Older Adult Guardianship Basics

Some people call it "elderly conservatorship," "guardian of the person," or "older adult conservatorship."

The appointed guardian has certain duties and responsibilities to the older adult. These duties usually involve making health care or financial decisions for the incapacitated adult.

Why would an older adult need a guardian?

Unfortunately, there may come a time when an elderly parent or loved one can no longer take care of themselves or make important decisions. Illness, injury, or aging can all change a person's decision-making abilities.

This could include the inability to remember to take medications, maintain regular hygiene, properly manage finances, or make necessary medical decisions. In these cases, it's in the older adult's best interests for a court to appoint a guardian or conservator.

Guardian vs. Conservator

Some states may use the terms guardian or conservator interchangeably, while others define the duties of each term. In some states, a guardian takes care of personal affairs and day-to-day care, whereas a conservator manages the incapacitated person's financial affairs. In some states, an older adult can have both a conservator and a guardian.

Reviewing and understanding the difference between guardianship and conservatorship in your state is important.

What is the guardianship process?

States have their own guardianship processes and requirements. Generally speaking, the following people or entities can petition a court to name a guardian:

• The older adult
• A spouse or domestic partner of the elderly person
• A relative or adult child of the older adult
• A friend of the elderly person
• A state or local government agency

The guardianship process is long and complex. It isn't easy because the older adult can lose some important rights.

In California, for example, the process involves all the following steps:

1. Filing a Petition for Appointment of Conservator form
2. Providing required information about the elderly person, the person filing the petition, relatives of the elderly person, and the reasons guardianship is necessary
3. Explaining why alternatives to guardianship are not available or appropriate (see Alternatives to Guardianship section below)
4. Informing the older adult (along with their relatives) of the petition for guardianship
5. Allowing an investigation by a court investigator to determine whether the proposed guardianship is necessary

The process ends with "court approval." This is a court hearing where the judge:

• Reviews the petition
• Listens to statements
• Determines whether the elderly person cannot care for themselves
• Decides whether to grant the guardianship petition

Duties of a Guardian

A guardian has a duty of care toward the older or vulnerable adult. This means the guardian must act in the older adult's best interests. The guardian may have many responsibilities, such as:

• Deciding whether to place the older adult in a nursing home or long-term care facility
• Addressing the older adult's personal needs and providing personal care
• Hiring an in-home caregiver
• Preparing a budget and handling the older adult's financial matters
• Determining the older adult's medical care and medical treatments
• Arranging for recreation and social contact

To give you an idea of the many potential responsibilities involved, California's handbook for appointed conservators is over 300 pages long.

Pros and Cons of Elderly Guardianship

The primary purpose (and hoped-for benefit) of guardianship is that an older adult receives proper care. A legal guardian should only be in place for someone who can no longer care for themselves. But several drawbacks may come with guardianship.

Guardianship petitions are expensive. There are many forms to fill out, many procedural requirements, and several court hearings. You might face opposition to a proposed guardianship, perhaps by the older adult or a family member. If so, the legal process becomes even more complicated and emotionally and financially draining.

Guardianship, by nature, requires an adult to lose some of their rights and independence. For example, the older adult may lose the right to:

• Manage their finances
• Choose their own caregiver
• Decide where to live

There's also the risk that the guardian will fail to act in the best interests of the elderly person. For example, financial exploitation or older adult abuse are risks in some guardianships.

Alternatives to Guardianships

Courts consider older adult guardianship to be a last-resort option because of the drawbacks mentioned above. Depending on your state laws, possible alternatives to guardianship include estate planning documents or other legal arrangements, such as:

• Living trust — The elderly person can choose someone to handle financial affairs. Get a DIY living trust for a small fee.
• Living will — A living will is a legal document in which a person can establish their medical and end-of-life wishes in advance.
• Representative payee — If the older adult's income is from government benefits and Social Security, they may choose someone to manage it.
• Power of attorney (POA) — The elderly person may give another person the right to act on their behalf. Get a DIY power of attorney form online.
• Standby guardianship — In some states, the older adult may name someone as a standby guardian in case the person suffers from mental incapacity.

All these alternatives need a person to assign their rights to another person willingly. If the older adult becomes mentally incapacitated, these alternatives are no longer available.

Getting Legal Help

Older adult guardianships are complex and have consequences. If you're considering legal guardianship for yourself or a loved one or thinking about serving as a guardian, you should consult with an elder law attorney for legal advice.