When an aging parent loses the ability to make sound decisions, adult children often need to step in. If cognitive decline has rendered your parent unable to sign a power of attorney, you may need to pursue legal guardianship. Learn how to get guardianship of a parent so you can help manage their daily care and medical decisions.
What Is Guardianship?
Guardianship allows a guardian to make decisions for a ward who can no longer care for themselves. A ward is placed under the legal protection of a guardian by a court because they can’t manage their own affairs. This arrangement is helpful when someone is affected by a serious illness. Adult children may seek it for their parents with dementia, Alzheimer’s disease, or cognitive decline.
No one besides the state court can appoint a guardian. Because guardianship removes some of the ward’s legal rights, courts often consider it a last resort. It can also be a time-consuming and expensive process. Depending on the case’s complexity, it can cost a few thousand dollars or more. Costs incurred may include attorney, filing, and maintenance fees.
Once appointed, the guardian takes on a fiduciary duty, meaning they must act in their ward’s best interest. A guardian’s duties often include:
- making healthcare decisions
- arranging daily care
- managing the ward’s finances
- ensuring the ward’s well-being
This court-created relationship protects vulnerable adults who can no longer care for themselves. It becomes necessary when no other legal alternatives, like a power of attorney, are available.
Guardianship vs. Conservatorship
Some states use the terms conservatorship and guardianship to refer to the same thing. However, most make a distinction.
A conservator has control over a person’s finances and legal matters. A guardian has broader powers, like making healthcare and daily living decisions.
How to Obtain Guardianship of a Parent
Even if you’re close with your elderly parent and know you’ll be the right caretaker for them, you can’t decide on the matter. You must go through your state’s court to seek guardianship. Follow these key steps to acquire guardianship of your parent.
1. Assess Your Eligibility to be a Guardian
Determine if you are ready to be your parent’s guardian. It will require vigorous time and attention, and you must prepare to make decisions in their best interest.
You should also consider whether the court would allow you to be their guardian. The court may deem you a suitable choice as a guardian if you demonstrate the following characteristics:
- You meet minimum legal eligibility: Most states allow competent adults who are at least 18 to be legal guardians.
- You have no criminal records: You should have no criminal convictions or pending charges.
- You are financially stable: You have not declared bankruptcy and are not insolvent, demonstrating financial responsibility.
- You have no conflict of interest: You do not have any conflicts of interest that might impair your ability to act in your parent’s best interests.
The court often prefers to appoint family members as guardians, assuming they meet the qualifications. The final decision lies with the court, so be prepared to go through the process even if your family agrees you should be your parent’s guardian.
Will I Get Compensation for Being a Guardian?
Guardians can receive reasonable compensation. Family guardians typically are not paid, but private ones are paid from the ward’s estate with court approval. Public guardians are appointed for those without suitable family or resources and are funded by the government or donations.
2. Obtain Proof of Incapacitation
Get a physician to complete a medical exam for your parent. The exam should be current, meaning it needs to be conducted within 30 to 90 days before filing the guardianship application. Check with your local court or state statute for the exact timeframe required in your jurisdiction.
You may need to seek multiple medical opinions, especially if mental or behavioral issues are involved. A psychologist’s evaluation may also be necessary. Be sure to obtain a certificate or letter that clearly outlines your parent’s condition and level of incapacity.
Many states require specific forms or medical certificates for guardianship petitions. To ensure you’re using the correct form, explore the table below for links to each state’s official incapacity certification requirements.
| State | Form Name |
|---|---|
| Alabama | n/a |
| Alaska | n/a |
| Arizona | Guidelines for Health Professional's Report |
What If My Parent Refuses to Be Examined?
Sometimes, individuals may refuse to be examined because they don’t understand the severity of their condition. In this case, proceed with the guardianship application in probate court and request the court to mandate an exam. Courts can compel your parent to undergo an independent medical exam and designate a physician for evaluation.
3. File a Petition with the Court
Start the legal process by filing a petition with the appropriate court. It may be with the probate or family court in the county where your parent lives. To find the right court, check your state’s court website or contact the local clerk’s office. In the petition, you’ll ask the court to appoint you as your parent’s guardian and explain why they need this support.
You can get the required form from your state or county court website. Be sure to check your state’s specific rules. Some states, like New York, have different types of guardianships (e.g., Article 81 Guardianship) depending on the situation.
A Petition Doesn't Guarantee Guardianship
Once you file a petition, the court will set a guardianship hearing. This hearing will determine whether your parent needs a guardian and whether you’re the best person for the job.
If your parent needs immediate intervention, you may request emergency guardianship. You’ll still need to file with the court, but show that urgent action is necessary to get a faster response. In a normal situation, it can take several weeks to a few months to complete the process. Emergency cases may be reviewed more quickly, but court approval is still required.
4. Notify Relevant Parties
After the court sets a guardianship hearing, you must notify (or “serve”) your parent and all related or interested individuals and facilities. Relevant parties can vary by state, but they may include the ward’s:
- spouse
- parents
- children
- siblings
- grandparents
- grandchildren
- hospital or care facility
- veteran’s agency
- attorney
When you issue proper notice, interested parties can raise concerns about the guardianship appointment during the hearing. If you fail to notify the required parties, the court will cancel your hearing.
For service of process, provide a copy of your petition and other required documents. The documents can be delivered by:
- a third party by hand delivery (the recipient needs to sign an affidavit of service) or
- certified mail
Different states may have different delivery requirements for petitions based on the recipient. Depending on the county and delivery method, you must serve the documents a few days (usually 10 to 20) before the hearing date.
What If a Relative Is Missing?
You must make a good-faith effort to locate any missing relatives. If there is no way to contact them, you may want to ask the court’s permission to serve them by publishing a notice in a newspaper or seeking a waiver of service.
