Updated January 16, 2021
Guardianship of an elderly parent is a legal relationship created by the court. It gives an individual the right to care for a person who is no longer able to care for themselves. The guardian is responsible for the welfare and safety of the senior.
Sometimes guardianship is temporary, due to an emergency. Oftentimes, however, legal guardianship (by a family member) is sought after if a senior loved one has been diagnosed with some type of cognitive impairment such as dementia or Alzheimer’s and is unable to care for themselves.
These types of diagnoses can severely impair someone’s ability to make rational decisions on tasks such as paying their bills, avoiding scams and caring for their medical needs.
If you’re considering guardianship for elderly parents or loved ones, know that this isn’t an easy decision to make but sometimes it’s a necessary one for the best interest of the elder.
Know that a legal guardian can be any of the following:
- spouse / domestic partner
- family member
- state / local agency
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Guardianship Vs POA (Power Of Attorney)
The legal terms used in guardianship can be confusing.
One term you might hear used frequently in conjunction with “guardianship” is “power of attorney” or POA.
Both roles actually have the same goal in mind: helping an elderly parent who for one reason or another isn’t able to make decisions for themselves.
The difference comes down to how the person for the role is selected. An individual appoints who they want to act as their power of attorney, however the court appoints a legal guardian.
There are different types of POA’s depending on what you want covered, including:
- Special or limited
As an example, my elderly parents appointed me as their power of attorney in medical decisions, so when my mother was diagnosed with a terminal illness, I was the one who talked to her doctors, got involved in her treatment, decided when to sign up for hospice care, etc.
In Mom’s case, she had the ability to name me as her POA, but what if the situation had been different and she had been unable to make her wishes known (example: maybe she was unconscious and someone needed to step in and make medical decisions for her)?
In those types of instances, the court appoints a guardian when someone becomes incapable of making good decisions.
Guardianship is a legal relationship giving the guardian authority to make legal, financial, and health care decisions for the ward (the elderly loved one).
Guardianship is usually a last resort after something like a power of attorney has already been tried.
Guardianship Vs Conservatorship
In many states, a guardianship and conservatorship are the same thing and are used interchangeably.
Some states, though, may use the terms separately. In these cases, the main difference between these two is in the duties.
- a guardianship covers just about every duty in an elderly person’s life
- whereas a conservatorship deals with only financial issues.
In a guardianship, the judge may require the guardian to take out a bond. The bond serves as an insurance policy for the elderly person.
If he/she does not carry out their duties responsibly and money is lost or stolen, the money is paid back to the ward through the bond.
If the court doesn’t require a guardian to take out a bond, it may limit the amount of funds he/she can take out of the elderly person’s account without approval.
A conservator does not normally have the same financial restrictions but usually has no power over medical, health, living, and recreational activities.
How To Get Guardianship of An Elderly Parent
To get guardianship of an elderly parent there has to be proof that the senior is incapacitated such as a physician’s letter and that the person seeking guardianship is determined to be responsible and fit to be a legal guardian.
The legal process of getting guardianship of your senior loved one is not a simple one and it varies from state to state.
We do recommend that you seek the counsel of an elder law attorney who may tell you to document all the instances that you witness that makes you believe that your parent(s) may not be able to responsibly care for themselves.
Although it varies, you will generally follow these steps:
1. File A Petition For Appointment Of Guardianship
The first step in getting guardianship of an elder is filing a petition with the court. In this petition, you will generally have to cover the following information:
- Explain why you are requesting guardianship
- Provide a description of your father’s limitations and his inability to care for himself
- Attach records that show you have explored other alternatives, i.e.: power of attorney, living trust, representative payeeship, standby guardianship (only available in some states)
- The type of powers you are requesting (i.e.: financial, medical, etc.)
- An estimated value of assets and income
2. Inform The Senior, As Well As Other Family Members Of Your Intentions
As I’ve already mentioned, becoming a legal guardian for an elderly parent is very serious.
Your parent basically will no longer have much, if any, say in their affairs. Many of their rights are essentially stripped away.
Because of this, it is very important to talk to them about your taking on the guardianship role (as much as they can understand), as well as the rest of the family.
If the family is not all on the same page, it could become quite the mess once your petition for guardianship reaches court.
3. Court Investigation
Once the Court receives your petition, it will investigate to decide whether the guardianship request is warranted or not.
This involves a medical evaluation of the abilities of the elderly person. Sometimes this is something the petitioner has to pay for or may need to have done before the investigation.
4. Attend The Court Hearing
At this point, a judge reviews your petition, listens to statements, and reviews evaluations. Then, they determine whether the person lacks the ability to care for themselves and grants the guardianship if necessary.
Duties Of A Guardian For The Elderly
The most important thing to know about the obligations of a guardian for the elderly is that whoever is appointed guardian must put the care and interests of the elderly person first.
