When an older individual loses their ability to clearly think, it also impacts their ability to make knowledgeable and important decisions. This might happen because of the beginning of Alzheimer’s disease or other associated dementias, stroke, brain injuries, mental illness or other severe health matters. When the person you are in care of is cannot make rational, clear-headed decisions concerning their health care, money issues or other facets of life, pursuing legal guardianship might be necessary to guarantee their safety and standard of living.
What Is Guardianship?
Guardianship for the older individuals is an option in situations in which a someone has not designated a power of attorney for healthcare or finances and is debilitated because of advancing years, an illness, or a handicap. It is essential to know that differences in language exist among states. In some states, guardianship provides a person with control over where the ward resides, what health care they get and how their daily requirements are met. Conservatorship, at the same time, provides a person with the ability to manage a ward’s financial choices, like paying bills, handling investments and their budget. Many times, these terms can be used synonymously.
To take on the role as an individual’s legal guardian or conservator, the individual requesting for guardianship is required to go to court and have the ward proclaimed incompetent based on professional findings. When the individual is found incompetent, the court will then transfer the responsibility for administering finances, living arrangements, medical determinations, or any mixture of these responsibilities to the petitioner.
This process usually takes a good amount of time and is not cheap. When family members are in disagreement about the requirement for guardianship or who needs to act as guardian, the process can be particularly distressing, lengthy and expensive.
What Is a Court-Appointed Guardian?
A guardian (or conservator) is an individual that has court-ordered authority to manage an incapacitated individual’s affairs. Guardians have a fiduciary obligation to act in the best interests of the individual they were appointed to care for. Regrettably, it takes away many of the ward’s rights, but it may be the only way to obtain the legal control to make important decisions on their behalf. These duties can comprise of managing finances, the sale of property, making health care choices or arranging acceptance to a nursing home.
Who Can Be Appointed As a Guardian?
During a hearing, the court determines if the individual pursuing guardianship is well-suited for the role. In situations where more than one individual is pursing responsibility for a ward’s requirements, the court is going to determine who is most qualified for the role. Sometimes one individual is appointed to manage the ward’s personal and medical decision makings, and another is awarded responsibility for managing the ward’s financials. The preference of the ward and any legal documentation that were prepared before they became incapacitated (like a will or advance directive) will be factored into this decision if possible.
A lot of states give precedence to spouse of the ward’s, adult children, or other members of the family, because they are usually most familiar with the individual’s unique requirements and abilities. When a relative or friend does not want to, or is not qualified to take on the role, a professional guardian or public guardian might be appointed.
When Does a Guardian Get Appointed?
A guardian or conservator is only appointed if a court hears evidence the individual lacks the mental capability in some and/or all facets of their life. Simply put, they are no longer able to make informed decisions on their own. The possible ward has a right to an attorney and the right to protest to the naming of their guardian and/or conservator.
In uncommon cases, emergency guardianship can be granted straightaway when an older individuals health and/or finances are at risk.
What Are a Guardian Duties?
Subject to the degree of the ward’s incapacitation, court-appointed guardians (or conservators) could have the below obligations for the ward:
- Establishing where they are going to live;
- Overseeing their residence;
- Providing permission for medical care;
- Choosing how finances are managed, what kind of financial benefits are required, and the way assets are going to be invested;
- The payment of bills;
- Management real estate and other physical personal property;
- Permission to and overseeing of non-medical services, like counseling;
- Releasing intimate information;
- Retaining records of all expenses;
- Making end-of-life care choice;
- Acting as a delegate payee;
- Optimizing their independence in the least limited manner; and
- Notifying the court about their guardianship status at a minimum of once a year.
When possible, the guardian and/or conservator needs to seek the input of the ward and needs to only act in facets authorized by court. Guardians may be given restricted or broad authority, subject on what a court rules are required following a comprehensive investigation. Occasionally the court assigns responsibilities to multiple parties. For instance, a bank trustee could manage financial choices while a family member manages personal decisions such as living arrangements. Usually, the court requires records and financial accounting at routine intervals or when important decisions have been made.
Are Guardians Compensated?
Every court-appointed guardian is entitled to sensible compensation for their service. When a spouse, member of the family or close friend is appointed, they usually do not bill the ward for their services. In situations where a private or public guardian has been appointed, those individuals are paid straight from the ward’s estate if they are able afford it. In a lot of cases, the compensation amount needs the courts approval, and the guardian needs meticulously account for each of their services, the time these duties need and any related out of pocket costs.
How to Request for Guardianship of a Parent
To find out more about the legal procedure of pursuing guardianship or conservatorship in the state you live in, it’s a good idea to speak with a lawyer.
Sollitto, M. (2019, October 22). How to get guardianship of a senior. Retrieved May 06, 2021, from https://www.agingcare.com/articles/how-to-get-guardianship-of-elderly-parents-140693.htm
Arizona Family Law
Naming guardians in your will can be part of your estate plan. You may think you’re too young or don’t have enough money to justify the expense, but if you have children, you have priceless assets. There are many considerations when naming guardians for your kids. However, the process doesn’t have to be expensive or complicated.
There’s nothing better than the peace of mind you will have knowing you’ve protected your family at a time when they need it most. Let us help. Schedule a consultation or contact Ogborne Law, PLC of Arizona today.