Often an aging parent will lose their ability to think clearly or make informed decisions about their life. This may occur because of dementia, mental illness, stroke, brain injury, or other severe health or disability conditions. Your parent may or may not have prepared for their elder years with a durable financial and medical power of attorney. If not, a guardianship may be necessary to protect their best interests.
When There Is No Durable Power of Attorney
If your parent did not prepare for a loss of capacity and the need for legally recognized help, you will not be allowed to create these documents once they are already mentally impaired. With that moment lost, claiming the guardianship of an elderly parent is a process that requires court approval. This ensures that the protections moving forward represent the best interest of the aging adult.
Medical Requirements for Guardianship
When a parent does not have an estate plan with powers of attorney, they may bristle at the mere mention of requiring a guardian. Your first step is to obtain a doctor’s letter or physician’s certificate attesting to your parent’s physical abilities and mental acuities.
Suppose you meet with resistance to having your parent willingly submit to an evaluation. In that case, you may still apply for guardianship with the court. This may then compel your parent to submit to a court-ordered independent medical examination.
When Is it Time to Step in and File to Be a Legal Guardian?
Over time, you may begin to recognize certain signs that having a guardian may be necessary for your older parent. This might include lapses in bill payments, lack of healthy foods in their home, or your parent’s insistence they can drive after a series of accidents. Driving is imperative to monitor because your parent endangers not just themselves but others. Additional signs it may be time for guardianship include self-isolation, hearing or sight loss, and general forgetfulness, which can lead to injury around stoves, stairs, and other risks.
Guardianship Laws Vary By State
When applying for guardianship, it is crucial to understand the state laws where you live. Different states use different terms.
Some states require a “guardian” to control your parent’s home environment, health care, and day-to-day needs. In other states, a “conservator” makes financial decisions, such as paying bills and budgeting. Still others will use either of these terms to mean the same thing.
The process can take substantial time and money, particularly if family members disagree. Many states give preference to the ward’s spouse, adult children, and other family members, as they know the aging parent and their needs the best.
The court may also appoint a professional guardian. All guardians appointed by the court are entitled to reasonable compensation, although family members or friends may opt to not charge for the service. Compensation for guardians must have court approval.
If the court determines you will serve as your parent’s legal guardian, it will state this in a written court order. You will remain their guardian until:
- your parent dies,
- the court finds your parent has regained capacity,
- you die, or
- the court finds it is in the ward’s best interest to remove you as the guardian or conservator.
Your parent may need your help because of advanced age, a disability, or an illness. However, they may have not appointed a durable power of attorney for health care or finances. Becoming their guardian may be the best option. This will give you the authority to make decisions about medical care, finances, or other needs on their behalf.
Contact your elder law attorney to establish guardianship for your aging parent. They can guide you through applying to become a guardian or conservator. They also can help manage your expectations regarding the best care for your parent.