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What Is Elderly Guardianship?

Elderly guardianship might be granted when an older person cannot manage on her own.
Someone who is an elderly guardian may assist with physical therapy.
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  • Written By: Charity Delich
  • Edited By: Bronwyn Harris
  • Last Modified Date: 22 October 2014
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An elderly guardianship is created when a court appoints someone as the legal guardian for an elderly person who is incapacitated in some way. In most guardianship cases, the elderly person is no longer able to make decisions about his or her medical treatment, living conditions, dependents, and financial issues. A court may choose to limit this guardianship to certain areas, however. For example, if an elderly man is able to make decisions about finances but can no longer physically care for himself, the court may limit the guardianship to overseeing the man’s physical needs.

Usually, a guardian is a family member or friend of the elderly person. In the event that a friend or relative does not wish to become the person's legal guardian, a public or private agency, attorney, or other court-appointed individual can also serve. Typically, it must be a competent person over the age of 18, without a criminal record.

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An elderly guardianship appointment is generally made once a court has determined that an elderly person is incompetent. The specific requirements for incompetency vary from jurisdiction to jurisdiction. As a general rule, however, whether a person is legally competent or not hinges on his ability to make informed and educated decisions about his affairs. Another influencing factor is whether the person is able to meet his physical needs. If not, the person may need to be placed in a nursing home or other care facility, such as an adult daycare center.

Before a case goes in front of a court, a petition requesting the appointment of the guardian is typically filed. The court then grants a hearing to determine if the elderly person is incompetent and to decide who will serve as a guardian. During the hearing, a judge usually listens to testimony about the nature of the elderly person’s disability and how that disability influences the person’s capacity to make reasonable decisions. The judge may also appoint a guardian ad litem, a person who evaluates and testifies about the elderly person’s mental conditions, physical state, and social skills. Elderly guardianship proceedings can take up to three months.

This form of guardianship can be terminated or modified by a court. Usually, this is done when the elderly person demonstrates that he or she has regained capacity to make informed and educated decisions. A guardianship may also be modified if a current legal guardian becomes unwilling or unable to continue to serve in this role.

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amypollick
Post 9

@anon353504: You need to get an elder law attorney who knows how to deal with these kinds of issues. Do it before your dad dies.

anon353504
Post 8

My mom was married to my stepdad for over 28 years. He raised us kids as his own. My mom and dad had lots of financial investments (stocks, bonds, retirement, etc.) home, properties, autos, etc. My mom passed about 15 years ago and within two months, my stepdad was with my ex's mother, but we had split a year before my mom passed, but he and my dad remained good friends, especially with setting his mother up with my dad. She is/was a gold digger.

My dad and that woman lived together the next 13 years, never marrying. However, my ex had married. When my dad got with this woman, my parents owned their main home and property worth $180,000, but this woman had my dad sign papers for a personal loan of $18,000 so she could fix her place up a state away in Washington. She never had any intention on making one payment on this money, my dad has been illiterate all his life and of course we kids didn't know any of this until the bank took his home from him.

It was the home he and my mother made for themselves and us kids as a family unit. Well here it is years later, my ex drank himself to death and he died of cirrhosis of the liver and his mom followed about six months later from lung cancer. Right before she died, she talked my dad into going in and putting all his land, his finances, everything he is worth into her daughter-in-law’s eight year old son’s name.

My mom and dad had a will that upon death of our dad, that all these things would go to us kids. I'm not mad about the material things for myself, but I have grandchildren -- his great grandchildren – who I am concerned for and the fact that this woman has my dad drinking two gallons of vodka a week... That alone angers me. This woman has gone shooting her mouth off around our county about how all my dad's land is hers, etc.

What can I do? I believe my dad has been misled into creating a will under false pretenses and I'm sure he has long forgotten about the will he had with my mother, although I am also sure this new will would void that one out anyway, right?

This woman moved into my dad's home the minute her mother in law died. My dad is illiterate, so I'm quite sure he just shook his head yes and grunted when asked questions on this new will. Is there any way I can have this checked out? Does this woman have all the rights to my mom’s and dad's life savings, accomplishments, etc?

The reason it was put in her son’s name is this woman owes a lot of money and I mean hundreds of thousands, in a civil suit for running over a policeman while she was drunk. Plus, she has multiple felonies. I am not sure this would make any difference, but the reason I'm mentioning it is because I heard that it would make a big difference if I contest this will when my dad does pass. Is there anything I can do? Please help me.

anon332340
Post 7

My sister asked me to become her guardian. I agreed but have since changed my mind. How do I cancel a legal guardianship?

anon295532
Post 6

My father is about to be 70 in December and I want to know if I can become a legal guardian for him based on the fact that he is on a fixed income. He has a lot of medical issues and has a lot of medication to take. There are times he does not do this properly and goes days without taking them. He is also not taking care of himself financially very well. He has a tendency to spend his money at the beginning of the month on stupid things and then has nothing to show for it, or can't make his bills or anything last by the next month.

Is this a cause to try and become his legal guardian so that I can take control of that to ensure things are being taken care of as they should be?

anon273409
Post 5

My mother is in her 70s and I have been taking care of everything administrative on her behalf for the last 10 years.

I am wondering what I can do to legally qualify as a personal caretaker. My neighbors are telling me that it pays to do so as well. I can receive a certain stipend for helping her, meaning working with and for her/for our family essentially. I would not even consider it if I were financially more secure than I am at the moment. What do you think? I am in Boston, Massachusetts.

wander
Post 4

At what point do you think it is OK for children to demand their parents be put under elderly guardianship?

My parents greatly value their freedom and taking care of their own business, but as they age, these things are becoming more of a burden. My father is particularly stubborn and doesn't want help dealing with personal affairs, despite his declining health and inability to do everything himself.

How do you deal with your parent’s protests when you know that you can help them?

I wish they were as healthy as they once were, and I don’t want to force my way into their business, but it seems like the time will come that I have to.

letshearit
Post 3

What are some things that you should take into consideration before taking on elderly guardianship?

My parents are getting older and I often worry about their ability to care for themselves and manage their household and finances as they age. I find that my father is getting forgetful and may be suffering the early stages of Alzheimer's. This is of great concern as he is the primary caregiver to my mother who suffers from numerous medical problems.

Is it possible to split elderly guardianship among siblings, assigning certain aspects of their care to different people. I think it would be best if the tasks such as finances and home care could be divided up. Would the court be responsible for the legalities of assigning roles and responsibilities? Or would this fall to the siblings to decide who does what?

BrickBack
Post 2

@Subway11 -I bet that having the guardianship of an elderly parent is difficult, but at least you were there to help your father when he needed you the most. Parents do so much for us that it is nice for us to give back especially when they are the most vulnerable.

subway11
Post 1

I wanted to add that my sister had legal guardianship of my father because my mother was deceased and he had developed dementia. My sister also had power of attorney and handled all of my father's bills and was the one to decide when to take him off the ventilator when he went into a coma.

It is a difficult job that has a lot of responsibility. I think that the guardianship of a parent also reminds us of our own mortality.

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