Guardianship And Elder Law

In modern society, our elderly population faces many challenges. Some elderly people have relatively healthy bodies but their mental capacity has deteriorated. Elderly people may be targeted by unscrupulous people for financial exploitation. Many elderly people outlive their retirement plans (and other financial assets) or have their estates eaten up with long-term care costs. But, legal measures such as proper disability planning or guardianship can mitigate or avoid the serious issues faced by the elderly or incapacitated.

Guardianship

Guardianship is a relationship, established by a probate court, between an incapacitated person (known as the ward) and the person who is responsible for the ward's well-being-the guardian. Guardianships are most often sought for elderly people suffering from dementia (or other age-related deterioration of mental faculties) and for young adults who have a mental or developmental disability such that they cannot care for themselves safely.

There are two types of guardians: a guardian of the person, who manages the ward's day-to-day care, including making sure the ward has adequate medical care and shelter; and a guardian of the estate, who manages the ward's finances and property interests. Sometimes a court will determine that the proposed ward only requires one type of guardian or the other. A guardian of the estate is often not appointed unless the proposed ward has significant assets in need of protection. If the ward requires both a guardian of the person and a guardian of the estate, it is possible but not mandatory for the court to appoint the same person to fulfill both roles.

If you are considering seeking a guardianship over someone you care about, it is important to understand that the process can be long and expensive. This is because the court must be able to determine that the proposed ward is truly unable to care for himself or herself due to a physical or mental condition. A ward loses many basic rights when placed under guardianship, and this is not something the court takes lightly. When guardianship is sought-whether for guardianship of the person or guardianship of the estate, or both-the court will appoint an attorney ad litem and a guardian ad litem (also an attorney) to investigate and report whether the guardianship is in the best interest of the proposed ward. Furthermore, if guardianship is established, there are annual reporting requirements and a bond requirement, if there is a guardianship of the estate.

Permanent guardianship may indeed be necessary to protect your loved one's health and finances. Our lawyers will advise you honestly about the process of guardianship, as well as the ongoing responsibilities that you will face in taking on this legal relationship.

Temporary Guardianship

Temporary guardianship, also known as emergency guardianship, may be appropriate when an incapacitated person poses an imminent threat to his or her personal health and safety and/or to his or her estate.

An emergency guardianship may only last up to 60 days. After that, it must either end or, often, a temporary guardianship may be converted to a permanent guardianship. As with a permanent guardianship, the court will appoint an attorney ad litem and a guardian ad litem to help the judge decide whether guardianship is warranted.

Guardianship Alternatives

It is extremely important to understand that guardianship involves taking away many basic rights of the ward, including the right to decide where they live, to consent to or to refuse medical treatment, to drive, and to manage their own finances. In very severe cases, the ward's rights to marry or even to vote may be restricted. Thus, before guardianship is sought, it is a good idea to explore whether a less-restrictive alternative may be sufficient to address the situation. In fact, a probate judge will not order guardianship unless the applicant proves that an alternative to guardianship would not suffice.

There are many common alternatives to guardianship that address concerns about the incapacitated person's health and safety or his or her financial well-being. Moving an elderly person into an assisted living facility, even perhaps a facility with a locked ward, could enable that person to live safely without an official guardian of the person. Alternatives to a guardianship of the estate include statutory durable powers of attorney, living trusts, and money management programs, among others.

Additional Elder Law Matters

  • Denial of Social Security Benefits
  • Disability Planning
  • Elder Abuse
  • Guardianship of Veterans
  • Supplemental Needs Trust

Veteran's Benefits Issues