5. Attend the Court Hearing
In most cases, you and your parent must attend the hearing. Your parent’s presence may not be required if a physician indicates they are unable to attend and the court approves of their absence.
At the guardianship hearing, you must present clear and convincing evidence to the court that your parent needs a guardian. Evidence may include:
- proof of incapacitation, including medical reports and physicians’ certificates
- social service reports from social workers
- testimonies from relatives
- testimonies from experts, such as doctors or psychologists
- financial records demonstrating mismanagement
- videos or photographs showing the need for intervention
Unless your parent already has a lawyer, the court will appoint an attorney ad litem. An attorney ad litem is a legal representative assigned to advocate for your parent’s wishes and rights. Their job is to represent what your parent wants, even if it means opposing guardianship. If your parent believes they do not need a guardian, the attorney ad litem may argue against your petition in court.
Additionally, anyone who attends the hearing has the right to object to your proposed guardianship. The case may go to trial if multiple individuals want to be considered potential guardians.
6. Wait for the Court’s Decision
After the hearing, the judge will decide whether guardianship is necessary and whether you are the right person to serve. If the court approves your petition, you’ll receive official documents (called “letters of guardianship”) that give you legal authority to act on your parent’s behalf. There are two types of guardianship that the court may grant you:
-
Plenary guardianship (full guardianship): This gives you the power to exercise all legal rights and duties for the ward. It combines the two main types of guardianship:
- Guardianship of the person: Authorizes you to make day-to-day decisions, including medical, housing, and food.
- Guardianship of the estate: Authorizes you to manage your parent’s assets and make financial decisions.
- Limited guardianship: Limited guardianship allows your parent to maintain certain rights while you make specific, court-detailed decisions. For instance, your parent may handle finances while you oversee medical decisions. This arrangement, subject to annual review, is suitable when full guardianship isn’t necessary.
If the court denies your request, it may be because your parent is still legally competent or there are less restrictive alternatives available (like a power of attorney). Or, another person may be better suited to serve. In this case, the court may dismiss the petition or appoint someone else as guardian. You may have the option to appeal or file again with more substantial evidence, depending on your state’s rules.
If the court deems no family member suitable as your parent’s guardian, it may appoint a professional or public guardian. Professional guardians are paid from your parent’s estate based on court-approved amounts, while public guardians are funded by the government and charitable sources.
7. Fulfill Your Role as Guardian
If the court appoints you as a guardian, you may be required to submit an Acknowledgment of Duties form to confirm you understand your responsibilities. You must also notify your parent and other interested parties of your appointment by serving a Notice of Entry of Order Appointing Guardian.
Your duties as a guardian may vary depending on the type of guardianship granted and the state you live in, but they can include:
- making end-of-life decisions
- inventorying your parent’s assets and income
- paying your parent’s taxes
- filing annual written reports with the court
- attending classes regularly
- keeping complete and accurate records
- requesting the court’s approval on major decisions
In all instances, be sure to advocate for your parent and support their well-being. It’s your job to help meet their needs and protect their rights.
How Long Does Guardianship Last?
A guardianship appointment is usually indefinite unless circumstances change. It may end if the ward regains capacity or passes away. It can also end if the guardian resigns, is removed, or is replaced by the court.
State Laws on the Appointment of Guardians
Because guardianship laws vary by state, it’s essential to understand the requirements where you live. Following your state’s rules can prevent delays in the appointment process. Explore the laws in your state below.
| State | Law |
|---|---|
| Alabama | AL Code § 26-2A-100 |
| Alaska | AK Stat. § 13.26.201 |
| Arizona | AZ Rev. Stat. § 14-5301 |
Alternatives to Guardianship for an Elderly Parent
While guardianship may be necessary if a parent is already incapacitated, it’s much easier for them to prepare ahead of time. A person must be mentally competent to sign a power of attorney, so if your parent is already incapacitated, it’s too late to grant you this authority. Instead, you’d need to petition the court for guardianship. To avoid this situation, encourage your parent to complete key legal documents while they are still of sound mind:
- Durable power of attorney: Remains effective after your parent becomes incapacitated and empowers the agent to make financial and legal decisions.
- Limited power of attorney: Provides the agent with authority for specific tasks or for a limited period. It can apply through periods of incapacitation if your parent notes this preference in the document.
- Medical power of attorney: Grants the attorney-in-fact durable powers to make health care decisions on your parent’s behalf.
- Springing power of attorney: Becomes effective upon certain events, so it may become effective upon your parent’s incapacitation if they note this requirement in their document with terms allowing for you to get emergency power of attorney.
Choosing the right type of power of attorney depends on your parent’s needs and circumstances. Instating the proper documents now can save immense stress during a future change in circumstances.
What Is a Non-Durable Power of Attorney?
A non-durable POA becomes null upon the principal’s incapacitation. While it won’t help if a parent becomes incapacitated, you may still encourage them to create this document so a trusted agent can assist with their legal or financial matters while they’re competent.
Other Documents to Consider
In addition to a power of attorney, other estate planning documents can help your parent plan for the future:
- Advance directives: These allow your loved one to specify medical treatment preferences. They typically include a living will, medical POA, and a DNR order (if applicable).
- Living wills: These documents outline wishes regarding life-sustaining treatments. A living will can be an invaluable resource when a loved one sustains a severe injury or develops a terminal illness.
- Health care proxy: Similar to a medical power of attorney, a health care proxy designates someone to make medical decisions if your loved one is incapacitated.
Always Check for Existing Documents
Before you consider guardianship, check if your parent has implemented POAs or other end-of-life documents. They may have completed them without your knowledge. Check with their attorney and health care facilities, and review their estate planning documents if you have access to them.
