Adult Guardianship: Caring for an Aging Mother or Father

By on May 6, 2014

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Mom has always been there for you, and there may come a time when she needs care in return. It’s difficult to watch aging parents decline in mental and physical health, but it’s a reality many of us will face in our lifetime. Do you know your options if one or both of your parents can no longer care for themselves or make decisions regarding their financial and health matters? If the need arises, becoming a legal guardian will ensure you are able to work with care providers and make decisions on mom’s (or dad’s) behalf.

What is a Guardianship?

A guardianship, also called a conservatorship in some states, is the legal right to make decisions on behalf of a person deemed “legally incapacitated”— unable to function mentally and/or physically to the extent they lack the ability to make sound decisions or engage in responsible actions.

In a guardianship proceeding, a court decides whether a person with diminished mental or physical capacity should retain their rights to make their own decisions. Usually, a family member, friend, or healthcare professional will consult an attorney to facilitate the process.

In order to be deemed legally incapacitated, the person must be examined by a physician, psychologist, or psychiatrist. Court proceedings commence once all medical results are submitted, and the court ultimately decides whether the person needs a full or limited guardianship.

Types of Guardianships

A guardian can be responsible for a person, an estate, or both. When you are appointed a guardian for an incapacitated person, that person can no longer make decisions regarding their affairs. There are a few different types of guardianships:

  • Guardianship of Estate: You are responsible for all real estate and financial decisions.
  • Guardianship of Person: You are responsible for all non-financial decisions.
  • Guardianship of Person and Estate: You are responsible for all decisions, financial and otherwise.

Guardianships can be full, as described above, limited, or joint. In limited guardianships, the court allows the incapacitated person to make any decisions they feel they are capable of making. In joint, or co-guardianships, two people, you and your sibling for example, may share the decision-making responsibility.

Eligibility

You wouldn’t want just anyone taking care of mom or dad, would you? Of course not! You want to be sure their guardian is responsible and keeps their best interest in mind. That’s why there is criteria that must be met.

  • You must be at least 18 years of age or older.
  • You must be of sound mind and have the mental capacity to make decisions.
  • You must not have been convicted of a felony or gross misdemeanor involving dishonesty or immorality.
  • The court must find you suitable to perform a guardian’s duties.

In the United States, about 2/3 of guardianships are held by family. If it’s not possible for a family member to act as a guardian, the court will appoint a professional guardian. While there is no 4-year degree for professional guardians, the National Guardianship Association has established some standards of practice and continuing education for people who do this for a living. There is even a certification program now. This should give you piece of mind in case a professional guardian is appointed to handle your parent’s affairs.

Advantages & Disadvantages

There are both advantages and disadvantages to acting as a legal guardian. Establishing guardianship makes it clear to your family and third parties that you are responsible for decision making.

While it’s good that there is clear authority, guardianships are costly and time-consuming to establish. It requires hiring a lawyer, a lot of legal paperwork, and a court hearing. There is also an emotional component often forgotten. Older adults may feel humiliated that they can no longer take care of themselves, or the family may disagree with who is appointed guardian. Communicating your intentions to your family is the best way to avoid negative feelings.

Responsibilities

Acting as guardian for a parent is a big responsibility. Your primary job is acting in their best interest and considering their values while making financial and healthcare decisions, and decisions about where they will live. You are there to advocate for them and engage professionals that can help them, but you are not necessarily responsible for caregiving, unless that’s a role you choose. You are also not responsible for managing every aspect of their life.

Should a dispute arise about what is best for your parent, a case manager can help you work out a compromise that is in their best interest. If you, your parent, and the case manager cannot reach resolution, the court will make a final decision.

When you are a guardian, the court supervises the choices you make on your parent’s behalf. After you are appointed guardian, the court requires you to provide annual reports, so be sure to keep good records. The annual reports help the courts ensure your parent is benefiting from the decisions you make.

A guardian’s responsibilities vary by state and can include the following actions:

  • Choosing a residence
  • Consenting to release of confidential information
  • Making healthcare-related decisions, such as medical treatment and end-of-life decisions
  • Making financial decisions, including acting as a payee
  • Managing personal and financial assets and property
  • Receiving income that goes to the estate
  • Obtaining court approval for property sales, etc.

Establishing a guardianship is typically more expensive than other routine estate planning because of attorney fees and the court’s involvement. If your parents have not done any estate planning, a guardianship may be the only way to protect their personal and financial asset, and ensure they receive proper care.

Life of a Guardianship

Guardianships are perpetual as long as:

  • your parent remains legally incapacitated
  • you remain competent and able to make sound decisions
  • you meet the court’s statutory requirements
  • you act in your parent’s best interest

If you fail to meet this criteria, the court can take away your rights to make decisions on your parent’s behalf. However, you remain legally responsible for your parent’s actions even though you may not  be able to make decisions.

A guardianship really should be an answer to a worst-case scenario or a last resort. With proper planning, they can be avoided. Encourage your parent’s to engage in estate planning and establish a Durable Power of Attorney, a will or living trust, and an advance health care directive while they are of sound mind. Planning ahead will ensure their personal and financial assets are protected, and that they receive the best care possible.

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About Toni Banks

Contributing writer for FSN - As a professional writer for the Legal, Finance, and Technology industries, Toni understands there is an overwhelming amount of information available to you and wading through confusing terminology and difficult concepts can be difficult. Her primary aim is to offer focused, clearly-written information on current topics that resonate with her readers. Find Toni on !

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