guardianship if needed.

Learn more about future planning, including information about Power of Attorney by visiting our blog.

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