Guardianship proceedings may be necessary if a parent or other loved one develops Alzheimer’s disease or another condition that leaves them cognitively incapable of managing their own affairs. In addition, getting medical care without permission from a guardian is impossible.
If you wish to access your loved one’s bank accounts, you’ll also need to become their legal guardian.
If your loved one with dementia is having difficulty with managing some of their higher level tasks, and are experiencing deficits related to awareness, safety, decision making, etc, they could be at risk for being taken advantage of by con artists. Hence, a guardianship petition might be essential to ensure the safety of your loved one.
Being an adult child of a parent with dementia, you may find it helpful to learn the steps involved in obtaining guardianship.
Dementia causes progressive memory loss over time. However, people with dementia may display mild initial symptoms, like temporary lapses in memory or judgment, and decision making.
But, more severe symptoms may be present in the latter stages of dementia. Persons with moderate to severe dementia often experience more decline in their cognitive abilities.
These include their ability to think, take the initiative, and solve problems on their own. Determining guardianship for an adult with dementia might become an urgent matter at this stage.
What, then, is the role of guardianship in elder care settings?
Researching how you can become a guardian to parents with dementia is beneficial in order for them to keep receiving the care they require.
Below, we will explain guardianship and the steps necessary to become a parent’s legal guardian.
What is Guardianship For Adults With Dementia?
Dementia can have devastating effects on your loved one’s capacity to:
- Take responsibility for their own well-being.
- Conceive and implement strategies for ensuring the security of daily activities.
- Grasp reality and make sensible choices.
Guardianship might be the best option if this sounds like your parent with dementia.
When it comes to aged care, what exactly is guardianship?
Dementia guardianship is similar to the power of attorney and medical power of attorney in that it gives you the legal authority to make decisions on someone else’s behalf. You can protect your parents from financial, bodily, and emotional abuse by taking on the role of guardian as they age.
However, unlike durable powers of attorney and medical power of attorney, parent guardianship is a legal issue that a court should address. Therefore, your parents will need you to fill out an application to become their legal guardian and prove that you are capable of taking care of them.
You must realize that there are variations in terminology from one state to the next. The guardian in these states has the legal authority to make decisions on the person’s living arrangements, medical care, and other daily requirements.
However, a conservator has the legal authority to make all of the conservatee’s financial choices on their behalf, including but not limited to bill payment, investment management, and budgeting. Therefore, these two phrases are often used synonymously.
To obtain guardianship or conservatorship, the person with dementia has to be pronounced incompetent in a court of law on the basis of expert testimony.
The court can appoint the petitioner as the person’s guardian if it finds that the person with dementia is incompetent to make choices for its own welfare (financial, housing, or health care).
Typically, this procedure requires a substantial investment of time and resources. In addition, it can be difficult, time-consuming, and expensive to establish guardianship when family members differ about whether or not one is necessary.
Having gained a basic understanding of guardianship, let’s move on to the more concrete steps involved in actually becoming a guardian for an older parent with dementia.
How to Apply for Guardianship of a Parent with Dementia?
We’ve established that getting guardianship of a parent who has dementia is a legal process that calls for a court order. The guardianship application process is as follows:
- File an application for guardianship in the court.
- You may have to disclose the guardianship application to your loved one and other family members.
- A medical statement detailing the nature of the incapacity must be submitted.
- Prove oneself worthy in the court’s evaluations.
- Accept the role of legal guardian.
Let’s take a deeper look at each of these five steps.
1. File The Application For Guardianship
Step one is to complete the necessary guardianship paperwork and submit it to the court.
A medical checkup should be conducted prior to application filing if possible. But, if the older person refuses, you could always request the court to schedule an exam at a later date. Simply initiating the guardianship process does not confer legal guardianship.
The court will then conduct the usual guardianship processes to test your suitability as a guardian. In addition, they will look into your past to see if there are any red flags, such as a criminal record or inability to pay bills.
2. Tell Your Family About The Guardianship Application
Depending on the state laws, the next stage in obtaining guardianship of a parent is to notify (sometimes called “serving”) the parent and any other relevant family members about the pending guardianship petition.
You must inform anyone who has a legitimate interest in knowing about the guardianship petition, such as immediate family members.
The estate code specifies which relatives must be informed, but this also depends on who is still alive and can be reached.
