What Does It Mean to Have Legal Guardianship?
Guardianship refers to the judicially created power and duty to make decisions for a person who is deemed incapable of making those decisions. Legal guardianship can therefore be either over the specific property of a minor child, known as their estate, or personal choices that affect their well-being and lifestyle, such as their education, medical care, and environment (their person). You can also become a guardian over the estate of an incapacitated adult. Generally, a legal guardian can be appointed for an adult of any age; however , the standard of incapacity for adults aged 18 to 64 is different than for those aged 64 and above. A petition for guardianship can be made in the Superior Court or the Orphans Court of the county where the incapacitated person resides. Guardianship not only allows you to manage the person who is incapacitated, but it also enables you to have control over the decisions that directly impact their estate, including financial matters (i.e., banking and investment decisions) and health care. The responsibilities of the guardian are broad and come with civil and criminal liability if they fail to fulfill them. The coffers of the court can be used to pay for the costs of administering a guardianship, including your reasonable fees and expenses, and those of your attorneys and accountants.
Signs That Your Elderly Parent Needs a Guardian
When it comes to the issue of elder care, I am often asked by the children of elderly parents whether someone can be asked "to have a guardian of the elderly appointed" over a parent. The answer is that the court can appoint someone to be a guardian over a person of diminished legal capacity. The fact is that many daughters and sons find it necessary to consider whether Mom or Dad is still competent to handle their own affairs. The standard definition of this question is whether someone has sufficient mental capacity to handle their own affairs, whether financial, medical, personal in nature. A word of caution here is that if you determine that your parent does not have legal capacity, then in all likelihood you will have to file a petition with the Court to appoint a legal guardian. The appointment of a guardian is an expensive, invasive process and should only be considered as a last resort.
To understand the general circumstances when a child should consider the appointment of a guardian, we need to consider the concept of "diminished legal capacity". There are no one-size-fits-all criteria for determining capacity and the strict legal standard for determining whether a guardian should be appointed is whether or not a person has "diminished capacity". In the absence of a rigid formula, generally it is when an individual can no longer handle their own affairs and make rational decisions about their financial, medical and personal affairs. There are two objective factors that need to be looked at in any case. First, is whether the person has a physical or mental disability reasonably certain to continue. Secondly, is whether that physical or mental disability affects the ability of the person to adequately understand the nature and consequences of financial and health care in making and communicating decisions concerning those matters. Lastly, it should be noted that under the Guardianship Statute – 20 Pa. C.S.A. 5501, et seq. – that the burden of proof in the incapacity proceeding falls upon the petitioner and that petitioner must establish beyond a preponderance of the evidence that the person is incapacitated.
So what are the signs that my elderly parent may need a guardian? All of us lose our mental sharpness to an extent as we age; however, there often are some distinct signs that a person has reached the point where they are incapable of handling their own affairs. For example, a person may be confused as to knowing what day of the week or seems to not recognize the time of year. They may forget important matters such as a close friend’s recent death, where they are supposed to pick up their grandchildren or even where they are supposed to meet you. They may note be able to keep track of their daily schedule and even become lost. If Mom or Dad has invested money in the stock market and does not understand that things have gone badly or if, in fact, they continue to invest, it may be time to step in. Additionally, if your parent fails to understand the consequences of their own decisions, such as refusing critical medical treatment, this may be a sign that it may be time to consider a guardianship.
Unfortunately, the issue of a guardianship of an elderly parent is one of the most difficult decisions that a child has to make. It is, however, important that Minnesota children do not delay past the point of no return. The more serious the incapacity, the more difficult it becomes to evaluate and the more difficult it becomes to achieve legal intervention.
How To Get Guardianship Of Your Parent
Once the need for legal guardianship has been determined, the process to establish a court-appointed guardian for an elder is initiated by filing a petition in the state where your parent resides. The petition should contain details about the elder and the alleged physical and/or mental incapacity. The petition will require an explanation as to why the court should declare your parent legally incompetent and appoint a legal guardian. Amongst other things, the legal guardian must be considered to be qualified to make financial and health care decisions, and is expected to act in your parent’s best interest. In some states, instead of appointing a guardian for the individual, a court may appoint a conservator who is responsible for making financial decisions on behalf of the elderly person.
The petition is filed with the appropriate court along with pertinent documents such as medical reports and affidavits, all of which should specify the extent to which your parent is physically or mentally unable to manage financial matters.
If your elderly parent is no longer able to care for themselves, they may need a temporary guardian before a permanent guardian is appointed. If your parent needs a temporary guardian, you or another interested party can petition the court to appoint a "temporary fiduciary" who will handle the individual’s personal affairs in the meantime. The temporary guardian is finished with their work if a full-time guardian is appointed, or six months or earlier if deemed necessary by the court.
