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Elder Guardianship – What is it and Why do you need it?

What exactly is an elder guardian, and why would someone need one? In our blog this week, LiveWell Placements explores how legal guardians are appointed, their obligations, and their role for their clients.

As some people age, they get to a point where they’re no longer mentally or physically capable of taking care of themselves. When a person is deemed incapable of their care, a guardian may be appointed by a court of law. Elderly guardianship, also known as elderly conservatorship, gives the guardian the authority to make critical decisions for the person (known as the ward) over whom they've been appointed. Typically, the person has a chronic mental illness like dementia, a developmental disability, or a traumatic brain injury and can no longer decide about their finances, living situation, etc.

Generally speaking, the following people or entities can petition a court to designate a guardian:

  • The elderly person

  • A spouse or domestic partner of the elderly person

  • A relative of the elderly person

  • A friend of the elderly person

  • A state or local government agency

In many cases, the patient may need care for the remainder of their lives. In other instances in which someone has a psychological problem that can be managed, a guardian is appointed until such time as the person has gotten the proper medication and/or counseling. In cases such as this, the guardian will work to resolve the situation as soon as possible. Eventually, the person may regain the ability to take care of their own personal and financial needs.

The process of appointing a legal guardian can vary from state to state, but it often involves one or all of the following steps:

  • Petition to the court, usually the probate court, for the appointment of a guardian.

  • Notice sent to the person and their relatives to inform them that an application has been made.

  • An evaluation by medical health professionals and court investigators determines the extent of the person's mental and physical limitations.

  • A court hearing to determine whether the person is unable to make crucial decisions for themselves and determine whether the person applying to be appointed guardian is suitable for the role.

The qualifications required to be a legal guardian also vary by state. However, most states require the person to be the age of majority, and many states disqualify an applicant if they have a criminal record. And, of course, a legal guardian must be able to physically and mentally take on the responsibilities required for the role.

The exact specifics of the guardian’s obligations are determined by the court and can vary. For example, the court may appoint a guardian solely to manage the older person's financial matters or nominate a guardian to look after the older adult's healthcare decisions. They also may determine where the person will live or arrange for in-home care or meal-delivery services.

And because guardianship or conservatorship takes away some or all of the ward's legal rights, courts generally view the appointment of a legal guardian as a last resort, so if an alternative is available, the court will likely not appoint a guardian.

Some of the alternatives to guardianship include:

  • Power of Attorney - The older adult may give another person the right to act on their behalf.

  • Living Trust - The elderly person can designate someone to handle his or her financial affairs.

  • Representative Payeeship - If the older person's income is from government benefits, they may designate someone to manage this income.

  • Standby Guardianship - In some states, the older adult may designate someone as a standby guardian if the person loses the ability to care for himself or herself.

If you or someone you know requires a legal guardian, it's essential to consult an attorney specializing in elder care law. The process can be time-consuming and, in some cases, costly, so make sure that you do your research and understand all your rights and the obligations of guardianship.

If you would like to learn more about elderly guardianship, click here

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1 Comment

Phillip Lemmons
Phillip Lemmons
Jan 19, 2022

Across most legal circles in the United States, they agree on key components that separate conservatorships from guardianships and vice versus. A conservatorship, first, is a court-ordered intervention in a conservatee’s life because they are incapable of executing decisions. They can also struggle with balancing their finances, managing estates, or thinking coherently due to a mental illness or developmental disabilities.

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