Dealing with Guardianship With an Elderly Parent

Guardianship — also known in some states as conservatorship — occurs in some of the thorniest circumstances.
August 24, 2023
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Key Points
  • In instances where someone's decision-making is deemed to be extremely impaired, a formal guardian may be appointed by the court
  • Typically, the guardian is instructed to assist the incapacitated person in the least restrictive way possible and must make regular reports to the court
  • Pursuing guardianship is both costly and potentially devastating for a family, and can in most instances be avoided by the right preparation
  • Designating a health care proxy to handle medical decision-making and a power of attorney to handle financial decision-making can both help avoid a guardianship
Table of Contents

What is a Guardianship?

We’ve covered the important documents everyone should have in order. These provide a framework around handling decision-making — both financial and medical — in the event decision-making capability is lost.

But let’s say things don’t go as smoothly, and you’re caring for a loved one who is resisting support. In particularly difficult instances, one may find themself in a trifecta of impaired decision-making where:

1) a loved one is making decisions that are dangerous or potentially dangerous to themselves or others;
2) the person refuses assistance despite your best attempts to provide or arrange it, and;
3) the person lacks the capacity to understand the implications of his or her actions.

In this situation, one potential endpoint would be a guardianship proceeding (also referred to as conservatorship in some states).

Guardianship involves a petitioner approaching the court and alleging a person has impaired capacity. While the details of what it entails vary from state to state, it is considered to be one of the most serious matters in American Jurisprudence, because it removes one of the most basic human rights guaranteed by the constitution: the freedom to make decisions for one’s self. 

How Does a Guardianship Proceeding Work?

In a formal guardianship proceeding, a physician thoroughly examines the person in question to determine if they’re cognitively capable of making their own decisions. If they’re found to be incapable, a guardian is appointed.

Typically, the guardian is instructed to assist the incapacitated person in the least restrictive way possible. For example, if someone needs support managing their finances, but is still able to make decisions about where they want to live, the guardianship order might stipulate that the guardian can only assist with financial issues.

The guardian must make regular reports to the court, including how monies were spent, what decisions were made, and whether the individual still needs a guardian. Being a guardian is a tough job when done correctly, and many would agree that there’s a growing shortage of well-trained, judicious, ethical guardians.

A Guardianship Can Have Ruinous Consequences

Unfortunately, guardianship has become increasingly common in America. This is partially because people fail to specify their wishes in advance, but also because there is increased incapacity as we age, and mobility patterns have dispersed relatives far from home where they could provide help. Unfortunately, guardianship can also be a way for unscrupulous people to get ahold of older people’s resources.

Pursuing guardianship is both costly and potentially devastating for a family. Legal fees can consume all or most of your savings when proceedings drag on, and people can find themselves in care situations that they never would have agreed to in life, as adult children squabble over what a parent “would have wanted”.

The good news is that if you’ve prepared properly, you can avoid getting into a sticky situation like a guardianship.

How Can You Avoid a Guardianship?

The most effective way to avoid guardianship is to designate a health care proxy to handle medical decision-making, and a power of attorney to handle financial decision-making. Having both of these in place — and sharing your wishes clearly, and in a way that is well documented — is your best defense for preventing a sticky situation like a guardianship.

What To Do Next
The Bottom Line

To get started, read our Important Documents 101 guide. If you don’t have these documents in order, there’s no time like the present to get started.

  • The first step is to think through your preferences, like who you’d like to appoint as your designated power of attorney.
  • Once you’ve done that, you can either work with an eldercare or trust & estate attorney to draft up the paperwork, or you can leverage templates available on the internet.
  • LegalZoom has ample resources on estate planning. You can purchase and download individual documents, buy estate planning documents in bundles, and consult with their independent attorneys for advice if needed.
  • Another good option is US Legal Forms, which will show you multiple templates available in your state and indicate which are the most frequently ordered.
  • Once your forms are completed, make sure that all loved ones who will be involved in your care have a copy of them and have a complete understanding of your wishes.
  • Opt for a digital repository like LastPass to store all of your information in addition to keeping physical copies in a safety deposit box.
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