Older Adult Guardianship Basics

Elderly guardianship is a legal relationship created when a court appoints an individual to care for an older adult who can no longer care for themself.

It can also be referred to as "elderly conservatorship," "guardian of the person," or "older adult conservatorship."

Why Would an Older Adult Need a Guardian?

Unfortunately, an elderly person may become unable to care for themself. Illness, injury, or aging can all change a person's decision-making ability. 

This could include the inability to remember to take necessary medications, maintain regular hygiene, or properly manage finances. In these instances, it may be in the older adults' best interests for a court to appoint a guardian or conservator.

Guardian vs. Conservator

Some states may use these terms 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 their financial affairs. An older adult could have a conservator and a guardian in some states.

You should review and understand the difference between guardianship and conservatorship in your state.

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 designate a guardian:

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

The guardianship process can be long and complex. It is understandably difficult because the older adult will lose some important rights. They will have their care entrusted to another person.

In California, for example, the process involves all of 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 why 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:

1. Reviews the petition
2. Listens to statements
3. Determines whether the elderly person lacks the ability to care for themself
4. Decides whether to grant the guardianship petition

Duties of a Guardian

A guardian has a duty of care toward the older or vulnerable adult. In plain terms, this means that the guardian must put the interests of the elderly person first.

The guardian may have many responsibilities, such as:

• Deciding where the person will live
• Keeping them healthy
• Preparing a budget based on their finances
• 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.

Pros and Cons of Elderly Guardianship

The main purpose (and hoped-for benefit) of guardianship is that an older adult receives proper care. This should only apply to someone who can no longer care for themself. However, there are several drawbacks that may come with guardianship.

Guardianship petitions are usually expensive. There are numerous forms to fill out, many procedural requirements, and likely several court hearings. There may be opposition to a proposed guardianship, perhaps by the elderly person or by a family member. If so, the process becomes even more involved and can be emotionally and financially draining.

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

• Manage their finances
• Choose their own caretaker
• Decide where they live

There's also the risk that the guardian will fail to act in the best interest of the elderly person. Financial exploitation or older adult abuse is a risk in some guardianships. 

Alternatives to Guardianships

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

• Living Trust - The elderly person can designate someone to handle financial affairs. Get a DIY living trust for a small fee.
• Representative Payeeship - If the older adult's income is from government benefits, they may designate someone to manage this income.
• Power of Attorney - 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 designate someone as a standby guardian in case the person loses the ability to care for themself.

Note that all of these alternatives involve the elderly person willingly assigning their rights to another person. If the older adult becomes unable to do so because of mental incapacity, then these alternatives are no longer available.

Getting Legal Help

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