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.
What Is Guardianship of an Elderly Parent? 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 unable to care for themselves. The guardian is responsible for the welfare and safety of the senior.
There are a few terms and conditions to understand before you take the steps toward guardianship, as well as certain duties you will need to carry out in the role of being a guardian.
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 someone 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 guardian.
There are different types of power of attorney depending on what you want covered, including:
- Non-durable power of attorney
- Durable power of attorney
- Special or limited power of attorney
- Medical power of attorney
As an example, my 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, 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)?
The court appoints a guardian when someone becomes incapable of making good decisions. Perhaps they have dementia or Alzheimer’s, or there is another reason they cannot make appropriate judgments. Guardianship is a legal relationship and the guardian is authorized to make legal, financial, and health care decisions for the ward (person who they are guardian for).
Guardianship is usually a last resort after something like 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 a guardianship and a conservatorship 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 a guardian 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 a guardian 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
The process of getting guardianship of your father is not a simple one and it varies from state to state.
Although it varies, you will generally follow these steps:
- File a petition for appointment of guardianship
- Inform the senior, as well as other family members of your intentions
- The Court will investigate to determine whether guardianship is necessary
- Attend the court hearing
File A Petition For Appointment Of Guardianship
The first step in getting guardianship of your father is filing a petition with the court. In this petition, you’ll 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
Inform The Senior, As Well As Other Family Members Of Your Intentions
As I’ve already mentioned, becoming a guardian for an elderly parent is very serious. That parent basically will no longer have much, if any, say in their affairs. 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.
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.
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 duties of a guardian for the elderly is that whoever is appointed guardian must put the 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:
- Deciding the person’s living situation
- Maintaining the senior’s health
- Dealing with the elder’s finances
- Recreation and social activities for the senior
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.
Maintaining The Senior’s Health
An elderly person’s health may factor into deciding the best place for them to live. A guardian is responsible for making doctor and dental appointments for an elderly person as needed and for handling their medications.
Dealing With The Elder’s Finances
A guardian helps keep track of the elderly person’s finances. 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.
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 duties of a guardian can seem overwhelming but they are worth it to extend the quality of life for the elderly person.
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 – however, we recommend you hire an 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 father if he 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 to your parent will most likely outweigh the cost.
*Consult An 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.