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Guardianship 101: What You Need to Know About Elderly Guardianship vs. Power of Attorney

As your parents grow older, it can be confusing and distressing to watch them struggle with vital activities like managing their finances. It’s important to consider different ways to help and support them through this difficult time. While end-of-life planning can be stressful to take on, having no plan in place can leave your family scrambling if something happens to your parents that leaves them incapacitated and unable to make decisions for themselves.

A couple of legal options to consider are guardianships and power of attorney (POA). Both options allow someone else to make decisions for your loved one on their behalf. The main difference to note between guardianships and POAs is that your parent can appoint their own POA, whereas the court appoints the guardian.

What Is a Guardianship?

Elderly guardianship is a legal relationship between a competent adult, agency or institution and an older adult who can no longer care for themself. The guardian is appointed after a court hearing and is responsible for the living arrangements of the senior, managing their daily care and making their medical and financial decisions when they’re unable to do so themselves.

If you decide to proceed with guardianship for your parent you will have to file a Petition for Appointment of Conservator form, which involves providing information about the senior and their relatives, the person filing the petition and the reasons why guardianship is necessary.

A guardian can only be appointed after an investigation by a court to find out whether the reasons stated for guardianship are legitimate and if the senior is actually incapacitated and cannot care for themself. An individual is legally considered to be incapacitated if they suffer from:

• debilitating mental illness

• medical conditions associated with old age

• brain injury

• conditions related to stroke

• dementia

• chronic intoxication

The judgment, however, is ultimately made based on the older individual’s ability to make informed decisions and manage their personal affairs, not merely the incapacitation.

Who can be appointed a Guardian?

The court can appoint a spouse, domestic partner, family member, friend or a state/local agency as the guardian for a senior. After a guardian has been appointed, they’re legally obliged to put the older adult’s interests first.

Responsibilities of a Guardian

Several strict rules are in place to ensure the guardian upholds their duties, including filing written reports with the court, taking stock of the senior’s assets and income, and paying their taxes.

When Should You Consider a Guardianship for Your Loved One?

In a legal guardianship, the court entrusts the guardian with the right to make certain decisions in the place of the senior. As such, these rights are taken away from the older adult. So many consider guardianship to be intrusive and believe that it should always be a last resort.

Moreover, as we’ve seen in movies like I Care a Lot, guardians can take advantage of the seniors in their care. Though cases of predatorial guardianship are rare, it is something you need to watch out for if you’re considering this option for your loved one. So before filing for guardianship, look into less restrictive options like power of attorney (POA).

When Do You Need a Power of Attorney (POA)?

If your parent still retains most of their capacity to think clearly, they can authorize a trusted family member or friend to act on their behalf when they are unable to make decisions. Most seniors require multiple types of POA, and an elder law attorney[1]  will be able to help you figure out the right combination.

For further advice and guidance on how to help your aging loved ones, contact Oasis Senior Advisors at 475.619.4123 or 914.356.1901, or fill out this online form for more information.

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Paul and Susan Doyle

Certified Senior Advisor®

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