A 2023 Guide to Elder and Senior Guardianship

Why Might a Person Need a Guardianship?

When an adult is no longer capable of making rational decisions, they are left vulnerable to the dangers of elder abuse and exploitation.

In order to protect the senior’s well-being, the individual’s family or caregivers may choose to petition the court to appoint a guardian who can manage their affairs. If guardianship is granted, the guardian is given the authority to make legal, medical, and financial decisions on behalf of the individual.

Difference Between a Guardianship and Conservatorship

The terms guardianship and conservatorship are often used interchangeably, and while both are appointed and held accountable by the court, there is one key difference between the two.

Guardians are responsible for an individual’s personal and medical needs, while a conservator oversees finances. While a guardian is typically a spouse or adult child, conservatorships can be held by anyone deemed to be of sound mind who can convince a court of the individual’s need for a conservator.

How Does a Guardianship Work?

While each state’s process has its own nuances, the typical guardianship process involves the following steps:

1. Consider less-restrictive alternatives to guardianship. Try to address your concerns about your loved ones with less-restrictive alternatives. Perhaps you can simply help a person handle their finances or health as opposed to taking full control. However, if your loved one refuses to cooperate or fails, you can use this as supportive evidence in a guardianship hearing.
2. Set up an appointment with the senior’s physician. Make an appointment with the senior's doctor and request that they complete the guardianship petition’s medical section indicating the senior's mental and physical condition.
3. File a Petition for Appointment of Probate Conservator form. If it’s clear guardianship is the only option for protecting your loved one, then it’s time to file a petition for guardianship in probate court. This detailed document requires information about the senior in question, their family, the individual filing the petition, your rationale for why guardianship is necessary, and supporting evidence for why guardianship alternatives are not effective solutions.
4. Inform the older adult and their family. Make the seniors and their relatives aware that you are filing the guardianship petition. This is a legal requirement.
5. Wait while the court investigates. The court will task an investigator with assessing whether the proposed guardianship is warranted.
6. Attend the court hearing. Once the investigation concludes, the court will schedule a hearing during which the judge will consider the petition you submitted, listen to testimony, and evaluate the senior's competence and ability to care for themselves. The judge will then either grant or deny the guardianship petition.

To serve as a guardian, one must be 18 or older, mentally competent, and, in most cases, free of any criminal record. If you are applying to serve as the senior’s guardian, expect the court to run a criminal background check, review your financial responsibilities, and evaluate any potential conflicts of interest.

What Does a Guardian Do?

Once appointed as a guardian, individuals have a duty of care for their ward, meaning they must put the senior’s interest first. They are also in charge of making decisions for the individual, which may include:

• Deciding how to proceed in response to a diagnosis
• Identifying and choosing the best housing for the senior
• Planning meals or coordinating with a meal delivery service
• Discerning who it’s safe for them to spend unsupervised time
• Selecting leisure activities

The tasks required of a guardian are directly related to the senior’s needs and the areas in which the court finds they lack competence.

Benefits and Drawbacks of Senior Guardianships

While senior guardianship has notable benefits, specifically the protection of vulnerable older adults, it’s a pathway that needs to be carefully selected, as it also has serious drawbacks.

Alternatives to Senior Guardianships

Guardianship requires seniors to give up a significant portion of their freedom and independence, which, while may be necessary, can have considerable drawbacks. To avoid the negative effects of full guardianship on older adults, many states prohibit the use of guardianship until several less-restrictive alternatives have been attempted.

Representative Payee

A representative payee has much less authority than a guardian, and the individual they are standing in for has not been legally declared incompetent. Like a guardian, a representative payee oversees something that belongs to the individual. However, guardians are in charge of almost everything for their wards, while a representative payee is responsible for receiving one specific Social Security or Supplemental Income on the senior’s behalf.

Power of Attorney

One of the most simple alternatives to guardianship is the power of attorney. Guardianship and power of attorney provide seniors with similar levels of supervision. However, with power of attorney, a senior and their family select a person of their choice to serve as the older adult’s decision-making agent. If guardianship is selected, familIes may request a specific guardian, but ultimately the judge decides who serves as guardian. Sometimes families choose to pursue guardianship after their older loved one refuses to sign over their power of attorney.

Standby Guardianship

Some states allow seniors to designate someone as a standby guardian in case they lose the ability to care for themselves. However, traditional guardianship differs from standby guardianship in that the senior must freely consent to the agreement, and the guardianship only takes effect if the senior becomes incapacitated.

Living Trust

Another alternative to guardianship is a trust that benefits the senior and names a trustworthy family, friend, or attorney (or yourself) as the trustee. While the trustee technically owns the transferred property, they are legally obligated to manage the trust assets responsibly for the beneficiary, which in this case, would be the senior. Seniors can also retain some autonomy by listing themselves as co-trustee. For example, you can make sure money is set aside and invested well. Then the senior you’re concerned about can be given an allowance to limit any risky financial behavior.

Is a Guardianship Right for Me?

Pursuing guardianship for someone you care about is almost always a tough decision. Ask yourself the following questions to confirm that guardianship is the right path for the senior in question.

1. What problems will guardianship solve?
2. Can the individual's needs be met by family, friends, or local organizations?
3. Have I considered and exhausted all possible alternatives to guardianship?
4. What does the senior's primary physician think? Do they agree that there is a need for guardianship?
5. Do others who routinely spend time with the senior believe guardianship is necessary?
6. Have I done everything I can to preserve the senior's independence?

To learn more about elder law, be sure to check out our helpful guides:

• Guide to Elder Law Attorneys
• Guide to Wills