When Would an Elderly Individual Need a Guardian?
Sadly, an individual may be unable to care for themselves at some point later in life. Whether it is due to a medical condition or just part of aging, they may be unable to maintain hygiene, manage their finances, or remember to take medications. If an elderly adult cannot take care of their own daily needs, then it may be in their best interest for the court to appoint a guardian who will then oversee that care.
How Do You Appeal to the Court to Receive Guardianship of an Elderly Adult?
Typically, the court will decide if the party seeking guardianship is suited for their role. In these cases where more than one person is requesting guardianship, the court will decide which party is more qualified to care for the elderly party. Other times, the court may split duties between two guardians. An example would be having one guardian handle daily care and medical decisions while another handles all financial tasks.
To request to become a guardian for an elderly individual you must first file legal documents with the court. You will also need medical evidence that the elderly individual is incapacitated. Also, if the party already has a living will or advanced directive, the court will use that document when determining the best guardian for the aging adult. In most cases, if the individual named in the living will can take care of the elderly adult, the court will grant them guardianship.
When there is no living will or advanced directive, the court prefers to give guardianship to a spouse, adult child, or another adult family member because they are more familiar with their loved ones needs and care. When a relative is unavailable or not willing to serve in the role, or the court finds that they are unqualified, they may select a professional or public guardian instead.
What Can an Appointed Guardian Do?
An appointed guardian’s sole responsibility is to ensure that the elderly person receives the care that they deserve. Just some of the tasks that they may take on can include:
- Determining where they will reside;
- Consenting or denying medical treatments;
- Monitoring them in their residence;
- Hiring in-home care help;
- Determining how finances are managed, including what benefits are used;
- Paying bills;
- Managing any assets and real estate the elderly individual owns;
- Keeping records;
- Making any end-of-life care decisions necessary;
- Consenting to the release of confidential information; and
- Reporting to the court about their duties and status as a guardian.
Does a Guardian Receive Compensation for Their Work?
A court appointed guardian can receive compensation for their services. However, when a friend or family member becomes the guardian, they do not typically charge for their services. Compensation is more common when a private or public guardian is appointed by the court who is not related to the adult they are caring for. When compensation applies, the court must approve that compensation amount and the guardian must keep careful records of all services and time dedicated to their role to justify compensation.
Can Friends Receive Guardianship?
The courts prefer immediate family members when looking for suitable guardians. That doesn’t mean a friend of the elderly individual could not petition for guardianship. If immediate family members do not wish to be guardians or they are not qualified, a friend could apply for the role with the court. You would still need to prove to the court that you are the most suitable guardian for your friend before a judge would approve the guardianship petition.
Can You Argue against a Person Who Has Guardianship?
If your loved one already has a court appointed guardian, but you feel that they are not looking out for your loved one’s best interests, you can still file a petition with the court to have that guardian removed. You will need to supply evidence showing that the guardian has breached their duty of care, and evidence showing that you are the more qualified guardian to take over responsibilities.
Any case involving removing an existing guardian should be handled by an attorney. These cases are exceptionally complex and require in-depth knowledge of local elder laws and wards.
Do I Need an Attorney to Petition Guardianship?
If you are concerned about your aging parent and you would like to explore your options for applying for guardianship, it is best to speak with an attorney. There are multiple steps involved in applying for the guardianship of an adult. An elder law attorney knows these special requirements and can assist you with gathering all documentation necessary to file your petition. Furthermore, an elder law attorney can help argue against any petitions in court from other family members trying to seek guardianship and lookout for the best interest of your loved one.
If your loved one already has a living will, you should bring that document along with you to your consultation appointment. Even if you are not named in the living will, but you feel the named party is not qualified to care for your loved one, you may be able to petition for guardianship and contest the party named in the living will. In complex situations like this, it is best to speak with an attorney.
Elder law attorneys have handled countless guardianship cases regarding aging adults. To get started on your case or to draft a living will that names a guardian for your own care, schedule a free consultation today. Attorney Andrew M. Lamkin, P.C., can assist you with your guardianship case.
Get started by scheduling your appointment. You can do this by calling the office directly or contacting him online with your questions regarding adult guardianship.
Andrew Lamkin is principal in the law firm of Andrew M. Lamkin, P.C., where he focuses his practice in the areas of elder law, estate planning and special needs planning, including Wills and Trusts, Medicaid planning, estate administration and residential real estate transactions. He is admitted to practice law in New York and New Jersey.
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