Estate planning, including naming a durable Power of Attorney, is the main way an older adult can express their wishes.
Knowing what the older adult wants can empower family members and other designees to advocate for those wishes. However, sometimes proper future planning does not always happen due to a surprise medical event or the person believing they have more time to make the decisions they need to.
If your loved one cannot make decisions for themselves, and if they have not named a durable Power of Attorney, you will need to petition the court in order to gain legal guardianship of your loved one. Here’s what you need to know.
Without someone legally named to step in and make decisions on behalf of the older adult, like a Power of Attorney (or POA), a legal guardian can be appointed by the court.
As appointed legal guardian, guardians must act in the best interest of the older adult and are authorized to make decisions on their behalf.
No. Without a designated Durable Power of Attorney, the court must decide who will become the legal guardian.
A family member is not necessarily guaranteed to be named as a legal guardian, and the guardianship process can become expensive and take a long time to move through court.
Legal guardianship can get messy, especially if family members are competing to become the legal guardian of their loved one.
The court will ultimately decide which petitioner would be the best option. If no family member is deemed appropriate as a legal guardian for their aging parents, the court can appoint a public or professional guardian that has no ties to the family. These guardians are paid through the older adult’s estate, typically on a monthly basis.
Appointing a legal guardian should be a last resort. Preferably, the senior will already have received the legal help they need to name their own Power of Attorney so that any adult guardianship is not needed.
Depending on where you live, you might hear the titles of guardian and conservator used interchangeably.
However, you might live in a state where the guardian is in charge of personal and healthcare decisions for the senior and the conservator is in charge of financial decisions.
A conservatorship allows a designated person, or conservator, to control the finances and possessions of an incapacitated person. In contrast, guardianship gives permission for an appointed guardian to manage all decision-making for a person, including making all of their medical decisions, personal decisions, and more. This person may also have permission to make financial decisions as well and can manage payments, such as social security, on behalf of the older adult.
No one can become a guardian over a senior until the senior can no longer make safe and appropriate decisions for themselves. For example, here are a few conditions or situations that might cause a senior to need someone to make decisions on their behalf:
A court will determine if the person is no longer able to make decisions on their own. They will likely consult with the person’s physician and clinical team in order to make the best decision.
Then, if the senior is deemed unable to make their own decisions and if the senior has not appointed a Durable Power of Attorney, a legal guardian will be appointed. If a family member wants to then become the legal guardian, they will need to work with a lawyer in order to petition the court for guardianship.
A guardianship petition can take a long time. The court works hard to hear both sides of the story and will also ensure that the risk of elder abuse is low, especially since the older adult might have the incapacity to report it on their own.
Obtaining legal guardianship can be tricky, time-consuming, and expensive.
Be sure your loved one is advocating for their own wishes by appointing their own Durable Power of Attorney and completing other documents, including a Do Not Resuscitate (DNR) order, if they prefer that.
Work with a lawyer specializing in elder law in order to establish any further estate planning so that your family doesn’t need to visit the court in order to obtain legal guardianship.
Haley Burress is a senior care and caregiving expert. She worked in senior care for more than 15 years before writing for senior care agencies and professional caregivers full-time. She has experience in Skilled Nursing Facilities, Assisted Living, Independent Living, and Memory Care as well as Adult Day services and home care.
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