A Detailed Process for Securing Legal Guardianship of a Parent

An Overview of Legal Guardianship

Legal guardianship is a formal, court ordered process that grants an individual the power to make decisions over the care, management and finances of another person. In general, guardianship establishes a legal relationship between the guardian and the incapacitated person, one involving a fiduciary duty to act in the best interests of the individual. It serves to protect those who cannot care for themselves due to various debilitating factors, such as aging, disease or mental illness.
In many ways, legal guardianship reflects parent-child responsibility, in which the guardian or parent is responsible for making decisions concerning health, finances and even living arrangements. As the individual in command of the guardianship, this person has the authority to accept responsibility for the care of the ward or person under guardianship, while also having a responsibility for overseeing their care with the same consideration and thoughtfulness owed to a son or daughter. In essence, when an aging parent can no longer look after his or her personal or financial well-being, an adult child can step in to fulfill that role as a legal guardian. No matter how it comes into being, legal guardianship is often a necessary option when it becomes impossible for certain vital responsibilities to be handled by a parent.
Depending on the state in which a guardianship is established , the requirements for obtaining legal guardianship can vary. Some factors affecting the enacting of legal guardianship may include:

• The levels of incapacity
• The availability of alternative options for care or management
• The nature of the individual’s property, finances and healthcare needs
• Whether the need for guardianship is temporary or permanent
• The relationship of the guardian to the ward

In many states, there is a clear legal process for gaining guardianship over an individual from both the court and the individual themselves. The process consists of filing a petition with the court, verifying the incapacity of the individual and attending a hearing at which the guardian’s qualifications will be evaluated for effectiveness in assisting the individual.
Although the difficulties involved with a guardianship are likely to be overwhelming, the granting of the authority to make medical, financial and personal decisions for your incapacitated parent from the court can provide a way to care for an individual who is no longer able to do so for themselves in the most effective and responsible manner. With the legal grant of authority, you can ensure your parent receives the best possible care until the end of his or her life.

When Is Guardianship Required?

The decision to pursue legal guardianship of a parent is often dictated by specific circumstances and conditions. In some cases, when a parent’s cognitive abilities are on the decline, a child may have to consider whether establishing legal guardianship will be in the best interest of their parent. Furthermore, if a parent is suffering from a debilitating mental illness, it might then become necessary to gain legal control over their affairs.
Unfortunately, there are many situations and conditions that would lead a person to seek legal guardianship of their parent. Therefore, determining when a parent is no longer capable of managing their own affairs and needs legal protection can be extremely difficult. In order to help you better understand this complex issue, consider the following reasons you may have to obtain legal guardianship of a parent. These situations can help you identify when you may need to consider becoming your parent’s legal guardian.
Declining cognitive abilities – Memory loss and lack of focus are often symptoms of many different conditions, including Alzheimer’s disease. Parents suffering from this form of dementia will not necessarily be aware that they are incapable of fully managing every aspect of their own lives. As you’re careful to monitor your parent’s cognitive abilities, you will begin to notice whether they can no longer make certain important decisions. At this point, you will want to start looking into protecting them through legal guardianship.
Mental illness – A number of factors serve to keep individuals suffering from mental illness from accessing essential care. One of the most debilitating factors is often the inability of these individuals to realize they’re suffering from a disorder. In other instances, the person simply does not understand how impacted their day-to-day quality of life can be, and may continue to go about their daily lives as usual. For this reason, it may be necessary for you to petition the court for legal guardianship at the first indications of your parent beginning to lose touch with reality.
Physical disability – If your parent is unable to care for him or herself due to a physical disability – such as a health condition or mobility limitations that make it impossible to function independently – seeking legal guardianship may be in your parent’s best interest. This becomes a necessity when your parent is unable to care for their health care needs and fail to seek appropriate medical attention. Your parent may also have assets they can’t access, or important affairs they cannot handle due to their disability. Legal guardianship will enable you to manage your parent’s health and financial needs until they recover.

The Legal Maneuvering of Becoming a Guardian

In order to obtain legal guardianship over a parent, a petition must be filed in the appropriate probate court and then served on the alleged incapacitated person at least 14 days prior to a hearing. After the petition is filed, the court will appoint an attorney ad litem to represent the proposed ward.
Your petition must describe the nature of the incapacity and set forth the powers your guardianship will have. Generally, the guardian will have all of the rights and powers of an agent under a durable power of attorney. In addition to the duties of your agent, this will include the power to make medical decisions for the incapacitated person.
If your parent has made a durable power of attorney, you still must establish your appointment as the legal guardian in order to make these decisions. However, there is one big caveat to this: the power of attorney is valid only if the principal was competent when it was signed. If the principal lacked capacity then the power of attorney is invalid and the Court will not enforce it.
Once the court appoints an attorney ad litem, he or she will investigate whether guardianship should be granted. The attorney ad litem will file a report with the court including the attorney’s recommendations on how and if a guardianship over the parent should be established.
Once the court appoints an attorney ad litem, it may not be necessary for the incapacitated individual to attend the hearing on a petition for guardianship. The court will not appoint a guardian if the individual is capable of better exercising his rights than another person (i.e., there is a less restrictive alternative). Some less restrictive alternatives include a limited power of attorney or health care surrogate. In most cases, because parents usually do not lose the capacity to have a restricted power of attorney, it is very likely that a limited guardianship will be established.
Additionally, a guardian may be required to submit an annual accounting of funds and assets. Once the hearing is held, the Court will issue a letter of guardianship. At this point, the Court has jurisdiction over all actions involving the ward and the guardian.

