Most people dealing with loved ones suffering from dementia, such as Alzheimer’s disease, will reach a point when they know their loved one is no longer able to make safe decisions for themselves. This is the point when appointing a guardian becomes imperative for the family. When someone has legal guardianship, they can make decisions for their loved one who is incapacitated. Guardianship must be granted by a judge through a court proceeding.

Determining When Guardianship is Needed

It can be difficult to determine when legal guardianship is necessary. If your elderly parent lives alone and in potential conditions that could be unsafe, you may need to consider appointing a guardian. Let’s look at an example:

Ruby is a senior who suffers from Alzheimer’s disease. Her grown children have become concerned because she lives alone and her Alzheimer’s is advanced. Recently, Ruby left the stove on unattended and a minor fire started, smoking up her kitchen. Since then, her children have removed the oven, so Ruby’s diet includes drinking Pepsi and eating goldfish crackers while refusing the pre-made meals her children arranged for her. Ruby will often wander into an unsafe neighborhood looking for her favorite store that closed 15 years ago. Even though she recently lost $12,000 to email scammers from Nigeria, she continues to send money to them. Just last week, she tripped over a pile of newspapers in her cramped apartment and badly bruised her hip. Her adult children see that Ruby is a disaster just waiting to happen.

Because of the Alzheimer’s disease, Ruby often refuses attempts to help her and make her living situation more safe. At this point,  her family’s best option may be to seek legal guardianship.

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Guardian Authority

Legal guardians are given the same authority given to parents over minor children. With elderly guardianship, family members can ensure their incapacitated loved ones with dementia are:

  • receiving necessary medical care
  • able to receive assistance of  a long-term caregiver if necessary
  • protected from financial exploitation
  • in a living situation that provides for their specific needs and keeps them safe

Obtaining Legal Guardianship

Legal guardianship is no small thing. The court must ensure that guardianships are not abused, since they remove the rights of the adult.  In the legal proceedings, the petitioner seeking guardianship must provide irrefutable evidence that the person needing guardianship is incapacitated. In addition, the guardian must  prove their own competence and trustworthiness to be appointed as legal guardian. If your elderly parent has dementia, it is relatively easy to prove they are incompetent. Before the hearing takes place in court, you will often have ample medical evidence showing their incompetence. Other evidence can be presented at the hearing as well.

When the petitioner takes their plea for guardianship to court, the bulk of the preceding is used to determine an appropriate guardian. The personal actions of the guardian can be scrutinized by the court, including how they manage their own finances and past decisions they have made regarding medical treatments. A few states require a potential guardians to complete classes that are court-approved to learn more about their responsibilities. In North Carolina, the guardian is given a handbook that explains their duties.

When a petitioner seeks guardianship, they must demonstrate their ability to appropriately use the financial assets and that a care plan is in place. If the court decides that the elderly person is genuinely incapacitated and that the petitioner would make a good guardian, legal guardianship is granted.

Emergency Guardianship

If an elderly person has previously created a power of attorney and estate plan, guardianship may have already been addressed as part of care plan for them, including financial representation and healthcare.However, there are times when a temporary legal guardianship needs to be established immediately. For example:

  1. If they are being exploited financially. Unfortunately, many scam artists look for elderly people that can be singled out and are slightly impaired. They do whatever necessary to earn the trust of the victim then get access to their funds. There are some cases, of course, where hired help or family members become the perpetrators themselves of the financial abuse.
  2. They lack decision-making capacity. There may come a time when your loved one lacks the ability to make decisions for themselves and has not appointed anyone to make decisions for them. This tends to be more prevalent in situations where younger people experience catastrophic events, such as a major accident that leaves them impaired.

If either of these cases occurs, an interim guardian can be appointed if there is evidence that there is  substantial risk of harm to the ward. Once this happens, to become the legal guardian, you must show your capabilities of acting in their best interest.

Demonstrating Yourself Competent for Guardianship

There are many things the court will look at to decide if you are competent to be a legal guardian. Of course, you do not want any bankruptcies or felonies on your record. Beyond that, one of the most important considerations is your involvement with the elderly person’s money in the recent past. The court will want to see if you have made any questionable transactions that would disqualify you from being a legal guardian. The amount of inquiry that is made will often depend on how contested the proceeding is.  The best practice is to try to engage all interested family members ahead of time and try to agree on the best arrangement for the person to avoid lengthy contested inquiries by the court into the personal lives of proposed guardians.

Using an Elder Care Attorney

Consulting with an Elder Attorney to initiate guardianship proceedings is important if you want to file for guardianship. Attorneys specializing in Elder Care law focus their practice on guardianship. Some families will seek guardianship without consulting an attorney. If you decide to initiate a court proceeding, you will need to do in-depth research online so you can navigate the court proceedings effectively without an attorney. Consulting with an attorney specializing in elder care in North Carolina will save you a lot of time and it will ensure that all areas of concern have been addressed and are represented in the court documents. If you are considering obtaining guardianship of a loved one or have other estate planning needs in the Raleigh-Durham area of North Carolina, please contact our offices by phone 919-244-2019 or email us at [email protected]

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