How Elder Guardianship Works

The aging of our parents can present many thorny questions, and at times, there’s a fine line between what we think is helping and what’s perceived as meddling or taking control. And yet, letting things go for too long can leave an incapacitated parent without assistance when it’s needed.

When is the right time for your dad to stop driving? When does mom need someone to balance her bank account and pay her bills for her? Laws and requirements vary by jurisdiction. Contact an elder law attorney for legal advice about guardianships for older family members.

Elder Guardianships and Conservatorships

A guardian or conservator is a court-appointed individual who takes care of the personal affairs of an older adult who has become incapable of caring for themselves.

As Virginia elder law attorney Ann McGee Green says, “Guardianships and conservatorships are ways that a court gets involved in our lives by making someone have legal authority over our financial or personal decisions.”

Legal tools like durable powers of attorney and health care directives (which include living wills and health care power of attorney) allow someone to designate, while still competent, a caregiver to manage finances or make medical decisions for them in the event they become unable to do so themselves.

Getting a court-appointed guardian or conservator is vital when there is no durable power of attorney to oversee the well-being of an older person who has become incapacitated.

What Is the Difference Between a Guardian, a Conservator, and a Power of Attorney?

While a court appoints a guardian for a person, the person appoints their own durable power of attorney (POA). There are a couple of types of POA:

• Healthcare power of attorney. A person with the legal authority to make medical decisions on behalf of an incapacitated adult.
• Financial power of attorney. A person who handles financial affairs on behalf of an incapacitated adult.

Both POAs and guardians have decision-making authority that lasts as long as the incapacitated person is alive, and have a fiduciary duty to represent the best interests of the incapacitated person.

You can think of a guardian’s role as similar to that of a healthcare POA in handling medical decisions, while a conservator’s role is more like that of a financial POA in handling financial decisions.

In some states, the roles are combined. “In Virginia and many other states, guardianships are for personal care decisions, including medical and residential decisions. Conservatorships, on the other hand, are typically for financial decisions,” explains Green. To further complicate matters, some states call conservators “guardians of the estate.”

It’s important to note that guardians and POAs “don’t have to have total control over decisions, and their authority may be limited in scope,” adds Green.

What Is a State-Appointed Guardian?

If you have a parent who needs someone to make decisions on their behalf but they no longer have the ability to name someone, you may need to seek an appointed guardian.

Guardianship proceedings in probate court protect an incompetent or incapacitated person. Incompetence occurs when the person is so mentally impaired that, as a result of a mental illness or disability, they cannot take proper care of themselves or their property.

A guardian is a person appointed by a court to take care of someone who is unable to take care of themselves. Appointing a legal guardian deprives the ward of significant legal rights. Courts strongly prefer the least restrictive option that will meet the person’s needs. There are different types of guardianships, including:

1. Guardianship of the Estate: Provides the authority to make financial decisions, including paying or collecting debts, managing investments, and making purchases.
2. Guardianship of the Person: Authority to manage the ward’s personal needs, including where they live, medical care decisions, and choices about food, clothing, recreation, and personal care.
3. Guardianship of the Person and Estate: Comprehensive guardianship, with legal authority to make all decisions on the ward’s behalf.
4. Limited Guardianship: Restricts the powers granted to the guardian to only those areas where there is a need, such as for a medical care decision.
5. Co-Guardianship: More than one individual may serve equally as guardians.
6. Emergency Guardianship: Allows the probate court to issue an order without a hearing when circumstances require swift action to prevent injury to either the person or the estate of someone who is incompetent. The duration of an emergency order varies by state law; it is typically short-term but can often be extended pending a full hearing.
7. Conservatorship: Often used for financial decision-making. While some states allow voluntary conservatorships for those who simply need assistance, conservatorships are also commonly appointed by the court for individuals found to be incapacitated and unable to manage their own financial affairs.

What Does a Legal Guardian Do?

A guardian has many responsibilities related to the personal care of an older adult. Some of the primary duties of a guardian include:

• Plan where the person will live (for example, assisted living or nursing home care).
• Make sure that the person is healthy and receives appropriate medical care.
• Make financial decisions on behalf of the person.

Conservatorship vs. Guardianship

As mentioned above, the terms “guardianship” and “conservatorship” are sometimes used interchangeably. However, a guardian and conservator may be different depending on where you live.

In states where the roles are distinct, a guardian will take care of a person’s personal needs and day-to-day living requirements. This includes where the person will live, the medical care they receive, and the social activities they participate in. A conservator oversees the incapacitated person’s financial affairs, ensuring that the person has a budget that fits their financial situation.

Depending on state law, the two roles are often combined in one person who takes care of both personal and financial matters. When seeking a guardian or conservator for a loved one, it’s essential to understand the roles in your state and the requirements for them.

Who Can Be a Legal Guardian?

Several people can petition the court to appoint a guardian:

• The person who needs a guardian.
• Family members of the person who needs a guardian (for example, spouses, partners, and adult children).
• Friends.
• State or local government officials.

Deciding who the guardian will be is part of the process of petitioning the court. Sometimes, the guardian will be the person who petitioned the court – for example, an adult child. Other times, the guardian will be a third party.

How To Get Guardianship of an Elderly Parent

Getting a guardian is a court-administered process. Rules vary, and the process for getting a guardianship differs from state to state. However, the general process involves the following steps:

• Submit a petition for the appointment of a guardian or conservator.
• Provide the court information about the incapacitated adult, their situation, and family members.
• Explain why a guardianship is necessary.
• Explain that there are no viable alternatives to a guardianship.
• Allow court-appointed officials to do an investigation establishing the need for a guardianship.
• Attend a court hearing where the judge reviews the petition, determines whether the person lacks capacity, and makes a decision about whether to grant the petition for guardianship.

If the judge agrees to grant the petition for guardianship, it’s called court approval.

Get Help from an Elder Law Attorney

“There are people who hold themselves up as elder law attorneys but don’t necessarily know about all the areas in elder law,” says Green. “For example, if I were going to an attorney and I was looking specifically for help with Medicaid or long-term care, I would ask them how many applications they have assisted clients with and how many were successful. Different lawyers have very different knowledge bases.”

Because of this, you’ll want to ask questions to ensure you have the right attorney:

• What are your attorney’s fees and billing options?
• What legal services do you offer (for example, estate planning)?
• Are guardianships and conservatorships different in my state, and which do I need?
• What is the process for getting guardianship?
• Am I qualified to serve as a guardian?
• What are the responsibilities of a guardian?
• How long do a guardian’s responsibilities last?
• How much does it cost to get guardianship?

Once you have met with a lawyer and have your questions answered, you can begin an attorney-client relationship. Look for an elder law attorney in the Super Lawyers directory for legal help getting a guardianship or conservatorship.