When a senior loses the ability to care for themselves or manage their own affairs, a family member is often needed to step in and care for them. Parents and spouses have the inherent authority to do this, but children, siblings, extended family, and close friends will need legal authority to act and speak on the senior’s behalf. There are two ways to do this:
- Guardianship
- Power of attorney
What is Guardianship?
Guardianshipis intended for adults who are incapacitatedand unable to care for themselves. In this situation, the guardian is granted the power to act as a substitute decision-maker in the individual’s personal, medical, and financial affairs. During guardianship proceedings, an incapacitated person is referred to as the protected person. After guardianship has been granted, the incapacitated person is called a ward. Once appointed, the responsibilities of a guardian can include the following:
- Managing the ward’s assets and investments
- Selling property and liquidating assets to cover medical and living expenses
- Paying the ward’s bills
- Determine where the ward will live
- Monitoring the ward’s living situation to ensure proper care
- Accessing the ward’s medical records
- Consulting with the ward’s doctors and make important medical decisions regarding treatment and care
- Filing the ward’s tax returns
How to Get Guardianship of a Senior
There are three steps to initiating guardianship of a senior:
- Submit a petition to the court
- Prove that the senior is incapacitated
- Demonstrate that you are qualified to serve as their guardian
To begin the process, submit a guardianship petition to the county court where the senior resides. The court will schedule a hearing, and the court will provide necessary notice to all interested parties (family members).
The first order of business at the hearing will be to assess the protected person’s mental capacity. This is typically accomplished with a doctor’s certificate, or by the professional assessment of a psychologist. The judge will need to determine whether or not the protected person is incapacitated, and they’ll need to understand the extent of their incapacity.
The burden is on the petitioning individual to prove that they are fit for the job. The court usually likes to see a care plan, along with a history of successfully assisting the protected person with their affairs. Depending on the complexity of the protected person’s assets and estate, the judge may also need to make sure you are financially savvy enough to handle the fiduciary responsibility.
Emergency Guardianship of a Senior
Because standard guardianship proceedings can take up to four months, there are provisions in place to grant an emergency guardianship if an urgent situation arises. Some common situations that merit an emergency guardianship include:
- Impending death
- Impending bodily injury
- A necessary healthcare treatment that is not necessarily urgent, but should not be delayed during the standard guardianship appointment process
- Removing the protected person from an abusive living situation
- Relocating a protected person who is abusive to others
- Forcefully removing a protected person from a home that is unsafe
The court is generally required to provide the protected person with at least 24 hours’ notice before the guardianship hearing, but that can be waived by a judge if time is of the essence. An emergency guardian is typically granted authority for 6 days. At the end of the 6 days, the guardianship will lapse unless the guardian requests to extend emergency guardianship and can offer evidence that the ward will need an emergency guardian until a permanent one can be appointed.
How to Revoke a Guardianship
Guardians are appointed by a judge, and they can be revoked by a judge. If the court finds evidence that the guardian has abused their powers, or that they’ve failed in their duties to the ward, the judge will appoint a new guardian.
What is a Power of Attorney?
A durable power of attorney is a legal document that grants someone the authority to act as your agent. Where a guardian is appointed with or without an incapacitated adult’s consent, a power of attorney can only be issued freely by an adult with a sound mind. Seniors who have lost their mental capacity therefore cannot issue a valid power of attorney.
A power of attorney is also different in that it does not appoint a substitute decision-maker. Instead, it provides the agent access to your assets and affairs without diminishing your own free will. Think of it like you’re adding an authorized user to your bank account or credit card—both you and your agent now have the ability to access your accounts, handle your affairs, and make important decisions. If you become incapacitated and a guardianship becomes necessary, your agent will be appointed as your guardian.
How to Get a Power of Attorney for a Senior
The biggest hurdle to getting a power of attorney for a senior is to make sure they are of sound mind. If you push a power of attorney through and a judge later finds that the principal lacked the capacity issue it, the judge will invalidate the document and revoke your authority. If the senior in question has a questionable mental capacity, it’s best to consult with an attorney.
Assuming the senior is not incapacitated, a lawyer can draw up a power of attorney fairly quickly. Once it’s complete, a witness will need to sign the document and attest that the principal is of sound mind, and that they are not under duress or undue influence. You’ll also need to have the power of attorney notarized.
What is the Difference Between Guardianship and Conservatorship?
In many states, guardianship and conservatorship are one in the same. In states that distinguish between the two, a guardian has full control over the ward’s affairs, and a conservator is limited to power over their finances. While the conservator has a more limited scope than a guardian, conservators have a greater responsibility to prudently manage the ward’s assets and investments. Conservators are held to a fiduciary standard, and they’ll need to consider the ward’s risk tolerance and income needs when selecting suitable investments.
Call Guardianship and Conservatorship Attorney Colton Johnston at (480)467-4313 to discuss your case today.
