This week, we have been looking at how to help take care of an elderly relative when they can no longer care for themselves. In Part I and Part II of this series, we looked at several lesser-restrictive alternatives that can help families cope with making decisions on behalf of their incapacitated relatives.
But many times, those fall-back options are not available. In situations where no lesser-restrictive alternative exists, families may be forced to apply for a Guardianship over the elderly relative.
A Guardianship is simply a way for a court to assess whether an individual is incapacitated. The court will perform an investigation, have a hearing, and determine based on the evidence whether the elderly individual truly is unable to make decisions for themselves and/or care for themselves properly. If the court feels that the individual cannot perform these basic functions, the court will name a Guardian to make those decisions for the elderly individual. In so doing, the court actually takes away the rights of the elderly individual to make decisions on his/her own behalf, and instead gives the Guardian the right to make those decisions. Since the court is taking away these basic rights, it is a lengthy process to be able to have a Guardian named.
The process of applying for a Guardianship can be difficult, so you’ll want to make sure you have a lawyer who regularly helps clients in this area.
There are two types of Guardians which can be named: a Guardian of the Person, and a Guardian of the Estate.
Guardian of the Person
When an elderly individual cannot care for himself/herself properly or make their own medical decisions, the court will name a Guardian of the Person to make important decisions about where the elderly individual should live, who will care for that individual, and what types of medical treatments that elderly individual should receive. This power will allow the Guardian of the Person to hire an in-home caregiver, place the elderly individual in an appropriate residential facility (e.g. assisted living or nursing care facility), or bring the elderly individual to live with them. Likewise, this power will allow the Guardian of the Person to meet with the elderly individual’s doctors and make decisions on how to provide the best medical care possible.
Guardian of the Estate
When an elderly individual can no longer take reasonably take care of their finances, the court will name a Guardian of the Estate. This Guardian of the Estate will manage the elderly individual’s funds, use the elderly individual’s funds to pay bills on their behalf, and make financial decisions affecting the elderly individual. The Guardian of the Estate has to keep a strict accounting of everything that is done on behalf of the elderly individual to protect against fraud.
In many instances, the court may name one person as both a Guardian of the Person and Guardian of the Estate of an elderly individual. In this way, one single relative (or friend) can effectively take care of all of the major decisions for the elderly individual and provide for their care.
While getting a Guardian named by the court can be a difficult procedure, a good Probate Lawyer can help guide you through this process.
I hope this series has been helpful for you. If you have an elderly relative that may need help, give our lawyers a call at 214-236-2712 or click here for more information. We would be happy to meet with you and help you and your family develop a workable plan for how to provide adequate care for your aging loved one.