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Elderly Guardianship Basics

Elderly guardianship, also known as elderly conservatorship, is a legal relationship created when a court appoints an individual to care for an elderly person who is no longer able to care for himself or herself. The appointed guardian has certain duties and responsibilities to the elderly person. Learn more about elderly guardianship, the process, and factors to consider below.

Why Might Someone Need a Guardian?

Unfortunately, an elderly person may become unable to care for himself or herself. This could include the inability to remember to take necessary medications, maintain regular hygiene, or properly manage finances. In these instances, it may be in the elderly person's best interests for a court to appoint a guardian.

What is the Guardianship Process?

States have their own guardianship processes and requirements. Generally speaking, the following people or entities can petition a court to designate a guardian:

  • The elderly person
  • A spouse or domestic partner of the elderly person
  • A relative of the elderly person
  • A friend of the elderly person
  • A state or local government agency

The guardianship process can be long and complex, perhaps understandably, given that the elderly person will lose some important rights and have his or her care entrusted to another person. In California, for example, the process involves all of the following steps:

  1. Filing a Petition for Appointment of Conservator form , which requires information about the elderly person, the person filing the petition, relatives of the elderly person, and the reasons why guardianship is necessary. The petitioner must also explain why alternatives to a guardianship are not available or appropriate (see Alternatives to Guardianship section below).
  2. Informing the elderly person, along with his or her relatives, of the petition for guardianship
  3. Investigation by a court investigator to determine whether the proposed guardianship is necessary
  4. A court hearing in which the judge reviews the petition, listens to statements, determines whether the elderly person lacks the ability to care for himself or herself, and decides whether to grant the guardianship petition.

Duties of a Guardian

A guardian has a duty of care towards the elderly person. In plain terms, this means that the guardian must put the interests of the elderly person first.

The guardian may have many responsibilities, such as deciding where the elderly person will live, how to keep the elderly person healthy, how to prepare a budget based on the elderly person's finances, and how to arrange for recreation and social contact. To give you an idea of the many potential responsibilities involved, California's handbook for appointed guardians is almost 300 pages.

Pros and Cons of Elderly Guardianship

The purpose and hoped-for benefit of elderly guardianship is that an elderly person who is no longer capable of caring for himself or herself receives proper care. However, there are several drawbacks that may come with guardianship.

Guardianship petitions are usually expensive. There are numerous forms to fill out, many procedural requirements, and likely several court hearings. If there's any opposition to a proposed guardianship, perhaps by the elderly person or by a family member, the process becomes even more involved and can be emotionally and financially draining.

Guardianship, by nature, requires the elderly person to lose some of his or her rights. For example, the elderly person may lose the right to manage his or her finances, to choose his or her own caretaker, and to decide where he or she lives. There's also the risk that the guardian will fail to act in the best interest of the elderly person.

Alternatives to Guardianships

Courts consider elderly guardianship to be a last resort option because of the drawbacks mentioned above. Depending on the state you live in, possible alternatives to guardianship include:

  • Living Trust - The elderly person can designate someone to handle his or her financial affairs.
  • Representative Payeeship - If the elderly person's income is from government benefits, he or she may designate someone to manage this income.
  • Power of Attorney - The elderly person may give another person the right to act on his or her behalf.
  • Standby Guardianship - In some states , the elderly person may designate someone as a standby guardian, in case the person loses the ability to care for himself or herself.

Note that all of these alternatives involve the elderly person willingly assigning his or her rights to another person. If the elderly person becomes unable to do so because of mental incapacity, then these alternatives are no longer available.

Getting Legal Help

Elderly guardianships are complex and have important consequences. If you're considering a guardianship for yourself or for a loved one, or if you're thinking about serving as a guardian, you should consult with an attorney who specializes in elder law.

Next Steps

Contact a qualified elder law attorney to help you and loved ones plan care and address problems.

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