Documentation Necessary for Guardianship

A parent’s physical or mental incapacity can make securing a guardianship a necessary step in the life of their child. A parent may no longer be able to manage their financial affairs or even properly take care of themselves in general, making it essential for their child to obtain legal authority to step in. Yet, as the process of obtaining legal authority is complex, lining up the needed documentation for a guardianship application and proceeding will go a long way to prove essential information. Unfortunately, if such information is not in place, the application will be stalled, if the guardianship even goes through at all.
What exactly is needed? In order to successfully gain a guardianship over your parent, it is essential to provide sufficient documentation in the form of financial records, a medical evaluation, and letters from those that are familiar with the incapacitated parent’s physical condition. Here are the details:
Financial records and data
As part of the guardianship application process, the court wants to know how much wealth is held by the incapacitated parent. This is why you need to provide such documentation as bank statements and tax returns. How much is in the checking and savings accounts? What is the total of any IRAs? How much does your parent earn in Social Security benefits? Providing such details helps the court to determine how much the parent is able to afford while life is stabilizing and getting back to normal.
Medical evaluation
Next, the reasons why you are applying for guardianship must be clearly spelled out for the court. Since capacity can sometimes involve both mental and physical issues, a doctor or psychiatrist should conduct both a physical and mental assessment of the incapacitated parent. This is the information that the court will need to know whether the parent is truly in need of guardianship or whether the situation is manageable without a legal proceeding.
Letters from doctors, social workers, and other professionals
Finally, the court will need letters from other medical and personal professionals that are involved in the physical care and well-being of your parent. When obtaining a letter, it is a good idea to base it on a few specific points to ensure that you have the information that the court needs. Such points might include: their relationship to the ward; how long have they been involved in the ward’s physical care; and what opinions do they have regarding the ward’s ability to care for themselves. This information helps to provide the context that the court needs to determine the validity of your petition for guardianship.

Difficulties and Considerations

In addition to the process of filing a petition, there are many potential challenges that can arise. One potential challenge is a disagreement with other family members over whether or not you or another family member should be deemed the legal guardian. You will likely want to work out any disagreement with the other family members in advance of filing a petition. As family dynamics can be complex and stressful, a lack of communication on the subject could lead to hard feelings and an uphill battle to obtain guardianship.
In terms of the potential emotional drain on you, this may be a long process. The process will require you to gather significant amounts of information and paperwork , which can be both time consuming and emotionally challenging. You may also want to seek medical evidence of the parent’s disability, which may require a difficult conversation.
Duration and fees are also important considerations if you decide to move forward with a petition. A guardianship may be a long-term commitment, and in some cases, may last until your loved one’s death. Time, cost, and effort in making the request are all factors to consider before filing for guardianship. Legal fees can add up quickly, as can the time you allot to prepare for your petition and the post appointment process. If the court determines that guardianship is necessary, you will need to make arrangements for a multi-year, potentially permanent, obligation.

Alternatives to Legal Guardianship

The uncertainty of the legal status of an aging parent can prompt many families to consider guardianship as the most appropriate way to provide for their loved one. However, guardianship is a drastic measure that strips a person of many civil rights and tends to fall heavier on the family than the "ward," or the person under guardianship. We’ve found that many people resist guardianship and the loss of freedom it entails, so it’s worth considering whether or not there are other options that provide for family management of a loved one’s affairs without going the guardianship route. Some individuals may only need some assistance managing their affairs, and not a full legal guardianship. In those cases, there are alternatives to guardianship.
Power of Attorney
Designating someone to handle financial and legal matters may be a good alternative to a guardianship. A General Durable Power of Attorney enables the "agent" to step in for your loved one in matters of personal finance, real estate, and legal matters. A Power of Attorney may be in effect while your loved one is still fully competent, and would have the advantage of being less disruptive to your loved one’s life. Your loved one does not need a court to appoint the Agent if he or she wishes to sign this document. However, a General Durable Power of Attorney terminates automatically when your loved one becomes incompetent, so a Financial POA (sometimes called a "Durable Power of Attorney"), signed while competent, can be effective during periods of incapacity. Your loved one may also want to grant a Healthcare Power of Attorney while they are still competent so a loved one can make healthcare decisions in case your loved one is unable to express his or her own health care wishes. A Healthcare Power of Attorney is not automatically revoked by an individual’s incapacity and would cover the period of incapacity as well.
Joint Bank Accounts
A joint bank account or joint real estate ownership can also offer a way to manage your loved one’s assets without needing a guardianship. However, these avenues come with limitations. For example, each joint owner will have equal access to funds and joint ownership is subject to creditors’ claims against either owner. Upon death, funds in a joint bank account will be payable directly to the surviving owner, not in accordance with your loved one’s Will.

Guidance Resources for Guardians

Although you may have made the right decision for you and your parent when applying for guardianship, there may be bumps in the road along the way. Luckily, there are many support resources available to help you navigate through the process. Organizations that have been created to help people with disabilities may be able to give you advice or point you toward other resources. You can check with the local chapter of the National Alliance on Mental Illness (NAMI) in your area, or the Autism Society of America (ASA) if your loved one has autism. There may be local support groups that meet regularly and can be easily found online . An example would be the Down Syndrome Association of Texas, but most states have the equivalent organization.
For more specific legal advice, a local elder law attorney should be able to help you if you have questions about guardianship. Many attorney’s offer free client consultations, which could be beneficial to you to receive the guidance from an experienced professional.
Above all, you are not alone. Seeking help and advice before, during and after the guardianship process is a great way to make sure you have the tools to make the best possible decisions for you and your parent.