Are you an adult child who is having to watch your parent’s physical and/or mental health deteriorate? Are you concerned about your parent’s physical safety and/or ability to handle finances as a result of that deterioration? If so, you are probably struggling with a solution. Like most people in your position, the idea of taking away your parent’s independence by pursuing guardianship may not sit well with you. On the other hand, doing nothing could result in serious harm to your parent or to your parent becoming a victim of someone who preys on the elderly and disabled. The Bowie elder law attorneys at Sinclair Prosser Gasior help you to learn more about guardianship.
What Is Guardianship?
Guardianship is a legal relationship that gives one person (the “Guardian”) the legal authority to make decisions for, or act on behalf of, another person (the “alleged disabled individual”) based on the disability or incapacity of the Ward.
- Guardian of the person. A guardian of the person can make life decisions for the alleged disabled individual like health care, education, and welfare decisions.
- Guardian of the property. A guardian of the property handles decisions about the alleged disabled person’s money, investments and savings as directed by a Judge. A guardian of the property must file an annual report about the property.
- Guardian of the person and property. This kind of guardian has responsibility of both life decision and the alleged disabled individual’s property.
Is Guardianship the Best Option?
When you first consider guardianship, it may seem like a cruel route to take considering the limitations it places on your parent; however, if your parent is truly unable to care for herself/himself and/or to manage finances, failing to seek guardianship could place your parent in danger. Guardianship is a legal process that requires a prospective Guardian to file a petition with the appropriate court. Ultimately, the court will decide, at a hearing, if a Guardian is needed and, if so, which type and who should be appointed. The court is legally required to use the “least restrictive means” when making its decision. This means that the court will consider other options first.
Specifically, the court will consider whether the alleged disabled person would be safe if something less than a full guardianship were in place. For example, would requiring a home health aide be sufficient to keep the alleged disabled person safe? Before you decide to pursue guardianship, you should consider the same questions. Are you, or another family member, available to help watch over your loved one on a regular basis? If not, can a home health care worker be retained to help? Would having someone at the house on a regular basis resolve your concerns?
Likewise, is there a financial power of attorney in effect that could be used in lieu of appointing a Guardian. Guardianship is considered the option of last resort because of the extent of the authority it gives to a Guardian and, more importantly, the authority it takes away from the alleged disabled person. Once a guardian has been appointed, the alleged disabled person’s autonomy is basically gone – at least in the areas covered by the guardianship. It is for this reason that guardianship is considered the option of last resort by the courts. It is also why you should always consult with an experienced estate planning attorney about the situation first before you commit to pursuing a guardianship.
Your attorney can discuss any other potential options with you and help you rule those options out, if warranted, so you know that going forward with your petition for guardianship is indeed the best option.
Contact a Bowie Elder Law Attorney
For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about guardianship, contact an experienced Bowie elder law attorney at Sinclair Prosser Gasior by calling (410) 573-4818 to schedule an appointment.