What is guardianship?
Guardianship is a legal appointment that authorizes someone to assist with the personal, medical, and financial affairs of an individual who is incapacitated or otherwise unable to care for themselves. The most common guardianship situations involve minor children, adults with disabilities, or adults who have lost the ability to care for themselves. For the purpose of this conversation, we’ll refer to the incapacitated person as the parent.
Who can be appointed as a guardian?
Anyone can serve as a court-appointed guardian, though most states give preference to a spouse, adult child, parent, or sibling. A judge will determine who is fit and qualified to serve as guardian. If the judge is unable to find a family member who is qualified, willing, and able to serve as guardian, the court can appoint a professional or public guardian.
Applying for guardianship of a parent
The process begins by submitting a guardianship petition to the county court. The individual applying for guardianship is referred to as the petitioner. When the proceedings are opened and a hearing is scheduled, the petitioner will need to serve notice to the parent, other family members, and applicable agencies. The petitioner will also need to file proof of service with the court.
As the subject of the guardianship stands to lose some of their essential human rights, they have the right to an attorney. If they cannot afford an attorney, a public attorney will be appointed for them.
During the guardianship hearing, the judge will attempt to determine if the parent is mentally incompetent, and if the petitioner is the best-qualified person for the job. Proving incapacitation is fairly simple with a doctors’ certificate or psychologist’s assessment, but the judge will probably still ask the parent a few questions to gauge their understanding of everything. The judge will also ask the parent if they have any preference as to who should be their guardian, and they will consult the parent’s will, power of attorney, or advance healthcare directive if possible.
Before appointing the petitioner to be the guardian, the judge will typically want to see a care plan, and ideally some sort of assurance that the petitioner will do a good job. A proven history of successfully assisting the ward is helpful. The court will also look for red flags such as a criminal record, inappropriate use of the parent’s assets, and in some cases evidence of severe financial difficulty such as a recent bankruptcy or judgement.
How long does it take to get guardianship?
The length of guardianship proceedings vary case to case. If nobody contests the guardianship or the petitioner’s appointment, it may only take 1 – 2 months. If there are complications, it could take 3 – 4 months.
What happens if there are multiple petitioners for guardianship?
If there are multiple family members petitioning for guardianship, the judge will evaluate the candidates and select the individual who is best qualified for the position.
What can a guardian do?
A court-appointed guardian has wide-reaching authority, and will be tasked with the following responsibilities:
- Deciding where the parent will live and receive care
- Monitoring the parent’s living situation
- Give consent for medical treatment
- Investing and otherwise managing financial assets
- Applying for and administering benefits
- Paying their bills
- Buying and selling real estate and/or personal possessions
- Giving consent for non-medical services, such as counseling, and monitoring their interactions with non-medical professionals
- Accessing and releasing private information
- Recording expenditures
- Filing tax returns
Once a guardian is appointed, they will need to report to the court each year to provide updates and accountability. If the court finds that a guardian is failing to fulfill their duties or is abusing their authority, the court will appoint a new guardian.
Emergency guardianship of an elderly parent
When there is a risk of death or severe bodily harm, the court can appoint an emergency guardian to take control of the ward. Ordinarily the ward needs to be notified 24 hours before the emergency guardianship hearing, but a judge can waive that requirement if the situation is too urgent to postpone. While this is obviously much faster than the standard guardianship process, the petitioner is still required to prove that the ward is incompetent, and that they are qualified to serve as the guardian. Additionally, the petitioner will need to prove that there is an urgent citation that warrants emergency intervention.
There are countless situations that could warrant an emergency guardianship. Common circumstances include:
- Impending death
- Impending bodily injury
- A necessary healthcare treatment that is not necessarily urgent, but should not be delayed during the standard 2 – 4 month guardianship process
- Removing the ward from an abusive living situation
- Relocating a ward who is abusive to others
- Forcefully removing a ward from a home that is unsafe
When granted, an emergency guardianship lasts 6 days. If the emergency situation lasts longer than 6 days, the guardian can petition for an extension until a permanent guardian is appointed.
Guardianship vs. conservatorship
These terms are often used synonymously, but there is actually a significant legal distinction. While a guardian has full authority over all of a ward’s affairs, a conservator is limited to assisting with their assets, income, and finances. A judge may appoint a conservator rather than a guardian if the ward has proven to be financially incompetent, but is cognizant or rational enough to control their own living situation and medical treatment.
Alternatives to guardianship
Advance planning is always the best way to care for an elderly parent. As long as your parent is competent and of a sound mind, they can give you access to their legal and financial affairs with a durable power of attorney. As the attorney-in-fact, you will have full authority to manage their assets, pay their bills, buy and sell property, and do everything necessary to ensure their needs are provided for. With a power of attorney, there’s no need for a court-appointed guardianship, and your parent doesn’t need to cede control over their assets—with this setup, both you and your parent would have access to their assets.
If your state allows, it’s also a good idea to include healthcare authorization to the power of attorney. Some states require a separate document to do this, but there are plenty that allow it as a provision in the primary power of attorney. With healthcare authorization, you will serve as your parent’s healthcare proxy, and will have the ability to access their medical files, speak with their doctors, and make important decisions regarding treatment and care.
Lastly, you should encourage your parent to draft an advance healthcare directive (sometimes referred to as a living will). An advance healthcare directive puts their healthcare preferences in a legally binding document that the parent’s doctors and family members can consult when considering healthcare treatment options. This can be especially helpful for a healthcare proxy who has the ability to make important medical decisions, but doesn’t know what their parent’s wishes would be. Topics that are typically covered in an advance healthcare directive include palliative care (treatments to alleviate pain and suffering), resuscitation, cancer treatment, and artificial life support.