More often than not, guardianship conjures images of a minor child in the care of a designated adult family member or friend. However, you can employ the process to obtain legal rights over elderly or aging adults, usually parents, who are losing their physical and mental health capacities. While the process is similar, there are some distinct differences when considering guardianship of an elderly parent. Very careful consideration is necessary to determine if guardianship in all of its complexities is the route to take to best protect your aging loved one.

It may be difficult for an aging parent who may not see their own decline. Often, a trigger for adult children to begin guardianship consideration is an aging parent’s determination to continue driving when they are in no condition to operate a vehicle safely. There are other determiners, but all of them point to a parent’s loss of control and independence over their lives. Be prepared that many will fight to retain their independence.

The guardianship application is commenced with a petition and order to show cause: legal documents that should be drafted by an experienced guardianship attorney. Legal guardianship proceedings will determine whether the respondent is incapacitated and whether you are fit to become a guardian. There may be a criminal background check, financial responsibility reviews, and other inquiries into any obvious conflicts of interest.

Notifications to the proposed ward and their family relatives are a legal requirement. All family members and other interested parties with the legal right to know about the petition for guardianship must receive notification of the application filing. These family members and other interested parties are laid out in the guardian statute.

Less restrictive alternatives to guardianships do exist:

• Power of Attorney – grants a person the right to make financial decisions if you become incapacitated. This legal document is usually done by the elderly parent when they put together their estate planning documents.

• Health Care Proxy – grants a person responsible for all health and medical-related decisions of the incapacitated person.

Naming these representatives is a personal decision that does not require court involvement. They are more cost-effective than the guardianship process and permit your aging parent a bit more control over who takes care of them. Other less restrictive alternatives to guardianship exist and are situational dependent upon your loved one. In the absence of feasible alternatives, it may well be guardianship is the best solution for your loved one.

When you file for guardianship, the court may appoint an attorney to represent the proposed ward, your loved one. That attorney will represent the proposed ward as though hired to do so even though they are court-appointed. That attorney’s job is to do what their client, the proposed ward, wants. If the court or appointed attorney feels more investigation is required, a court evaluator may also be appointed. This person is a court appointee acting as the court’s eyes and ears. This individual’s task is not to do what the proposed ward wants but rather to determine and make recommendations as to what is in the ward’s best interest.

Elderly guardianship, can be a very effective tool to protect your aging parent who is no longer physically or mentally up to the job of self-care. Whether or not guardianship is right for your family system requires consultation with an experienced guardianship attorney. There may be more cost-effective methods for you to achieve similar goals of elderly parent protection.

When parents create their estate plan, proactive family involvement can often lead to simplified solutions. Still, there are times when guardianship is necessary and appropriate for the welfare of your aging parent. At Rochester Elder Law, we can help guide you through your options. Contact us for a consultation.