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Guardianship Of Your Parents - What You Need To Know

By Tonia Boterf

As our parents age and making decisions becomes more difficult, someone becoming a Guardian of their elderly parent rather than continuing as a Power of Attorney may become necessary and the best option to keep your parent(s) safe. But what is Guardianship and what do you need to know about it?

Following is a definition of guardianship and the questions you may want to get answered and be aware of before you pursue guardianship.

To get answers to the guardianship questions, you can ask an attorney, see if your State's Department of Health and Human Services has a booklet, check your local Probate Court to see if they can answer some of the questions or have a booklet, search the web, get a free report that answers the questions presented here at The Practical Expert or speak with a social worker at any hospital or nursing home.

Definition of Guardianship:

(Appointee refers to the person applying for Guardianship, or who is a court-appointed appointed Guardian; Ward refers to the person who is or would be under Guardianship.)

Guardianship is a legal mechanism, usually done through Probate Court, which appoints a person, persons or public entity, to make decisions on behalf of another person. The Appointee must demonstrate that the Ward is unable to make decisions responsibly or independently. A Guardian has the power to make decisions for the Ward, even if they are decisions the Ward does not like. Control over where a person lives, how money is spent, what medical care is received, etc., are the responsibility of the Guardian. There are several different versions of Guardianship, including full Guardianship, which is the most restrictive, and limited Guardianship, which spells out specific areas that a Guardian will control. There is also Co-Guardianship, Limited-Time Guardianship, Medical Guardianship, Residential Guardianship and Temporary Guardianship. These will be discussed later.

The decision to pursue Guardianship is a very serious one, as it significantly affects a person's individual rights and freedoms. Yet Guardianship remains one of the best ways to protect those who, without it, could be abused and/or victimized.

At the same time that you pursue Guardianship, you may wish to pursue Conservatorship, which is legal control of financial matters. You can apply for both or just one of these legal appointments. Social Security is not covered by Conservatorship, but rather to be designated as the person to handle the Social Security income, you must obtain directly from the local Social Security Administration office, nearest your parent.

Questions regarding guardianship that you will want answers to:

  • What is the difference between Power of Attorney and Guardianship?
  • What is the difference between full Guardianship and limited Guardianship?
  • Why would Guardianship be needed?
  • Will Guardianship protect my Senor Adult from being abused or victimized?
  • Is Guardianship always necessary?
  • Does Guardianship mean the Guardian can do anything they want to the Senior Adult?
  • What is Conservatorship?
  • What is Representative Payee?
  • What do I do if my Senior Adult becomes romantically involved with someone?
  • What is a 'court visitor' or 'guardian ad litem'?
  • If I don't want to take away my Senor Adult's rights through Guardianship, what are other ways I can protect them?
  • How do you discuss Guardianship with your Senior Adult?
  • What are the repercussions of obtaining Guardianship?
  • What happens when the Senior Adult dies when under Guardianship?
  • What happens if the Guardian dies before the Senior Adult?
  • What should I do if my Senior Adult or another Senior Adult I know is being abused?
  • How do I go about getting Guardianship of my Senior Adult?

When you fully understand the benefits and drawbacks of guardianship, then you need to have discussions with your parents and family members. If you apply for guardianship, it is fairly simple and the paperwork is not difficult. Cost for obtaining guardianship papers, is less than $50 and is done through your local Probate Court. You or your Attorney complete the forms and then return them to the Court and, usually, a small filing fee paid. Then a hearing will be scheduled.

Guardianship isn't to be taken lightly but at times, it is the safest way to protect your loved one. If you become a guardian of a person, please respect their wishes and need for independence as much and as far as possible. Everyone deserves respect, dignity and the right to be heard.

Disclaimer: Please note that this guide is not intended as legal advice, particularly since the laws change from time to time and from State to State, and because there might be other factors involved which go beyond the scope of this guide. This paper is not meant to replace sound legal advice. If you have any questions about how the law applies to a specific situation, you should consult a lawyer or Register of Probate.

Jennifer N. Haskins Attorney at Law

Practice Areas

  • Wills & Trusts
  • Estate Planning
  • Estate Administration
  • Elder Law
  • Medicaid
  • Asset Protection
  • Power of Attorney - Financial
  • Power of Attorney - Health Care
  • Probate of Estates
  • Year's Support
  • Special Needs Trusts
  • Long-Term Care
  • Nursing Home Planning
  • Miller Trusts
  • Adult Guardianships
  • Conservatorships
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