When is Guardianship of an Elderly Parent Needed?

When people think of guardianship, they often think about a minor child in the care of a designated adult family member or friend, or perhaps a disabled adult child who needs care after turning 18. However, guardianship of an elderly or aging adult, usually a parent, who is losing their physical and mental health capacities is also fairly common. While the process is similar, there are some distinct differences when considering the guardianship of an elderly parent versus a young child. The guardianship process for an adult can become complex. At Michaelson Law, we like to review all possible options with our clients before proceeding with guardianship of an elderly parent.

When Is Guardianship of an Elderly Parent Needed?

In the absence of a power of medical attorney and power of attorney (POA) for financial institutions previously put in place by your parent, guardianship may be needed. Guardianship often begins with obtaining a physician’s certificate or doctor’s letter. These letters are official documents that a doctor completes attesting to the patient’s physical ability and mental acuity. The letter will state that the elder parent cannot care for themselves, perform activities of daily living, or make rational decisions – which includes setting up their powers of attorney.

If your parent struggles with cognitive decline, they may not willingly submit to this type of evaluation. Alzheimer’s, paranoia, and other types of dementia may lead to resistance for patients to agree to an evaluation, often due to misunderstanding or fear. To keep the process moving forward, a court order may require your loved one to allow the independent medical exam. The court may appoint a physician to make determinations of your parent’s capabilities if needed.

Getting the courts involved is a difficult time for an aging parent who may not see their decline, and the family who is trying to help them. One trigger that may force the family to step in to help is when they see an aging parent’s determination to continue driving when they are in no condition to operate a vehicle safely. Other factors may point to a parent’s loss of control and ability to continue basic activities of daily living. Many will want to fight to retain their independence, which is okay. We are here to help both the elderly parent and the family work through this process to achieve the best possible result for everyone.

The Guardianship Process

The guardianship application is a fairly standard procedure. If possible, have the medical examination completed before applying. However, even a complete application for guardianship does not automatically make you a guardian. Legal guardianship proceedings will determine whether you are fit to become a guardian, and Nevada’s guardianship laws are regularly reviewed to ensure the protection of the protected person. There will be a criminal background check, financial responsibility reviews, and other inquiries to determine if there are any obvious conflicts of interest.

Notifications of guardianship are a legal requirement. Family members and other interested parties with the legal right to know about the petition for guardianship must receive notification of the application filing. Typically, these family members are laid out in the estate code, but who is contacted may also depend on which family members survive and are readily contactable.

When you file for guardianship, the court is legally bound to appoint an attorney to represent the proposed protected person, your loved one. The Attorney Ad Litem will represent the proposed ward as though hired to do so even though they are court-appointed. The Attorney Ad Litem’s job is to do what their client, your loved one, wants. In Nevada, the Nevada legislature updated the guardianship law to strengthen a protected person’s right to counsel, as well as other legal changes made by the Nevada permanent Guardianship Commission to prevent the exploitation of seniors living in the state.

If the attorney representing the protected person feels more investigation is required before making a decision, a Guardian Ad Litem may also be appointed. The language may be confusing, but this person is NOT the guardian. They are a court appointee acting as the court’s eyes and ears. This individual’s task is not to do what the proposed ward wants, or what the family wants, but rather to determine and make recommendations that they see are in the ward’s best interest.

Alternatives to Guardianship

Less restrictive alternatives to guardianships do exist, but they often require planning ahead of time and putting documents in place before cognitive decline.

  • Power of Attorney – grants a person the right to make financial decisions if you become incapacitated. This legal document is usually done by the elderly parent when they put together their estate planning documents.
  • Medical Power of Attorney – grants a person responsible for all health and medical-related decisions of the incapacitated person.

Naming power of attorney representatives is a personal decision that does not require court involvement. They are more cost-effective than guardianship and allow your aging parent to have more control over who takes care of them and how. Other less restrictive alternatives to guardianship exist and are situational dependent upon your loved one. In the absence of feasible alternatives, if your aging parent no longer has capacity to make their own decisions, guardianship may be the only option.

Guardianship of an elderly parent, sometimes called elderly conservatorship, can be a very effective tool to protect your aging parent who no longer has the capacity to care for themselves. Whether or not guardianship is right for your family requires a consultation with an experienced guardianship attorney. When parents create their estate plans, proactive family involvement can often lead to simplified solutions. Here at Michaelson, we can help your family navigate their estate plan, elder law solutions including Medicare and Medicaid, and guide you through the guardianship process if needed. Give us a call at 702-731-2333 to set up a consultation with one of our experienced estate planning and guardianship attorneys today.

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