When Should I Consider Guardianship?


If you have an aging loved one who is starting to behave in an uncharacteristic manner such that you are worried about his well-being, you might be thinking about how to help him. You are mulling over whether you should have him live with you, set up assistance for him at his home, or talk with a lawyer with guardianship experience about legal options to safeguard him.

Get Advice from Professionals

Go along to your parent’s next doctor appointment and tell his doctor about your concerns. It will be significantly easier to get the guardianship approved by the judge if the treating physician supports it. This conversation can be uncomfortable with your parent in the room, but HIPAA rules make it more difficult to get doctors to give an opinion without him allowing you to talk with his physician.

Talk with other experts, like a social worker, psychologist or gerontology specialist. Since seniors often have “scattered” capacity, meaning they are perfectly capable of handling some aspects of daily life but entirely vulnerable in others, it can feel like trying to nail Jello to the wall to decide what level of help they need. Getting recommendations from professionals can take stress off of your shoulders and can make it easier to convince your parents and other close relatives if a guardianship is in his best interests.

Pursuing a Guardianship Can Be a Bumpy Road

Sadly, pursuing a legal guardianship can do serious damage to your relationship with your loved one, and the harm can be long-term or even permanent. Often the people who need guardianship the most fight it the hardest. Other family members may also push back, denying that he needs this level of protection. Your siblings may feel they would be better guardians than you. It can be extremely challenging to have to fight your family to do what you think your parent needs.

It can be hard to admit that the people who raised you are becoming vulnerable. If your parent loses thousands of dollars to internet scammers, your siblings might blame it on your parent’s lack of tech savviness. If she wanders around outside alone at night or makes erratic decisions, they may say she is eccentric. If she repeatedly falls and injures herself or leaves the stove on and causes a fire, they may say she is just accident-prone.

Explore the Alternatives

The right choice will depend entirely on the facts of your situation, but there may be a way to safeguard your parent with a less restrictive option. You see, if you get a guardianship, the judge will have to declare your parent incompetent. He will no longer be able to enter into binding contracts or handle his own affairs. A guardianship can take months to get and be more expensive than other possible options, but if your parent needs one, it will be worth the effort.

On the other hand, in some cases, you might be able to protect your parent through using a durable power of attorney for financial matters, a health care power of attorney, or some other legal option. Your parent must, however, still have the mental and intellectual capacity needed to set up these documents. Some people find that non-guardianship legal documents are a useful temporary solution when the parent is in the middle ground between needing some safeguards but not yet needing a guardianship.

The Optimal Time to Get a Guardianship

Although life is seldom so cooperative, the ideal time to pursue a guardianship is:

  • When your parent is vulnerable and unable to care for himself or make appropriate decisions, AND
  • You are ready to make tough decisions, AND
  • You can handle hostility and resentment from the parent as well as opposition from siblings who might feel you are not the best person to serve as guardian.

Caring for an aging loved one is not a task to attempt alone. Getting professionals on board will lighten your load. Schedule a consult with estate planning and administration attorney Stephen Thienel today. Mr. Thienel has decades of experience assisting clients in assisting individuals with their estate plans throughout, Maryland, Virginia, and the District of Columbia.

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