How to Get Guardianship of a Senior

When an elder loses the ability to think clearly, it affects his or her ability to make informed and meaningful decisions. If the person you are caring for is unable to make rational, clear-headed decisions about their health care, finances, or other aspects of life, guardianship may be the next step.

What Is Guardianship?

Also known as conservatorship, guardianship is an option in cases where an individual has not appointed a power of attorney for health care or finances and is incapacitated due to advancing age or a disability.

In order to act as someone’s legal guardian or conservator, the individual petitioning for guardianship must go to court to have the person (known as the ward) declared incompetent based on expert findings. If the person is ruled incompetent, then the court transfers the responsibility for managing finances, living arrangements, medical decisions, or any combination of these tasks to the petitioner.

This process can take time and money. If family members disagree about the need for guardianship or who should act as a guardian, this can be an especially painful, prolonged, and costly process.

What Is a Court-Appointed Guardian?

A guardian is a person who has court-ordered authority to handle an incapacitated person’s affairs. Guardians have a fiduciary duty to act in the best interests of the person they are appointed to serve. Sadly, it strips the ward of many rights, but it might be the only way to gain the legal authority to make crucial decisions on their behalf. These tasks can include managing finances, selling property, making health care decisions, or arranging admission to a nursing home.

Who Can Be Appointed as a Guardian?

At the hearing, the court decides if the person seeking guardianship is well suited for this role. In cases where more than one person is seeking responsibility for a ward’s needs, the court will decide who is best qualified for the position. The ward’s preferences and any legal documents that were prepared prior to their incapacitation (such as a will or advance directive) are factored into this decision, when possible.

Many states give preference to the ward’s spouse and family members, since they are most familiar with the person’s unique needs and abilities. If a relative or friend is not willing or qualified to serve in this role, then a professional guardian or public guardian may be appointed.

When Is a Guardian Appointed?

A guardian or conservator can only be appointed if a court hears evidence that the person lacks mental capacity in some or all areas of their life. In other words, he or she can no longer make informed decisions. The ward has the right to an attorney and the right to object to the appointment of their guardian or conservator.

What Does a Guardian Do?

Depending on the extent of the ward’s incapacity, court-appointed guardians may have the following responsibilities for the ward:

· Determining where they will live.

· Monitoring their residence.

· Providing consent for medical treatments.

· Deciding how finances are handled, what types of financial benefits are needed, and how assets will be invested.

· Paying bills.

· Managing real estate and other tangible personal property.

· Consenting to and monitoring non-medical services, such as counseling.

· Releasing confidential information.

· Keeping records of all expenditures. · Making end-of-life decisions.

· Acting as a representative payee.

· Maximizing their independence in the least restrictive manner; and

· Reporting to the court about their guardianship status at least annually.

Whenever possible, the guardian or conservator must seek the input of the ward and must only act in areas authorized by the court. Guardians can be given limited or broad authority, depending on what a court rules is needed after a thorough investigation. Sometimes the court doles out responsibilities to several parties. For example, a bank trustee might oversee financial decisions while a family member handles personal decisions like living arrangements. Generally, the court requires reports and financial accounting at regular intervals or whenever important decisions are made.

Do Guardians Receive Compensation?

All court-appointed guardians are entitled to reasonable compensation for their services. When a spouse, family member or friend is appointed, they typically do not charge the ward for their services. In cases where a private or public guardian is appointed, these individuals are paid directly from the ward’s estate, if they can afford it. In most cases, the compensation amount must be approved by the court, and the guardian must carefully account for all their services, the time these tasks require, and any associated out-of-pocket costs.

Power of Attorney Explained One of the most powerful tools for managing your affairs should you become mentally incapacitated is a general durable power of attorney (“DPOA”). This legal document allows you to appoint another person to make legal and/or health care decisions on your behalf if you are unable to do so yourself. It is “general” because it covers a wide range of situations, such as selling real estate, purchasing items you may need, accessing your bank accounts and other investments, etc. It is “durable” because it is effective even if you are deemed cognitively incompetent; indeed, that is probably the only time you’ll really need it!

Power of Attorney (POA) and Competency

There are two types of POAs: a general durable POA takes effect on signing without having to prove you are incapacitated. The other—called a “springing power”—only becomes effective upon the determination by a physician that you are unable to make your own decisions regarding your property or care.

One of the misconceptions about DPOAs is that you lose your independent right to make decisions for yourself (i) when you sign it, or (ii) when the power “kicks in.” In fact, you continue to have all the rights you had before you signed the DPOA—to sign documents, withdraw money from your bank accounts, and make other legal decisions—unless and until a court order says you lack the capacity to do so.

It is wise to include specifications in your POA documents as to the requirements for determining competency. You may decide to include a clause that identifies exactly who is involved and how the final decision is made to declare that you are mentally incompetent.

Since the person you are naming as your “agent” under your DPOA will have very broad powers over your property and legal decisions, it is vital to choose your agent carefully. Frequently spouses appoint each other, with a named successor agent being one or more of their children.

Fiduciary Responsibility of POA

Another misconception is that the agent can take your money and give it to themselves. However, under state laws, the agent has “fiduciary responsibility,” which means that they must only act in your best interests, and they are barred from benefiting themselves with your money.

Naming two or more agents to serve at the same time can prevent inter-family jealousy and ensure that a rogue agent cannot enrich themselves secretly while you are incapacitated. However, it has the disadvantage of requiring all the agents to agree about every decision to be made, significantly slowing down their ability to access funds and make other legal decisions.

More frequently, parents name a child with a series of successor agents named right in the document. That way, if the first named child/agent does not want to—or is unable to—serve, there is already a named successor agent. In most cases, it is not a good idea to allow the named agent to name their own successor, since they may select someone that you may not have approved had you had the chance to choose.

POA and Medicaid Planning

One often-overlooked provision is the ability to do “Medicaid planning” should the need arise. Under state laws, an agent cannot give away your property without your consent. But under a properly drafted Medicaid planning paragraph in your DPOA, the agent would be specifically given the authority to make transfers to other family members, if doing so would preserve your assets for the family unit while accelerating your access to Medicaid coverage in a nursing home or assisted living facility.

Finally, be sure to have an attorney prepare this important legal document for you and avoid using a cheap or free “form” from the internet! Not only are you paying for the language in the document, but also for the expertise in eliciting from you which clauses you wish to be included and who should serve as your agent(s).