It is often inevitable as people age that there will be a reduction in mental capacities. The degree to which an elder individual’s mental functions begin to fade will determine whether or not they and their estate will need to be placed under guardianship. Realizing that your loved one has become incapable of caring for themselves is a heart-wrenching discovery. And if you neglected to have a Life Care Plan in place, your only option may be guardianship.
Types of Guardianship
When an aging and/or disabled person has not named a Power of Attorney (POA) and is losing their ability to think clearly and handle basic aspects of their daily life, the court will appoint an individual that has agreed to take on the legal care and oversight of/for another person as a Guardian. There are three types of Guardianship that the court will consider, depending on the individual’s needs.
- Guardian/Guardianship is a person who represents another person who can no longer manage their own affairs. A loved one or friend can file a formal application with the state to become that person’s individual guardian. This is not a voluntary appointment. In New Jersey, it is “a person or agency appointed by a court to act on behalf of an individual.” The individual who is mentally incapacitated is known as a ‘ward’. A Guardian is given the duty and right to act on behalf of the ward to make certain decisions affecting their life.
- Limited Guardianship may be appropriate for individuals that can still care for themselves in some areas of their life, but may need help making other decisions. An example of a limited guardianship would be to allow a person with a sound mind but with a physical disability to retain independent decision-making in their daily emotional and financial lives, while allowing the guardian to control their medical decisions. In this example, a health care professional may be appointed to help the individual.
- Conservator / Conservatorship is a “guardian” of a person’s estate. A Conservatorship is a voluntary job and the aging senior (parent, grandparent, aunt/uncle) does not have to be mentally incapacitated. The conservator’s primary responsibilities are to manage and preserve their loved one’s income, assets, and financial affairs.
How to be appointed a guardian?
Guardians are appointed by state courts, and the process varies from state to state. Typically, though, you’ll file legal papers and then have a hearing in front of a judge. Your senior, and perhaps other family members, will be notified and given the opportunity to contest the proposed guardianship. The judge may want to speak with your senior to determine whether or not they understand the proceedings, and in some cases, the judge may appoint another lawyer to represent them. Once you’ve been appointed as guardian, you may be required to return to court either to report on or to gain approval for major decisions made on behalf of your senior.
When to be appointed a guardian?
Unlike a power of attorney, which must be obtained when the individual is still mentally competent and able to transfer legal and financial authority to you, a guardianship is ordered by a court when the senior in question is legally incapacitated. This comes up most often when seniors suffering from dementia are no longer able to make rational decisions about their care or property.
If you do decide to petition for guardianship of your senior, you’ll want to work with an experienced elder care lawyer throughout the process. It’s also important to allow plenty of time to address any concerns other family members may have. At Scott Bloom Law, we are a team of advocates who care, always fighting for what’s best for our clients and their families. With knowledge, experience, and compassion, we strive to find solutions that make the aging process as emotionally and financially easy as possible. Visit us at scottbloomlaw.com or call 215-364-1111, to talk to find out more.