How to Get a Guardianship Over Parents Who Are Elderly & Can't Take Care of Themselves

Lend a helping hand to your parent.

If the time is approaching when your elderly parents can no longer take care of themselves, it's time to consult an attorney to have guardianship papers drawn up. If your parents did not have a power of attorney or an advanced directive already drawn up, guardianship must be obtained through the court. Children often hesitate to discuss these matters with their parents, but if this paperwork can be obtained while they are still mentally competent, it saves a lot of grief down the road. In addition to dementia setting in, one or both parents could have a stroke, accident or an illness that suddenly affects their mental competency.

Things You'll Need

• Guardianship attorney
• Affidavit of incompetency from expert

Instructions

Preparing Guardianship

1. Discuss the need for guardianship with the family. If you have siblings or other interested family members, see if you can come to an agreement on who will take over guardianship. One family member may want to handle financial matters, another may choose to deal with health matters, and another may wish to set up the parents' living arrangements.

   If there are no siblings or interested family members, or if everyone agrees on one person handling everything, then things can go much quicker. If you can settle any possible disagreements before consulting an attorney, it will save time in court and avoid expensive attorney fees.

2. Find an attorney who handles guardianship cases. He will discuss the case with you and your family to see how you want it handled. He will then file the necessary documents and set up a competency hearing with the court.

3. Obtain an expert opinion. In order to be declared mentally incompetent by the court, the court requires an opinion from an expert who declares your parents to be unable to make competent decisions. This opinion could come from your family physician, psychiatrist or another expert in health care who is familiar with your parents' condition. Furnish the opinion to your attorney to be filed with the court.

4. Attend the competency hearing with your attorney. Be prepared to present any relevant information or paperwork the court may require.

5. Investigation will be done by the court if it is deemed necessary. After the court reviews the information, the situation may be investigated further. At the conclusion of the investigation, the court will determine how guardianship should be handled.

6. Follow the order issued by the court. The court may order one person to be the guardian over all matters pertaining to the parents, or may decide to split up the responsibilities. The judge may put one sibling in charge of the health of the parents, one in charge of living arrangements, and may even name a bank to handle financial matters. The guardian over financial matters will be required to keep an accounting and file a report annually with the court.

Tips & Warnings

• The parents have the right to hire an attorney, present their own testimony, and fight the decision of the court for guardianship.

• Guardianship will normally remain for the life of the parents, but guardianship responsibilities could change from one person to another.

• If the parents' incompetency is only temporary and they are judged competent once again, the guardianship can be removed.

• Guardianship and conservatorship are interchangeable terms.

References

• Aging Care: How to Get Guardianship of an Elderly Parent
• AARP; How Adult Guardianship Conservatorship Works; Joseph L. Matthews