How Elder Guardianship Works

A guardian or conservator is a court-appointed individual who manages the personal affairs of an older adult who has become incapable of managing their own affairs.

When parents age, it presents children with many difficult questions. At times, there’s a fine line between trying to help and being perceived as meddling or taking over. Yet letting things go for too long can leave an incapacitated parent without the assistance they need.

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? Guardianship laws and the answers to these questions vary by person and jurisdiction. Contact an elder law attorney for legal advice about guardianships for older family members.

Elder Guardianships and Conservatorships

“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,” says Ann McGee Green, an elder law attorney at Anderson, Desimone & Green in Roanoke, Virginia.

Legal tools such as durable powers of attorney and advance directives (also called living wills) allow someone to designate their own representative. The person they designate can manage their finances or make medical decisions for them if they become unable to do so themselves.

But what if an older adult has not appointed a power of attorney? That’s where a court-appointed guardian or conservator comes in 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?

With a power of attorney (POA), you designate your own representative. With guardians and conservators, the court appoints someone for you. If you have a parent who needs someone to make decisions on their behalf, but they no longer have the capacity to appoint their own power of attorney, you may need to seek a court-appointed guardian.

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 document specifies. POAs and guardians also 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. A conservator’s role is more like that of a financial POA in handling financial decisions. However, 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 you can limit their authority in scope,” adds Green.

What Is a State-Appointed Guardian?

A guardian is a person appointed by a court to care for someone who is unable to care for themselves.

Guardianship proceedings are initiated to protect a person who is deemed legally incompetent or incapacitated. Incompetence occurs when a person is so impaired as a result of a mental illness or disability that they cannot take proper care of themselves or their property.

Appointing a legal guardian deprives the ward of significant legal rights. Courts strongly prefer the least restrictive option that meets a person’s needs. There are different types of guardianships, including:

• Guardianship of the Estate. Provides the authority to make financial decisions, including paying or collecting debts, managing investments, and making purchases.
• 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.
• Guardianship of the Person and Estate. Comprehensive guardianship, with legal authority to make all decisions on the ward’s behalf.
• Limited Guardianship. Restricts the powers granted to the guardian to only those areas where there is a need, such as deciding medical treatment.
• Co-Guardianship. More than one individual may serve as a guardian.
• 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 their estate. The duration of an emergency order varies by state law. The duration is typically short-term, but the court can extend guardianship pending a full hearing.
• 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 incapacitated individuals who are 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, an assisted living or nursing home care facility)
• 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 a single person who handles 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 court petition process. 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 an adult 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 with 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, the judge with give court approval and grant the petition for guardianship.

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 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 help with obtaining a guardianship or conservatorship.