When we think of guardianship we often imagine a child (the ward) moving into the care of a friend or family member (the guardian). But the process can also be used to obtain legal rights over elderly or aging adults who are losing their mental and physical capacities. For the most part the process is similar, but there are five key differences we’d like to discuss when considering guardianship of an elderly parent. You want to carefully consider all aspects of the process to make sure it’s the best course of action for you and your aging loved ones.
If you have a parent who you think is in need of a guardianship — they don’t have the ability to care for themselves, perform tasks in their daily life, or make rational decisions — you’ll need to obtain a physician’s certificate or doctor’s letter. This form is a statewide document filled out by a doctor that attests to the patient’s mental acuity and physical ability.
Not everyone submits to the evaluation willingly. The elderly patient may have something like paranoia or Alzheimer’s and will resist meeting with the doctor. You will still file the application for guardianship (see number 2) in a probate court, but as part of that process will also ask the court to order the elderly person to get the examination. The court can order your loved one to submit to an independent medical exam and if so ordered, will appoint a physical to do a determination.
Case Study: I have a friend who just moved to St. Louis to take care of his aging mother with Alzheimer’s who is rapidly losing her ability to take care of herself. She still believes she is capable of driving, but it’s clear that she is in no condition to operate a vehicle safely. This would be the ideal situation to seek guardianship.
Filing the application in a probate court for guardianship is a pretty standard procedure. If possible, you want to have the medical examination before you file the application, but if the elderly person refuses then you can always ask the court to order one later. Just because the application has been filed does not automatically make you a guardian. The court will then go through it’s standard guardianship proceedings to determine whether you’re fit to be guardian. They’ll check your criminal background, financial responsibility, or whether you have any other obvious conflict of interest.
When you file the application for guardianship you will also notify the proposed ward of the application — this is not only a courtesy but a requirement. You will also have to notify any family members or anyone else with the legal right to know about the petition of guardianship. The family members you have to notify are laid out in the estate code, but it also depends on which family members are still living and can easily be contacted.
Are there things that can help your parents that if put in place are less burdensome than a guardianship? Absolutely. Two common alternatives are:
Naming someone as your agent under a Power of Attorney is a private decision that does not involve a court. They are less costly than the guardianship process and they can be used by the elderly person to have more control over who takes care of them. These are by no means the only less restrictive alternatives to guardianship as there are a variety of supports and services that may be beneficial to your loved one. Of course, alternatives may have certain drawbacks that do not work for your particular situation.
If you have evaluated alternatives and have found them to not be feasible then it may very well be that guardianship is the best solution for your loved one.
If you file for guardianship, no matter what, the court has to appoint an attorney to represent your loved one, the proposed ward. Essentially the Attorney Ad Litem represents the proposed ward as if they were hired to do so, even though they were appointed by the court. Their job is to do what the proposed ward, their client, WANTS.
If the court, or the attorney ad litem, believes more investigation is necessary, a Guardian Ad Litem may also be appointed . This person is not the guardian (the language can be confusing) but rather a court-appointed person who acts as the court’s eyes and ears. They are involved in the process and their job is not to do what the proposed ward wants, but rather to determine and make recommendations on what is in the ward’s BEST INTEREST..
We like to borrow an analogy from a respected colleague — you can think of the difference between an Attorney Ad Litem and a Guardian Ad Litem like this: as a lawyer (Attorney Ad Litem) it’s our job to advise our clients and then navigate them through the laws based on their informed decisions. An investigator (Guardian Ad Litem) tells the court what they believe is in the proposed ward’s best interest, whether it’s what the proposed ward wants to do or not. Want to run across a busy highway? The Attorney Ad Litem will stop the cars to get you across. The Guardian Ad Litem won’t let you cross… it’s a busy highway!
Hopefully these 5 points will help you in understanding some of the terminology and the cast of characters that you will encounter when seeking guardianship over a loved one.
If you have questions about the guardianship process and whether it is right for you we recommend that you consult an experienced guardianship attorney. At Romano & Sumner, we have a great deal of experience with the guardianship process. If you have any questions or would like to make an appointment to talk with us, please don’t hesitate to contact us today.
Romano & Sumner – Sugar Land, TX Attorneys