How to Get Legal GuardianshipHow to Get Legal Guardianship

We love our older family members and want to respect their independence for as long as possible. However, some seniors, due to advanced age or health issues, lose the ability to make good decisions about their lives, their medical care or finances.

If they do not already have both a durable power of attorney for finances and a living will for healthcare, then it may be necessary to set up a legal guardianship or conservatorship.

Legal guardianship and conservatorship are different words that refer to the same thing. Different states call it by one term or the other. If your relative has one of the documents, either a durable power of attorney for finances or a living will for healthcare, but not both, then it may still be necessary to petition for legal guardianship. That is why it is so important to get both of these documents made out for your relative and signed by her while she is still mentally capable.

There are three main advantages of a legal guardianship:

  1. There is a clearly designated person to deal with third parties, like landlords, doctors and local government officials.
  2. The family has the assurance that decisions are being made by a responsible party, usually a family member.
  3. The legal guardianship also provides a clear process for a judge to approve any major decisions.

There are some disadvantages, however. The legal guardianship requires a lawyer to write up the legal papers and a court hearing in front of a judge, which can cost quite a bit of money.

Even if your older relative has one of the documents mentioned earlier, she may need a conservator or legal guardian. For example, if she has only a power of attorney for financial matters, she may need a conservator of the person for health matters. A conservatorship is time consuming as the paperwork needed is ongoing; it doesn’t end after the court hearing.

The process can put a strain on the family if they do not agree on who should be the legal guardian or conservator. Family squabbles are very upsetting and bad feelings may be dredged up at every holiday dinner.  The process can be shameful and humiliating to the older loved one if she is still capable in some ways. It may cause her to be bitter toward those family members whom she sees as the ones who instigated the conservatorship.

If she only has a living will for healthcare, she may need a legal guardian of the estate. Even if she has both of these important documents, she may need a legal guardianship if there is a situation not covered by these advanced directives. It is worthwhile to help your relative fill out and sign a living will for healthcare and a power of attorney for financial decisions while she is mentally alert. Standard forms are available online and through do-it-yourself legal programs. If you use one of these, it is a good idea to have them reviewed by an attorney. Even if the attorney draws them up for you, this will be much more economical than setting up a legal guardianship or conservatorship later on.

If you decide to set up a legal guardianship you will have to consult a lawyer. Other family members have to be notified, as they have a right to contest the legal guardianship, as does the older person who is the object of the conservatorship. It can be a long process, so don’t put it off to the last minute.

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