Caring for an aging parent is a difficult job for any adult child. When a parent has not executed advance directives, that job is even more difficult. In order to legally help the parent, the adult child may need to seek to become the parent’s guardian.

When There Is No Durable Power of Attorney

If a parent does not prepare for their own loss of capacity, the adult child cannot create advance directives, like a durable power of attorney, on their parent’s behalf. Commencing a guardianship proceeding is the only way an adult child can be authorized to act for an incapacitated parent.

Medical Requirements for Guardianship

Guardianships that are necessary due to a loss of capacity require medical documentation. The first step is usually to obtain a doctor’s letter or physician’s certificate attesting to your parent’s physical and mental status. If your parent will not willingly submit to an evaluation but can no longer handle their own affairs, you can still petition for guardianship with the court. The court will then evaluate your parent and can compel them to submit to a court-ordered independent medical examination.

When Is it Time to Step in and Petition to Be a Legal Guardian?

Over time, you may begin to recognize certain signs that having a guardian may be necessary for your older parent. This might include lapses in bill payments, lack of healthy foods in their home, or your parent’s insistence that they can drive after a series of accidents. Additional signs it may be time for guardianship include self-isolation, hearing or sight loss, and general forgetfulness, which can lead to injury around stoves and stairs, as well as other risks.

If your parent does not have a durable power of attorney in place, once you have noticed that your parent does not have the ability to maintain their own health and safety or to handle their own finances, it’s time to meet with an elder law attorney about guardianship.

Notifying Your Parent and Family of the Proceedings

When you petition for guardianship of an incapacitated parent, the alleged incapacitated parent and certain other family members will need to be notified and given an opportunity to respond to your petition. These notifications are legally required and can sometimes create family conflict. As such, it may sometimes be appropriate to discuss what’s going on with certain close family members before filing the guardianship petition. Your elder law attorney can advise you on the best course of action and what the legal requirements are in your jurisdiction.

Your Parent’s Right to Representation

The court will appoint an attorney ad litem to represent your parent. This person will legally advocate on your parent’s behalf, representing your parent’s needs. The court may also appoint a guardian ad litem, who may not necessarily be a lawyer, to represent the interests of a parent who may be unable to care for themselves while the guardianship proceedings are in progress.

Outcome of a Guardianship Petition

After a petition for guardianship has been filed and an attorney ad litem is appointed for your parent, the court will commence their investigation of your parent’s capacity. If they find that your parent is incapacitated and requires a guardian, they will then determine whether or not you are fit to be the guardian, whether anyone else has priority to become your parent’s guardian, and if there is any reason that a professional guardian may need to be appointed.

If the court determines that you will serve as your parent’s legal guardian, it will state this in a written court order. You will remain your parent’s guardian until:

• your parent’s death,
• your own death,
• the court finds that your parent has regained capacity, or
• the court finds it is in your parent’s best interest to remove you as the guardian.

If you would like to speak with an experienced elder law attorney about guardianship for your aging parent, please do not hesitate to contact our office at 1 (800) 680-1717. We look forward to the opportunity to work with you.