If you are a grown child of an aging parent who is starting to show signs of senility or dementia, you may wonder what the next step is. How will you get guardianship of your parent so that they get the care they need going forward?
Almost 17% of our population in the United States is over the age of 65, according to the Census Bureau in 2019. The Census Bureau predicts that seniors will outnumber children by 2035. With our aging population, the need for senior care will only increase.
The majority of seniors do not have plans in place for their long-term care. Therefore, it is up to children or other relatives to make decisions about their financial, physical, and emotional well-being should they become unable to care for themselves.
Once you learn the steps to getting guardianship of an adult parent, you can make decisions to help them live a full life and stay safe.
Make a Plan BEFORE You Need One
The easiest way for a parent to prepare for old age and senility or incompetence is to meet with an attorney. A durable general power of attorney is a protective document to put in place before it is needed. This legal document allows someone to choose who they would want to handle their plans should they become incapacitated or incompetent. It also circumvents the court process if your parent becomes incapacitated or incompetent. The person named in the durable general power of attorney has the authority to make the needed decisions.
When someone doesn’t plan, our court system has default laws. However, these laws may bring results that are not what your parent wants.
Going through the court system to get a parent’s guardianship can be expensive. The courts can often load you up with tedious auditing requirements. The courts may also place limitations on your ability to protect your parents and their assets. Often, the courts may give guardianship to someone that your parent would not approve of.
Seeing a Doctor
If your parent shows concerning signs of forgetfulness, talk with them about getting a clinical assessment. If you have a good relationship with your parent, bring them to the appointment and talk with the doctor. Even if your parent is doing well now, going to the doctor with them can be helpful. Creating a relationship with your parent’s doctor can help with your transition to “caregiver” for your parent later.
When a parent loses the capacity to make certain decisions and may need your help, it is time to take action. If they are still capable of making some decisions themselves, have them work with an attorney to make plans.
If you need to step in now, you can go to court to fight for guardianship. Your best plan is to see an attorney and find out what your options are.
Consider Your Parent’s Abilities
According to Dr. Leslie Kernistan with BetterHealthWhileAging, the court looks at these abilities when determining capacity:
- Medical consent capacity
- Financial capacity
- Testamentary capacity
- Sexual consent capacity
- Capacity to drive
- Capacity to live independently
If you are unsure of your parent’s abilities, ask one of their trusted friends or their doctor. Doctors who believe a patient has a mental or physical disability that may affect their ability to drive safely may report that condition. The privacy laws do not apply in that situation. If you have concerns about a parent’s driving abilities, speak with their doctor about making a report.
Making a Court Petition
The court accepts petitions for incompetence and the appointment of a guardian. In this proceeding, a judge looks at whether your parent can care for and make decisions for themself. If declared incompetent, the judge appoints a guardian to handle their financial, medical, and other decisions. As the grown child, you can make the petition and recommend yourself as the guardian.
In your petition, you must answer how your parent lacks sufficient capacity to manage their own affairs. You must show that they struggle to make or communicate important decisions. You must show that your parent is incompetent because of:
- Mental illness
- Other diseases
Answering Competency Questions
You must also fill out a section in your petition stating whether you believe your parent to be “competent” or “incompetent” in these areas:
- Language and Communication: Understands/participates in conversations, can read and write, understands signs such as “keep out,” “men,” “women.”
- Nutrition: Makes independent decisions regarding eating, prepares food, purchases food.
- Personal Hygiene: Bathes, brushes teeth, uses proper hygiene when using the restroom.
- Health Care: Makes and communicates choices regarding medical treatment/caregivers, notifies others of illness, follows medication instructions, reaches emergency health care
- Personal Safety: Recognizes danger and seeks assistance as needed, protects self from exploitation/personal harm.
- Residential: Makes and communicates decisions regarding residence/roommates, maintains a safe shelter
- Employment: Makes and communicates decisions regarding employment, demonstrates vocational skills such as neatness and punctuality, writes or dictates application form.
- Independent Living: Follows a daily schedule, conducts housekeeping chores, uses community resources such as bank, store, post office
- Civil: Knows to contact advocate if being exploited, understands consequences of committing a crime, registers to vote
- Makes and communicates decisions about paying bills and spending discretionary money, and makes change for $1, $5, and $20
- Makes and communicates decisions regarding management of a personal bank account, savings, investments, real estate, and other substantial assets
- Can resist attempts at financial exploitation by others
The Court Process
Based on testimonies and doctor statements, your parent can be declared incompetent. At this point, a judge can appoint a guardian for them. As the petitioner, the judge will consider your recommendation for guardian.
This court process to determine your parent’s capabilities can be expensive and embarrassing to you and others. You may need to say things about your parent that are hard for them to hear and for you to say. It may also be difficult that this is a public process. Nothing about your parent is kept confidential or private. This expensive court process exposes your parent’s frailties to the public.
Courts often also require ongoing expense reports and details of what you are doing for your parent. The best way to avoid this is to work with estate planning or elder care attorneys before needing to make a petition for guardianship.
We Can Help
Our attorneys represent family members trying to protect a parent. If your parent has age-related cognitive decline, dementia, or any other condition that now prevents them from managing their own affairs, we are here for you. We advise family members about adult guardianship and alternatives to avoid guardianship.
Sometimes, it is necessary to go to Court to get authority over a person’s affairs to protect them from exploitation or care for them. We represent children, siblings, and other family members of a person that has diminished capacity to handle their own affairs. We work to help you get court-ordered authority to help them.
Helping people navigate the court-supervised process of adult guardianship is one of the things we do at Hopler, Wilms, and Hanna. Contact us today and get the help you need to care for your loved ones.