Guardianship, or conservatorship, is the court-appointed authority to make decisions regarding the care and/or finances of someone who is incapacitated or otherwise deemed mentally incompetent. Elderly guardianship may be required when someone with advanced dementia does not have an active, self-appointed durable power of attorney.
It’s important to note that guardianship is considered a last resort by the courts, and it is not an appropriate option for seniors with mild or moderate forms of dementia who are still capable of making rational, informed decisions.
“If a person with dementia is still capable of making such decisions and does not have a durable power of attorney, this is a good time to get one,” advises says Jessica Smith, Community Relations Director at YourLife™ of Wildwood, a new Memory Care community in Wildwood, Florida. “Establishing a living will and care plan will ensure your loved one’s wishes are known, and legally appointing a trusted durable power of attorney now can save you the expense and hassles of procuring a court-appointed guardianship later.”
A durable power of attorney document may negate the need for a guardian or conservator because the appointment stays in effect after your loved one’s dementia renders them incompetent (unlike a regular, or nondurable, power of attorney), but there may be times when seniors who have this document still require a legal guardian to make certain decisions on their behalf.
In this post, we’ll answer some common questions regarding guardianship and conservatorship for elderly loved ones with dementia.
When Might Guardianship Be Necessary?
• Your loved one lives alone, it is no longer safe for them to do so, and they refuse in-home care or moving to a safer environment
• Their electricity or other services are shut off due to lack of payment
• They show signs of uncharacteristic overspending or have lost substantial amounts of money to scams or elder fraud
• They are mismanaging medications or neglecting their diet or hygiene
• Cooking has become unsafe
• They’ve stopped cleaning their home or removing garbage
• They wander away from home and forget how to get back
• You need to sell their home or other investments not authorized by your power of attorney status
• They require medical treatment outside the realm of a healthcare proxy that may be in place
Why Are Courts Involved?
Unlike a durable power of attorney – whom your loved one freely chooses to represent them –guardianship will transfer your loved one’s rights to you without their explicit permission, which they may resist. These include the rights to manage their finances and healthcare decisions, choose their own caregiver, and decide where they live. The court is there to confirm the person is mentally incapable of making rational decisions for themselves and that their appointed guardian is competent and will act in the person’s best interests. The court considers the prospective guardian’s character, history, physical capacity, and other relevant attributes.
What Actions Must I Take?
1. Hire an attorney. Gaining guardianship can be a costly and time-consuming venture and petitioning to have someone you love declared mentally incompetent can be emotional and overwhelming. It’s a good idea to hire a family law attorney or elder law attorney who has extensive experience in the area of guardianship. A lawyer will ensure your petition is processed as smoothly as possible in your favor.
2. File your petition in probate court to have your loved one declared legally incompetent and to become their guardian. You must present why you believe the person is mentally incompetent, incapable of caring for themselves and making sound decisions, and that you are essential to their safety and welfare.
3. Have your loved one undergo a psychological evaluation. In addition to your testimony, your loved one must be evaluated by a psychologist or psychiatrist. You may schedule the evaluation, or the court may appoint an evaluation committee. The evaluation results and recommendations will help the court determine if declaring your loved one incompetent is warranted.
4. Attend the court hearing. There will be a scheduled hearing where you will be allowed to present your testimony and supportive documentation. Bring your loved one’s physicians’ recommendations, the psychological evaluation results, and other evidence that support your claim to guardianship. Meet with your lawyer before the hearing so you know what to expect, make sure you aren’t missing any information that can lead to the loss of your case, and so you can organize your testimony in the most effective way possible.
I’m My Loved One’s Guardian. Now What?
1. Your responsibilities to your loved one. Guardians can be given limited or broad authority, depending on what a court decides is needed based on the extent of your loved one’s incapacity. These can include:
• Determining where your loved one will live and monitoring their residence for safety
• Providing care personally or hiring competent professional assistance
• Making informed decisions regarding medical treatments
• Deciding how finances are handled, what types of financial benefits are needed, and how assets will be invested
• Paying bills and protecting your loved one from financial exploitation
• Managing real estate and other tangible personal property
• Consenting to and monitoring non-medical services, such as counseling
• Releasing confidential information
• Keeping records of all expenditures
• Making end-of-life care decisions
• Acting as a representative payee
• Maximizing their independence in the least restrictive manner
2. Your responsibilities to the court. It’s important to keep precise records, as the court will hold you accountable for the decisions you make on your loved one’s behalf. Generally, the court requires care and wellbeing reports and financial accounting at regular intervals or whenever important decisions are made. Guardians must also regularly report to the court about their guardianship status and personal competency as a qualified guardian.
If all of this seems overwhelming, try not to get discouraged, says Jessica Smith from YourLife™ of Wildwood. “Gaining guardianship can be a stressful process, but the peace of mind you’ll have knowing you’ll be able to make the best care, safety and financial decisions for your loved one will make it all worthwhile.”
For more information or caregiving tips, call our dementia care experts at YourLife™ of Wildwood today at 352-433-0942.
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YourLife™ of Wildwood provides the most exceptional Memory Care and uplifting lifestyle for our residents. In fact, we were created with that one purpose in mind. Each day, we focus all our energy, attention and resources on creating an environment that caters to each resident’s personal needs, choices and individuality, while ensuring unequaled peace of mind and dedicated support for families.
At YourLife™ of Wildwood, we have the ability to design and personally tailor plans around our residents thanks to our sole focus on Memory Care. We understand that everyone has their own story, specific needs and retained abilities, so we develop personally inspired care plans that help to enhance and support each person’s independence while enriching their days. To ensure further peace of mind, our team of YourLife™ Personal Care Specialists is on site 24 hours a day, seven days a week to provide assistance with everyday activities, gentle reminders and redirection.
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