Legal Guardianship for the Elderly

If you are caring for an aging relative, or are concerned about a grandparent, parent, aunt, or uncle who has become unable to care for themselves, legal guardianship is one option you may be interested in learning more about.

When an ageing person becomes incapacitated and unable to make financial, healthcare, and daily living decisions and actions on their own behalf, appointing a legal guardian may help keep this person safe and healthy. However, legal guardianship is not always an appropriate choice and can be complex and time consuming to put into effect.

I’m Paul Margerie. At Margerie Law, I help individuals and families in the greater Milwaukee region craft personalized estate plans and get their legal questions answered. If the above description applies to your situation, here’s what you should know about legal guardianship:

What is legal guardianship? 

Guardianship, or conservatorship, is the appointment of a person (or “guardian”) who has the legal authority and responsibility for making decisions on another person’s behalf (the “ward”). The duties and decision-making abilities of the guardian are specifically outlined by the court and may extend to cover financial management, healthcare decisions, or support for daily living.

The most common scenario in which a legal guardian is appointed for an adult is when an elderly person is no longer able to make important decisions for themselves. Guardianship is often a last resort, and may be put in place only if the ward does not have other legal protections like a living trust that protects and supports their finances or a healthcare power of attorney.

How is a legal guardian appointed? 

Each state has its own laws and processes for appointment of a legal guardian for an adult. In general, the process begins with a petition to the court for the appointment of a guardian. Next, the court will notify the elderly person concerned and their closest relatives of the petition and hold a hearing to determine whether guardianship is an appropriate next step. During this hearing, the court will do everything in their power to determine if the elderly person is indeed incapacitated to the point where they are unable to make decisions for themselves, and if the person applying to take on the role of guardian is suitable, trustworthy, and able to take on the duties and responsibilities of the role. If the court determines that a legal guardian should be appointed, they will then outline the specific decision-making abilities of the guardian, which may or may not cover financial, healthcare, and daily living matters.

The elderly person for whom a guardian is being petitioned or their loved ones has the right to object to this appointment, and the court must hear their arguments for why legal guardianship is not appropriate. Remember: we are talking about legal guardianship of an adult, meaning certain rights will be taken away from them and placed in the hands of another person. This is not a decision any court will take lightly and they will often only rule in favor of appointing a legal guardian if no other options are available.

Who can be chosen as a legal guardian? 

If the court rules that legal guardianship is appropriate and necessary, they will make the decision on who should enact the role of guardian with the best interests of the ward in mind. Sometimes, one person will act as guardian for both financial and personal (healthcare, daily living) matters, or the court may decide on different people to fill these roles. Co-guardians may also be appointed. If no suitable individual is identified, in rare cases a court may determine that a nonprofit organization or association can enact the role of guardian. No matter what, the guardian must be of legal age, must be someone who knows the ward well and keeps in frequent contact with them, and must be someone who is willing, able, and available to fulfill their guardianship duties.

Appointing a legal guardian for an adult is a complex and often controversial process. The court sees legal guardianship for adults as an absolute last resort – far less preferable than ensuring an incapacitated person is cared for through the exercise of legal tools like a healthcare power of attorney, financial power of attorney, or living trust. Because of this, it is important to consider all available options if you’re trying to decide how to best care for an ageing loved one.

Here at Margerie Law, I love helping people just like you navigate legal processes around estate planning, powers of attorney, trusts, and more. I specialize in helping young families craft an estate plan that helps them meet their goals and protect their future. If you’re looking for expert legal advice, don’t hesitate – give Margerie Law a call today.