When a parent starts to lose the ability to care for themselves, it can be hard to know what steps to take. You may notice changes in their memory, judgment, or physical health. Maybe they’re forgetting to take their medicine or trying to drive when they shouldn’t. In some cases, guardianship may be the right answer to help protect them.
Guardianship gives someone the legal right to make decisions for another person who is no longer able to make those decisions on their own. That person is called the guardian, and the person needing help is called the ward. This process can be complicated, but here are the main steps and things to think about.
What Is a Court-Appointed Guardian?
A guardian is someone the court picks to make decisions for a person who is no longer able to handle things like finances, health care, or personal needs. The court steps in only when there’s enough evidence that the person, usually an elderly parent, is not able to care for themselves safely.
Guardians can be appointed to take care of personal decisions (like where the person lives or their medical care), financial matters (like paying bills and managing money), or both. Sometimes, the court appoints two people to handle these roles separately.
Who Can Be a Guardian?
Usually, a close family member such as an adult child or spouse will ask the court to become the guardian. But the court will look into the background of the person applying. This may include a criminal background check, credit check, and any conflicts of interest. The court wants to make sure the person is responsible and looking out for the ward’s best interest.
In some situations, two people may be appointed as co-guardians. This happens when the court thinks it’s in the best interest of the elderly person and both guardians are able to work together.
When Is Guardianship Needed?
Guardianship is often a last resort. It is used when an elderly person cannot make safe or sound decisions anymore and there are no other legal tools in place like a power of attorney. Some signs might include forgetting medication, unsafe driving, giving money to strangers, or wandering away from home.
In order to prove that guardianship is needed, the court requires clear evidence. This usually means a medical evaluation from a doctor who can state that the person no longer has the mental ability to care for themselves. If the elderly person refuses to go to the doctor, you can ask the court to order a medical exam.
Steps to Get Guardianship
1. Get a Medical Evaluation
You’ll need a letter or certificate from a doctor saying that your parent is not mentally or physically able to care for themselves. This is an important piece of evidence the court will review. In some states, this form is part of a required packet to start the process.
If your parent refuses the exam, you can ask the court to step in and order a medical exam. The court may appoint a doctor to complete the evaluation.
2. File a Guardianship Petition
You’ll need to file a legal form, called a petition, in the local probate court. This form explains why you are asking for guardianship and includes the doctor’s letter if you have one. The court will open a case and begin the process of reviewing your request.
Just because you file a petition doesn’t mean you automatically become a guardian. The court has to review the situation and make a decision.
3. Notify the Proposed Ward and Family
You must legally notify your parent that you are seeking guardianship. The law also requires you to notify certain family members. This gives them a chance to support or object to the guardianship. The court will consider any family feedback before making a decision.
4. Attend the Court Hearing
Once everything is filed, the court will set a date for a hearing. Your parent has the right to attend and speak or have their own attorney. Even if they cannot speak clearly or understand everything, the law still protects their rights during the process.
The court may appoint an Attorney Ad Litem to represent your parent. This attorney works to protect what your parent wants, not necessarily what’s best for them. If there are serious concerns about your parent’s safety or well-being, the court may also assign a Guardian Ad Litem. This person acts as the court’s eyes and ears and makes recommendations based on what’s best for your parent.
Alternatives to Guardianship
Before going through the full guardianship process, it’s worth looking at other options. These are usually easier, faster, and more affordable.
Power of Attorney (POA): This allows someone to make financial decisions for your parent if they become incapacitated. It must be signed while your parent is still mentally sound.
Medical Power of Attorney: This person can make health care decisions if your parent becomes unable to do so.
These legal tools are private, do not involve the court, and can give your parent more control over who helps them. If your parent has already signed these documents, you may not need guardianship. But if no legal planning was done ahead of time, guardianship might be the only path left.
Responsibilities of a Guardian
Once someone becomes a guardian, they must act in the best interest of the elderly person. This includes managing money carefully, keeping personal and financial records, and reporting to the court when needed.
A Guardian of the Person handles decisions about housing, daily care, and medical treatment.
A Guardian of the Property manages finances like bills, property, and investments.
Sometimes one person takes both roles, and sometimes the court splits them up between two people.
How Long It Takes and What It Costs
Guardianship cases can take a few weeks to several months, depending on how complicated the situation is. If no one objects and the paperwork is in order, it can be quicker. But if family members disagree or the case is contested, it can take much longer.
Costs may include court filing fees, attorney fees, doctor evaluations, and more. In some cases, the court may allow these costs to be paid from your parent’s assets.
Get Legal Help
Going through guardianship for a parent can be emotional and time-consuming. It’s a big step, but it may be the right one if your loved one can no longer make safe decisions. Before filing, look at alternatives like power of attorney. But if those options aren’t available or your parent is in danger, guardianship may be necessary.
If you’re thinking about taking this step, talking to an experienced guardianship attorney can help you understand your options and avoid common mistakes. Call (910) 777-5734 to schedule a consultation and learn more about how we can help you support and protect your aging loved one.