The responsibilities vary from relationship to relationship but here is a look at some responsibilities a guardian might have:
1. Deciding The Person’s Living Situation
A guardian really has complete control over every aspect of an elderly person’s life. Deciding on the right living situation for that person might be one of the first steps you have to take.
An elderly person’s health may factor into deciding the best place for them to live. It could be their home, a nursing home or an assisted living facility. The guardian could make these decisions.
If there are enough funds available, the guardian even has the authority to hire a caregiver for their elderly loved one.
2. Maintaining The Senior’s Health
A guardian is responsible for making health care appointments for an elderly person as needed, for their medical care including handling their medications and be informed of medical treatments, etc.
3. Dealing With The Elder’s Finances
A guardian helps keep track of the elderly person’s finances, paying their bills, etc.. It’s also the guardian’s responsibility to make sure the senior is using their assets wisely.
When I say a guardian is responsible for helping make an elderly person’s financial decisions, this goes for decisions as small as buying clothing and groceries and on up to bigger decisions like vacations and vehicles.
It is important to remember that a guardian doesn’t just make financial decisions willy-nilly, they still need to talk to the elderly person and explain the benefits and consequences of their decisions.
A wonderful book that I can recommend when it comes to talking about finances with your parents is Mom and Dad, We Need to Talk: How to Have Essential Conversations with Your Parents About Their Finances.
It’s filled with great information on not only how to talk to your parents about this topic but also gives you a guide through the process.
4. Recreation And Social Activities For The Senior
Just because a senior needs a guardian doesn’t mean their life is over. It’s a guardian’s responsibility to make sure the person they are responsible for still gets out, meets people, and enjoys life as much as they are able.
This might mean a trip to the park, an after dinner ice cream dessert, or a Bingo game with friends.
The obligations that a guardian is responsible for can seem overwhelming but they are worth it to extend the quality of life for the elderly person.
Pitfalls of Guardianship
There are several pitfalls to be aware of before making the decision to go through guardianship proceedings for an aging parent.
As mentioned before, the process of seeking elderly guardianship can be long and involved. There are many hoops to jump through along the way.
- A guardianship case requires the filing of numerous legal documents.
- There will be at least one court proceeding and / or hearing, but probably more.
- The adult children / petitioners will have to prove the proposed ward (the senior) is incapacitated, unable to care for themselves, or make their own decisions – thus in need of a guardian. They will have to present evidence about the senior’s mental capacity, as well as their health. Can the elder handle their financial affairs? What about their ability to provide for their own personal care, perform activities of daily living (toileting, dressing, eating, etc) or maintain safe living conditions?
- The appointment of a guardian can be expensive. If a senior parent opposes the appointment of guardians (or a sibling or other person objects), court approval will take much longer and will become more expensive.
- Becoming a guardian of the person means you will be in control of every facet of the senior’s world. Researching and making difficult decisions on behalf of the senior may be stressful and draining on your own health and emotional well being.
- A guardian has a legal responsibility to make at least and annual report to the court / judge. You’ll have to provide information about financial matters (which bills were paid from which bank accounts, tax returns, asset inventories, etc.).
- Typically, guardianship of the person lasts until their death. The only way this would change is if someone else were appointed instead.
- The guardian may have to go through the court to get permission for certain things.
Becoming an elderly parent’s guardian is one of the most important decisions you may make as a family caregiver.
If the senior is incapacitated due to a condition such as dementia or Alzheimer’s disease, they’re clearly in need of guardianship and seeking it becomes the best option.
In any case, we would recommend that you consult an attorney to find out whether limited guardianship or full guardianship is the better choice.
How Much Does It Cost To Get Guardianship Of A Parent?
The cost to get guardianship of a parent varies greatly for a lot of reasons.
Here’s a look at some of them:
- Different costs from state to state
- Decision on whether to hire an attorney or apply on your own
- Whether or not elderly person protests
First, you have the initial cost of filing the petition for guardianship.
This varies depending on your state but might range anywhere from $45 to $100. You might also have to pay for certified copies of the petition and for someone to serve your parent with notice, as well as pay for a medical evaluation.
While you can go to court on your own, it’s a good idea to seek legal help, at least initially – we recommend you hire an elder law attorney to guide you throughout the whole process.
Obviously, the cost of legal expertise will vary depending on what level of legal help you seek and how involved you want the lawyer to be in your case.
Finally, your parent may hire an attorney to fight your guardianship petition. This amount would be paid by your elderly parent if he/she is financially able, otherwise it may be paid by the court.
If your parent protests the petition, the trial could drag out longer and cost you more.
When all is said and done, you could be looking at costs in the thousands.
Keep in mind, though, if you’re pursuing this avenue, there’s probably a good reason and the long term benefits of providing proper care to your parent will most likely outweigh the cost.
*Consult An Elder Law Attorney
*Note: we are not attorneys and this article should not be construed as legal advice. Please be sure to consult an attorney for expert guidance on what will best suit your particular circumstances.