Establishing Guardianship for an Elderly Parent

Long Term Care Planning

For the early part of your life, your parents were the ones you looked to when you needed care or help. As you grew up, you began relating to them as an adult, though you probably still relied on them for wisdom and guidance. But lately, you may have noticed that your mom or dad doesn’t seem as capable or competent as they once did, and they may have difficulty taking care of themselves. This is uncharted territory for most adult children—essentially taking on a parental role to their own parent. When an older adult becomes incapable of caring for him- or herself, elder guardianship may be the answer.

Deciding that guardianship of an elderly parent is necessary is usually a long process. Most of us don’t want to take away our parents’ independence unnecessarily, or sometimes even to admit that they need help. Eventually, however, it becomes impossible to deny reality. If you are faced with decisions about your parent’s need for assistance, read on to learn more about elder guardianship in Michigan.

Getting Guardianship of an Elderly Parent

If you’re not sure whether your elderly parent needs a guardian, you should consult with an experienced elder law attorney. Come to the consultation armed with a list of observations and concerns—for instance, a lot of adult children notice that their senior parent is not preparing or eating nutritious food, dressing appropriately, taking prescribed medication, or attending to their hygiene. These can all be signs that the senior is losing the ability to care for him- or herself.

In Michigan, guardianship refers to the ability for one person (the guardian) to make personal decisions for a protected person (the ward). These include decisions about where to live and what medical treatment to receive.

Many seniors who need a guardian also need a conservator: someone to manage their financial affairs because they are legally incapable of doing so. Even competent seniors can forget to pay bills or be taken in by financial scams;The same person can act as both guardian and conservator, although two different people can act in those capacities.

The process begins by filing a petition for guardianship (and/or conservatorship) with the probate court for the county in which the older adult resides. Medical documentation of the need for guardianship from a physician familiar with the senior is typically attached. The court will appoint an attorney for the proposed ward if he or she does not already have one.

The court will often appoint a guardian ad litem (GAL). The GAL is not the adult’s legal guardian. Instead, he or she meets with the senior and others to understand the situation, and makes a recommendation to the court regarding whether a guardianship/conservatorship is needed, and the suitability of the proposed guardian/conservator. The court may also order an independent medical examination of the proposed ward to determine if they truly lack legal capacity and need a guardian and/or conservator.

Once examinations and interviews are conducted and reports submitted to the court, the probate court judge will hold a hearing to determine whether a guardian/conservator should be appointed. The proposed ward and their attorney are entitled to be present at the hearing; after all, the appointment of a guardian/conservator takes away the adult’s autonomy. Therefore, the appointment should only be made if there is no less-restrictive way to protect the senior’s safety and resources.

If the thought of essentially taking your parent to court to get control over their decisions sounds stressful, you’re right. It’s particularly difficult if the parent is resisting help, or if siblings disagree about whether guardianship is needed, or who should serve as guardian. Working with an elder law attorney you trust can help to minimize conflict.

Guardianship is a challenging, but sometimes necessary, process. However, if your parent is not yet legally incapacitated, you may be able to help them plan ahead for their protection using a durable financial power of attorney and patient advocate designation (PAD, also known as a medical power of attorney).

What is a Durable Power of Attorney?

A power of attorney is a document that allows a person (the principal) to appoint someone else (the agent, or attorney-in-fact) to make decisions and take actions on their behalf. If a power of attorney is durable, that means that the document survives the principal becoming legally incapacitated.

Many people choose to execute powers of attorney while they are still in good health and of sound mind, understanding that that might not always be the case. There are several advantages to durable powers of attorney over guardianship and conservatorship.

One benefit of creating powers of attorney is that it gives the principal control over who will act on their behalf, and under what circumstances. If and when it becomes necessary for the agent to make decisions for the principal, there is no need to file a petition or go to court for a guardianship. The process is much more cooperative than adversarial.

Creating powers of attorney also eliminates the risk of two adult children fighting over which should be appointed guardian. The parent makes the decision ahead of time and hopefully, communicates it to their adult children.

Speaking of communication: it can be difficult to talk to your aging parents about estate and incapacity planning. That said, having the conversation before it’s an emergency is always easier.

The bottom line is that you should encourage your parent to create powers of attorney as part of their estate plan if they still have the capacity to do so. If they do not, and you are concerned that they are unable to care for themselves, you may need to pursue a guardianship and/or conservatorship.

Either way, we are here to help you protect your elderly parents. Contact Estate Planning & Elder Law Services to schedule a consultation.

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