After the petition is filed, a social worker will visit your parent and conduct an evaluation or interview. The time frame for this to occur will vary from one state to the next. In some states, the court will schedule a hearing within 30 days of receiving the petition for guardianship. If your parent has died before the guardianship can be determined by the court, the guardianship appointment process will be terminated.
After the court review of the submitted documentation and the results of the social worker’s evaluation, a hearing is held. The court will review in detail the extent to which your parent suffers from a mental and/or physical illness and to which extent your parent requires assistance with basic necessities such as hygiene and nourishment. If the court acknowledges that your parent is mentally and physically able to manage their own personal and financial affairs, the petition will be denied. However, if the court determines your parent to be incompetent, it will order that a guardian be assigned to care for their personal and financial needs.
Types of Guardianship
There are different types of guardianship available. Full legal guardianship is used when the elderly parent cannot handle their own healthcare decisions, cannot handle their own finances, or cannot handle either. Limited legal guardianship is appropriate when the court finds that the elderly parent can handle their own affairs in some respects and not in others. If the parent can still handle their own finances but simply cannot be trusted due to memory issues or confused thinking, limited guardianship for finances may be appropriate. If the parent can still handle their own personal healthcare and make most decisions for their personal wellbeing but simply forgets to take their medication, limited guardianship for medical is appropriate and will ensure that the parent receives proper medical attention and reminders.
Temporary legal guardianship is appropriate when the parent has a temporary medical issue in which they are physically or mentally unable to handle their own affairs. If the parent has surgery, the parent will likely need help with their finances, property, house, and appointment/medication reminders. A temporary legal guardianship can be set up for this period of time to help the parent.
It is also possible for the parent to financially suspend their financial and healthcare decision-making capacities. By doing this, the parent can appoint another adult to handle their affairs with the understanding that once they are able to resume their decision-making abilities, they can do so without further court involvement.
Legal Processes and Considerations
Legal requirements and considerations relating to seeking guardianship of an elderly parent
If someone is seeking to become guardian over an elderly parent, then they will need to qualify for appointment as guardian after hearing before a court. A person can be disqualified from appointment as guardian for a number of different reasons. A person is disqualified if: That said, individuals do not have to be disqualified in order for someone else to be appointed as guardian. So even if a child does not meet the qualification criteria, they may still apply for and be awarded guardianship of their parent if they are more appropriate than anyone else in the eyes of the court. In certain cases, the applicant may actually be disqualified from appointment if there is evidence to the contrary, regardless of whether the applicant meets the technical qualifications. For instance, a person who has been convicted of a felony has satisfied the prior felony conviction requirement. However, the court can consider the nature of the felony and based on that, it may be more proper for another person to be awarded guardianship over the applicant. The general rule is that relatives have the first priority when it comes to becoming guardian over an individual, but if there is evidence to the contrary, the court may appoint someone outside of the family tree, even if a relative would otherwise qualify. Just like any other lawsuit or court action, there are filing fees associated with initiating the process to seek guardianship of an elderly parent. A filing fee varies from court to court, so there is no way to provide a specific amount for the filing fee. What can be suggested, however, is that the suitor for guardianship should expect to incur a filing fee somewhere between $200 to $300. In addition to the filing fee, the person petitioning to be awarded guardianship should also expect to incur attorney’s fees for the work surrounding the guardianship case. Additionally, once appointed as guardian, the individual taking on the responsibility must file detailed accounts with the court on a yearly basis to account for how the parent’s assets were spent. This is regarded as a formal accounting. The guardian is entitled to receive compensation for this, and the prior court can approve a set fee for the accounting in the original order appointing the guardian, or the court may require the guardian to submit a request for accountings every year. Regardless, a SUFFICIENT accounting is REQUIRED by and must be submitted to the court so the court can be sure that everything was properly accounting for and used to benefit the ward.
Alternatives to Becoming A Guardian
The prospect of a legal guardianship is frightening to many people. One of the first questions we receive is whether there are alternatives to guardianship. And the answer usually is yes, almost always. There are other alternatives to a legal guardianship or conservatorship. You may have heard of these alternatives: durable powers of attorney for both health care and finances, and health care proxies. In addition, under Florida law the Medicaid system has certain protections for the elderly that are helpful in this circumstance.
Durable Power of Attorney Florida Statute 709.2105 defines a "durable power of attorney" as "a power of attorney for finances that is not terminated by the principal’s incapacity." The Durable Power of Attorney Act, at Fla. Stat. 709.2101 et seq., creates a statutory form that has very specific requirements. It must be signed by the principal in the presence of two witnesses, and the signatures of the witnesses must be notarized. If the durable power of attorney is executed prior to October 1, 2011, it may not be durable unless it states that it is durable, so it is important to either consult a professional or carefully understand the requirements of the statute before signing a durable power of attorney.
