When an older adult with dementia or another cognitive disability can no longer make important decisions for themselves, such as how to manage their money or what kind of care they need, a trusted person may have to step in and make these decisions for them through guardianship.
If the incapacitated older adult has a valid health care and financial power of attorney in place, they have already nominated someone they trust. This person has the legal authority to make decisions for them.
However, sometimes there is no valid power of attorney. The older adult may not have executed one, no one can find the document, the agent(s) they nominated are unavailable, or the document does not grant sufficient authority.
When there is no agent with the power to act on behalf of the older adult under a valid power of attorney, families face a significant hurdle. The older adult may no longer understand what a power of attorney is and what powers they would give their agent. If that is the case, they are unable to create a valid power of attorney. In this situation, the older adult lacks someone with the legal authority to make decisions for them.
Guardianship of an Incapacitated Adult
In a guardianship, the court appoints someone to make decisions for the incapacitated adult. There are different types of guardianship (outside of New York, some states use the term conservatorship). Full guardianship gives the guardian the most control. A guardian of the estate manages finances. In a limited guardianship, the court specifies what the guardian can and cannot do.
Petitioning the court for guardianship over the older adult is a much more involved and expensive legal process than becoming an agent under a power of attorney. Becoming a guardian requires proving that the adult is unable to make personal or financial decisions for themselves in a court of law and assuring the judge that the petitioner is a suitable guardian.
Guardianship Case Challenges
When challenges arise, filing for guardianship over an older adult can be lengthy and complex. Families may encounter several problems throughout the guardianship process. Disagreements about whether the elder needs a guardian and who should fill the role can create tension. Proving the older adult’s incapacity requires relevant and timely medical evidence and testimony, which can involve significant preparation for the guardianship hearing.
After the court has assigned a guardian, complexities can arise if family members bring accusations of improper conduct, the guardian seeks to resign, or the person under guardianship wants to replace the guardian or end the guardianship.
An elder law attorney can help family members navigate such challenges. Having an attorney with experience can be particularly helpful for those involved in complex guardianship matters.
While each case is unique, the following are challenges families may encounter in a guardianship case involving an older adult.
Disagreements About the Need for Guardianship
Full guardianship requires that the adult be incapable of making personal or financial decisions. One of the first challenges that can come up in a guardianship case is when family members disagree about whether a guardianship is even required.
To overcome this obstacle, the older adult may undergo a medical evaluation by a qualified physician before the commencement of the guardianship. The physician may assess their condition to shed light on whether the individual has the mental capacity to make their own personal and financial decisions.
When the older adult can still make decisions but could benefit from some assistance from a person they trust, less restrictive alternatives to full guardianship may be more appropriate. The court may decide a limited guardianship is most suitable.
In instances where someone needs help specifically with managing their Social Security benefits, the government may appoint a representative payee, which can be a less restrictive alternative to full guardianship or guardianship of the estate.
Family Disputes About Who Should Be Guardian
Even when families agree that guardianship is the best course of action, disputes can arise about who should take on the role. Siblings may be at odds over who should take care of aging parents. Children from prior marriages and current spouses may also both want to assume the role.
When there are multiple petitions for guardianship over an adult, the court will make the final decision. People who get along and can work together may serve as co-guardians.
Families facing conflict may be able to avoid lengthy litigation and preserve relationships through alternative dispute resolution such as mediation. Generally, mediation is a voluntary process. Rather than finding a winner and loser, the process seeks to foster common ground. A neutral third party, called the mediator, listens to both sides, and facilitates communication and compromise.
Missing the Annual Report
Guardians must file an annual report with the court, which typically details the kind of care the person has received. Not filing the annual report can spark accusations of mishandling. The court may remove the guardian and penalize them.
Guardians can avoid problems with annual reporting in several ways, including the following:
- Keeping detailed records, including an accounting of spending from the estate
- Hiring a professional, such as an accountant
- Staying organized and on top of deadlines or working with an attorney to file the report on time
Guardian Resigning
If the guardian dies, resigns, or becomes unable to serve, families may not know who should make decisions for their elderly loved one. A guardian who no longer wants to serve must get permission from the court and explain why, such as health reasons, conflict, or moving away. The court will review whether the request is in the ward’s best interests. Those with financial responsibilities still must file an annual accounting.
Nominating a successor in the initial petition can make a smoother transition if the first guardian can no longer continue. The court may appoint this person if it remains in the best interests of the older adult.
Ending a Guardianship
A guardianship is an arrangement that can limit a person’s personal agency. If the person under guardianship is unhappy and is able to tell the court, they may try to end the guardianship. If the person remains unable to make decisions for themselves but is dissatisfied with the arrangement, the court may replace the guardian with someone else who can act in their best interest.
A guardianship is a complex and difficult process that is first best avoided by having a comprehensive power of attorney prepared by an elder law attorney. If that is no longer possible, the guidance of an experienced elder law attorney is essential in guiding the family through the guardianship process. Contact the experienced elder law attorneys at Kurre Schneps to learn how we can help.