3. Doctor’s Certificate Supporting Guardianship
The third requirement for guardianship is a medical certificate. Your parent’s physical and mental capabilities have been attested to in this declaration issued by a qualified and licensed physician.
You will need a doctor’s letter or certificate stating that your parent is unable to care for themselves, carry out routine duties, or make sound decisions if you intend to apply for guardianship.
This form is a statewide medical certification that attests to the patient’s cognitive and physical capacity and is created in collaboration with medical professionals across the state.
No one being evaluated is obligated to take part in any aspect of the process that they are uncomfortable with. For example, the older person can be paranoid or have Alzheimer’s disease, making them reluctant to see a doctor.
To apply for guardianship, you must still go through the probate courtroom. But as part of that procedure, you can request that the court mandate the examination.
If the court decides that a medical examination of your loved one is necessary, it will select a doctor to conduct the examination and make a recommendation.
4. Attorney/Guardian Ad Litem
When the court decides to proceed with guardianship, it will look at the situation in greater detail to see if:
Is having a guardian over your parent really necessary?
Are you a good candidate for legal guardianship?
The court will appoint a lawyer to represent the person requiring guardianship if your loved one requires a guardian. Although appointed by the court, the Attorney Ad Litem acts as if hired by the prospective person with dementia. This is their client and their obligation to fulfill their wishes.
A Guardian Ad Litem may be appointed if the court or attorney ad litem determines that more inquiry is required. A court-appointed individual serves as the court’s eyes and ears but is not the guardian (the terminology might be confusing). Their role in the process is not to cater to the desires of the proposed person with dementia, but rather to ascertain their best interests and recommend actions accordingly.
5. Accept Guardianship
The court will appoint you guardian of your parent with dementia if the Guardian Ad Litem recommends that you take on that role.
When you become your parents’ legal guardian, you have the responsibility of seeing to their well-being in all areas (health, finances, etc.). In addition, if your parent gives you legal guardianship, you can make decisions for them in their place.
A guardian or conservator is required to get the person’s consent before making any major decisions and to act only in the limited circumstances allowed by the court.
After conducting a comprehensive inquiry, the court will decide what level of authority the appointed guardian should have.
In some cases, the court will assign duties to more than one person. For example, a bank trustee could act as a corporate guardian, managing the person’s finances, while a family member takes care of matters like other housing responsibilities.
The court ordinarily demands accounting and reporting at set intervals or after making significant rulings. The court must approve even the most important decisions in advance.
Who Can Act as a Guardian?
The court will hold a hearing to decide if the person applying for guardianship is qualified for the position. In most cases, this determination is based on the petitioner’s criminal record, credit history, and the absence or presence of any conflicts of interest.
If more than one individual applies to be a ward’s legal guardian, the court will choose the most eligible applicant.
A guardian of the estate is chosen to manage the person’s financial and legal affairs (guardianship of the property), as opposed to a guardian of the person who is entrusted with making decisions regarding the person’s health and well-being.
To the extent possible, the person’s wishes and any legitimate legal instruments made in advance of their incapacity (such as a non-durable power of attorney, will, or advance directive) are taken into account.
Numerous states consider the person’s partner, grown children, or other relatives as they are frequently the most familiar with the individual’s specific needs and abilities.
However, a professional or public guardian may be appointed if a family member or close friend is unwilling or unqualified to serve in this capacity.
Are Guardians Entitled to Compensation in Any Form?
All guardians designated by the court are entitled to fair compensation for their work. When a close friend or relative (a “family guardian”) is chosen, the person is not usually expected to pay for their assistance. If the ward has the financial means, the private guardian will be compensated straight from the inheritance.
The guardian must provide a detailed accounting of all services provided, the time spent on those activities, and all related out-of-pocket expenses before the court can authorize any pay.
Those without a suitable private guardian or the financial means to acquire one are eligible for a public guardian appointment. The public’s money, including tax dollars and donations, is used to support these activities.
References
- https://stowellassociates.com/how-to-get-guardianship-of-parent-with-dementia/
- https://www.agingcare.com/articles/how-to-get-guardianship-of-elderly-parents-140693.htm
- https://romanosumner.com/blog/5-things-needed-claim-guardianship-elderly-parent/
- https://caregiver.com/articles/guardianship-alzheimers/
- https://www.curleylawfirm.com/blog/2020/10/gaining-guardianship-of-a-loved-one-with-dementia/