Health Care Proxy A health care surrogate (also called a health care proxy) is a document that names someone to make decisions for you if you are unable to make them for yourself , including decisions about your medical care. It allows the designee to make decisions about your medical care if you are unconscious, nonresponsive, incompetent, or otherwise not able to make decisions because of your mental or physical condition. It does not allow a designee to decide whether or not to admit you to a facility. Prior to October 1, 2011, a health care surrogate could only be effective if it was signed by a physician. Now, however, it may be effective even if it is not signed by a physician.
Medicaid Whether or not a legal guardianship is necessary can depend on whether the individual is trying to qualify for public benefits such as Medicaid. People who go on Medicaid or other government programs sometimes find themselves needing a guardian appointed. However, even if an individual needs public benefits, there is a limited duration allowance in which family members may serve without a guardian. Once the individual is approved for benefits Medicaid typically will not require a guardian to be appointed, especially if Durable Powers of Attorney and Health Care Surrogates are in place. However, if the individual owns real property, such as a home in Florida, Medicaid may require a guardian to deal with that property.
Potential Pros and Cons
One kind of tug-of-war scenario that can occur when filing for guardianship is among siblings and other relatives, all of whom might believe they know best for the incapacitated elder. By referring the dispute to an impartial evaluator—or even the judge—who will render an objective decision as to who is best suited to serve as the guardian, the problem can often be worked out. In an extreme case, the court may appoint a public guardian as the legally authorized substitute decision maker.
Another possible scenario, although it is not so common, is that the person who is being asked to serve as guardian—perhaps you—may decide that he or she would prefer not to fill that role. For example, a couple may be caring for an elderly parent at home, but it becomes too difficult for them to continue doing so due to physical limitations. Or perhaps there is already another family member involved in the day-to-day care who does not want to give up having done that task. If this is the case, the petition for guardianship needs to reflect the current situation as being as supportive as possible of the parent’s desires, and yet indicate the change in circumstances that makes a familial decision no longer viable. Careful drafting with the assistance of an attorney can help you make your case to the court, so the appointment can be made to someone else close to the parent—if that is indeed what the situation requires.
Impact on Family Relations
The dynamics of guardianship can be complex, especially when multiple siblings and family members are involved. Each family member may have their own opinions and concerns about the best way forward. To address any potential disputes upfront, early discussions and planning with family members are critical.
Guardianship proceedings can often bring out latent conflict or conflict over which the parties have differing views. For these reasons, it is vital to identify issues and concerns early on and try to bring the family together for a common cause-the health and well-being of their loved one-even if they can’t agree on all things. Ideally, everyone should speak with one voice. However, if this is not possible, the order should remain as simple as possible without getting into a lot of detail that might provoke further disputes. The focus of the order should be on the appointment of the guardian and the guardian’s powers without digressing into lengthy findings or recitals, which are not necessary and which might aggravate family tensions and lead to wider rifts. Avoiding or minimizing conflict among family members is essential during this already stressful time.
FAQs
The most common questions I hear from clients are:
How do we determine when my parents can no longer make their own decisions and a guardian or conservator is needed?
When I get calls from clients with parents in this situation, in most cases there has been a crisis, such as the parent becoming incapacitated due to injury or illness.
In the past year, none of my new clients have come to see me without knowing they need a power of attorney, advance medical directive and perhaps a living trust. Only then will they also seek to become a guardian for their incapacitated parent.
Once a client knows their parent is no longer able to properly or competently make decisions, sometimes only in the context of a health crisis, they will ask me if it is time to consider a guardianship.
I tell all my clients that a guardianship is not a good solution because your parent will not have any input on who that decision maker will be and it is costly, requires you to open up court proceedings which will be public and you have to account to the court.
It’s better for you to obtain a power of attorney and an advance medical directive while their capacity has not been diminished.
Will our parents lose social security and other benefits if we become their legal guardians or conservators?
No, your parent will continue to receive any benefits they are entitled to, including social security, VA or pensions . The biggest thing that you need to know is that if you have a joint account with your parents, they will need to change those accounts into their own name, but it is a matter of changing the name on the account at the bank.
Your parents will not lose any public benefits.
Will our parents be forced to move into a nursing home if we have to become their guardian or conservator?
Again, no, the court will only be concerned with your parent’s well being and if the court believes that your parent needs nursing care, the court will give you the authority to do that, but it will not be a court order that will force you to place your parent in the nursing home.
It will be left to your discretion.
What is the difference between a financial power of attorney and becoming a guardian?
A power of attorney will allow you to do anything with your parent’s property and finances that your parent could do if they were competent to do those.
Becoming a guardian is only given by court order and will require that a court form be filled out and filed with the local Circuit Court.
You will need to appear before a judge who will order that you have the power to do things that your parent cannot do because they are no longer competent.
Can a daughter from out of town become a guardian for her parent?
Yes, that is definitely possible. If your parent should have a stroke or become otherwise incapacitated, you will have to come to court to petition the court to appoint you as the guardian.
If you are an out of town or out of state resident, you can become a guardian.