Legal Guardianship:

By merretmann on June 13, 2012

Legal Guardianship Paperwork

A question recently came in from the caregiver?s community and I thought it would make an excellent blog post. First, I have to say?I am not an attorney. ?I am a Gerontologist who has gathered an array of helpful documents and ?information through my years of experience helping families. I always suggest that you go to a professional source if you are considering taking legal action in any form. That being said, there is good information here to give you an overview of the issues around Legal Guardianship and what your other options may be?

Here is the question proposed and my answer, if you have additional thoughts I would enjoy it if you wrote them in the comment section below.

Question:

?What do you legally need to do to cover your bases if your husband has Alzheimer?s? Should you obtain Legal Guardianship? And how and where do you go, if you have limited funds?? From: Concerned Caregiver

Answer:

If a person cannot make decisions for him or herself, they need to obtain legal guardianship. The law assumes that each of us possess the ability to decide on matters concerning ourselves (be it property or person, to be exact). When this fundamental assumption is no longer true because of a decline in mental or physical function and rational decision-making can no longer be trusted, there are two directions to empower someone else to act on their behalf. (Read this article) ? The two most prominent options options in this situation are: Durable Power of Attorney and a Legal Guardianship. Now let?s discuss each of these options?

Durable Power of Attorney

Durable Power of Attorney definitely preferable. It takes pro-active planning and action but will save a tremendous amount of time, hassle and money in the long run. The person that is losing their mental capacity, or has some insight that this may be happening, decides early on to appoint a ?substitute? decision maker; someone who will act on their behalf if they become incapacitated. With a durable power of attorney, someone is appointed to manage financial affairs, make health care decisions, or conduct other business during the time that the person is unable to do so for them selves. Honestly we should all have one! Here is an excellent resource to gain more knowledge around this subject. Alzheimer?s Advisor: A Caregiver?s Guide to Dealing with the Tough Legal and Practical Issues.

Legal Guardianship or Conservator

Legal Guardianship comes to light if a Durable Power of Attorney was not created before the person became incapacitated.? A Legal Guardianship is a complicated matter. A petition for Guardianship (Or ?Conservator? in some states) may be filed with the court.

The process to attain Legal Guardianship looks something like this:

• Just because it is obvious to you that their ability to speak with sound mind for themselves has been diminished, you must prove it.
• A diagnosis may not be sufficient, often ?compelling? evidence that the person can not take care of themselves will need to be provided.
• The court must decide that a guardian is completely necessary and if in fact you are the right person.

In some cases the court will assign a ?limited guardianship? to care for only certain tasks for a person.On other occasions two different people will be appointed to care for one person, dividing the care for the person themselves and their estate. The time and monetary fuel for the Legal Guardianship process to take place can often be substantial. Attorney?s set their own prices so it pays to hunt around. In some states you may get help from a court appointed representative. ? Read more here about the financial break down and how much a Legal Guardianship can cost.

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