Guardianship is an important decision that many do not come by lightly, as it is a lengthy court process on top of what may be an already taxing situation. Depending on where you live, the steps of getting guardianship of a parent can be complicated and expensive.
But despite the obstacles, guardianship may be the only recourse to protect your parent from harm. It confers immense responsibility to you on behalf of your parent. Our step-by-step guide will make the process less stressful and may provide more information to help you remain confident in your decision.
Why Would You Need Guardianship of an Aging Parent?
Guardianship should be the last step when thinking about how to safely care for your aging parent. Before going down the path of guardianship, it is recommended that you review what other options you can coordinate with your family and your parent.
It can be difficult to get control of a challenging situation as a family caregiver, especially if your aging parent refuses helpf. If you’re wondering what kinds of behavior warrants guardianship, here are some things to watch out for. Your parent may or may not be engaging in the following:
- Making risky medical decisions. When we say “risky,” we mean life-altering or life-threatening, such as avoiding a timely surgery or emergency care.
- Making bad financial decisions. Unfortunately, there are stories abound of people giving away vast sums of money to unscrupulous people. Being a guardian for your parent can help you protect some of their assets.
- Being exploited. You may have read the stories of private caregivers taking advantage of older adults. The vast majority of caregivers are ethical and responsible workers, but some are not. The sad fact is, that the National Adult Protective Services Association reports that the majority of financial exploitation comes at the hands of family members or other trusted persons.
- Being abused by someone. The term abuse can cover a long list of mistreatment or harm to an older adult. It includes physical, sexual, and emotional abuse. Other types of abuse are neglect and self-neglect or abandonment. Self-neglect can get quite severe.
If you’ve found yourself unable to find ways to address your aging parent’s behavior without looking at legal options, here are some steps on how to obtain guardianship or other forms of legal recourse to protect your parent.
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Step 1: Prepare to Talk With Your Family
Before embarking on the path to guardianship, it is recommended that you speak with your parent and your family, and prepare for any objections they may have. After all, you are communicating with someone who may not be able to fully understand.
A common condition known as anosognosia affects many people with Alzheimer’s and other cognitive impairments. The condition leads people to ignore the possibility that anything is wrong with them.
It is important to remember that you are the child attempting to reverse your role as their parent, which can be hard for your parent to accept. Here are some things to have in mind when starting this delicate conversation.
- Don’t lie or deceive, unless it is absolutely necessary.
- Be honest and transparent. This is more for your personal peace of mind. Your parent may not understand or accept your intentions, but you will also have to live with yourself.
- Be calm and respectful.
- Take a team approach. Ask for help from a trusted physician or attorney.
- Suggest to your parent that they bring a good friend to court with them for the hearing.
Step 2: Exhaust Alternatives
By alternatives, we mean substitute options when it comes to advocating for and protecting a parent. These should be in place before incapacity, since their validity can come under question if done too late.
However, if you are at the beginning of this process, consult an attorney to see if any or all of these might be an option.
- Healthcare and financial power of attorney: A document that authorizes someone to make healthcare and financial decisions on your behalf.
- Trusts: Trusts are vehicles that allow you to direct where you want your assets to go after you die by appointing a trustee to hold and manage your assets. There are many types of arrangements for trusts. Some are set up to allow instant access to managing finances by the trustee when the grantor wishes. It is recommended that you meet with an estate planning attorney to set this up.
- Living will or advance directive: Living wills allow you to state what medical treatment you do or do not want should you become incapacitated or unable to speak for yourself. You can create a free living will online with FreeWill.
Step 3: Meet with an Elder Law Attorney
Before making a firm decision about guardianship of a parent, meet with an attorney who works in and understands guardianship. An elder law attorney will walk you through the court process and instruct you on what documents you will need to file the petition.
If there is family conflict, an attorney can help you understand what scenario might occur at the hearing. Conversely, they can also help you find ways to resolve disputes before filing for guardianship. This would also be a time to make sure there are no competing legal documents naming someone else power of attorney.
Step 4: Determine What Kind of Guardianship You Want
Determine whether you want guardianship over the person and/or finances. Also, it is recommended that you speak with your attorney about the possibility of a limited guardianship.
Limited guardianships allow your parent to make some of their own decisions, which can help allay any suspicions or added resistance on their part.
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Step 5: File a Petition With the Court for Guardianship
Each state will have a different process, and it could take some time for a hearing to be scheduled. There might be a fee involved.
Step 6: Submit Your Supporting Documents
Again, states have different requirements but on the whole, most want documentation that supports the need for guardianship.
Examples include a letter of competency from a physician, psychiatrist, or neurologist attesting to your parent’s inability to make safe and reasonable choices about their healthcare and finances.
Step 7: Receive a Summons for a Court Date
You, your parent, and other interested parties will receive notice of the hearing. If your parent does not have an attorney to represent them, one will be appointed.
Step 8: Appear at the Court Hearing
Many of these hearings are routine. Be prepared in the event that your parent or anyone else may object.
It is good to remember that they are entitled to speak at the hearing. Conflict can and does occur during guardianship hearings under these circumstances.
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Step 9: The Judge Makes a Determination
The judge will either appoint you as the guardian or not. If not, it could be for the following reasons:
- The evidence does not support the request for guardianship.
- Someone objects to your petition, which can come from another family member. In this case, the judge may refer you to mediation.
- In the meantime, the guardianship might be temporarily appointed to a professional guardian until the conflict is resolved.
- If the conflict is not resolved, the guardianship stays with the professional guardian if finances allow. If they don’t, then the case is referred to the state Office of Public Guardian.
Step 10: File an Annual Accounting with the Court
If you are the guardian of the person and the estate, you are required to file reports to the court yearly. Some states require a care plan within a certain time frame after being appointed guardian.
At a minimum, you can be expected to provide the following:
- A report on your parent’s care, housing, medical decisions, and general well-being. Also, expected healthcare and housing needs for the future.
- A detailed accounting of the estate including all income and assets.
- An accounting of all expenditures for the year.
Getting Guardianship of a Parent
If you decide to get guardianship of your parent, your work will have just begun. Know that your commitment and duty to keep your parent safe is an expression of your love and care.
- Egan, Paul. “Family: Caregiver Wed, Left Elderly Man Broke.” USA Today. 24 August 2014, www.usatoday.com/story/news/nation/2014/08/24/financial-elder-abuse/14535983/
- “Elder Financial Exploitation.” National Adult Protective Services Association, www.napsa-now.org/get-informed/exploitation-resources/