Adult Legal Guardianship - What It Is & Why It's Needed

An older gentleman and a younger man sit at a table looking at a tablet while a woman stands behind them with a phone in her hand

It's a difficult situation when a loved one can no longer take care of themselves and their needs, but legal guardianship can help. Legal guardianship is a legal process where a loved one petitions the court for permission to act on another person's behalf, usually a loved one who cannot make decisions or care for themselves on their own. This can be a minor, or an adult who is elderly, infirm, or incapacitated. The legal guardianship process will name a third party caregiver for the person - also called a ward - to ensure that the person's financial and physical needs are met. If you need to establish guardianship for an adult or minor, your attorney through our Legal protection Subscription Plans for Individuals & Families will be able to help. Learn more about all the benefits of membership, and read on for an overview of guardianship.

Laws governing guardianship vary by state, but, in general, the person petitioning for adult guardianship for a loved one chooses the type and kind of oversight needed, including financial decisions, medical decisions, personal decisions, or all of the above. When the person placed under guardianship is under the age of 18, there is generally a natural end date for this type of guardianship; however, when the ward is an adult, the oversight may continue for the rest of a person's life.

Adult guardianship is a way to protect elderly or incapacitated adults who may not be making sound decisions, such as financial decisions or dangerous activities. The legal process for petitioning for adult guardianship begins by filing paperwork with the court that shows the need for someone to have a loved one make important legal decisions about their life, health, and finances. Showing the necessity for guardianship when the person in question is a minor is typically easier to determine. These reasons include:

• A minor has lost both parents

• One or both parents are ill or otherwise cannot provide care

• One or both parents are incarcerated

• One or both parents are deployed with the military

• One or both parents cannot care for the child for another reason

When the person needing guardianship is a legal adult, the process can be a bit more difficult and take considerably more time. Emergency guardianship for an adult can be put in place quickly if you can prove the person needs immediate medical help that they are not seeking themselves, in cases of exploitation or abuse, or if you can document another pressing need for guardianship. Your attorney can review your documentation and give advice regarding your specific case to help you determine whether the courts are likely to grant emergency guardianship based on the facts you provide. Emergency guardianship is generally only granted in extreme cases where the person in question is unable to care for themselves and are in extreme and immediate danger and when there are no alternatives to alleviate the situation.

The legal process for granting adult guardianship will name a guardian - sometimes called a conservator - and this person will be responsible for overseeing the person's personal, medical, and/or financial affairs and decisions. In some cases, more than one person is named as a guardian, and the person chosen for this responsibility should be taken very seriously, as this person will be ensuring the person:

• Remains safe from fraud, abuse, and neglect

• Maintains a high quality of life

• Is protected from exploitation, financial or otherwise

• Receives needed medical care and treatments
  

Your loved one's specific situation may allow for alternatives to adult guardianship, including:

• Financial Power of Attorney

• Medical Power of Attorney

• Trusts and Living Wills

• Other community-based solutions
  

Guardianship cases are generally filed in county probate courts, and your lawyer will be able to advise you on the appropriate venue for filing. This is typically the county and state where the person currently lives, regardless of where the potential caregiver currently resides or where the ward will reside if and when guardianship is granted.

Some guardianship cases require a court appearance, but the process varies from state-to-state and even between counties in the same state. Generally, there will be a number of forms and documents to fill out, sign, and file with the appropriate court. This will include information about the ward, about the caregiver, about the ward's condition and medical history, and possibly, other steps that have been taken to alleviate the situation prior to seeking adult guardianship. The petitioner for guardianship can expect to answer a number of questions explaining the need for guardianship, and these may include information about the person(s) who will be guardians and medical information about your loved one's current condition demonstrating the need for a guardian, among other information and documentation, depending on your specific case and the laws of the court where you are filing.

It isn't always possible to restore the rights of a person after they have been placed in a guardianship, as most guardianships for adults are put in place due to debilitating conditions or progressive diseases such as Alzheimer's or dementia. In many cases, particularly in cases of elderly wards, the guardianship ends when the ward passes away. However, there have been cases of wards who recovered from the situations or conditions that required the guardianship, and their rights can be restored once they are again capable of caring for themselves. The guardianship system has protocols in place to check on the progress to review and assess progress and stability, to determine if the guardian is still needed or if the ward's interests and needs are being met.

Some states have annual check-ins and you will want to keep records of expenses and receipts of what is spent from the ward's accounts.

If your loved one needs assistance managing the tasks of everyday for their own health and safety, seeking guardianship may be a solution. It is important that you consult with a qualified, dedicated elder law attorney to explore all possible solutions for your situation, and our network of attorneys through our Legal Protection Subscription Plans for Individuals & Families lets you speak with an experienced attorney for just one low, monthly fee. Learn more about the benefits of membership or sign up today!

Can A Will Be Changed With A Power of Attorney?

An older couple sits on a concrete bench looking at a statue with a cloudy sky in the background.

A Power of Attorney is an important legal document that allows someone of your choosing to make decisions on your behalf if you should ever become unable to do so yourself. The type of decisions can be financial, health care related, regarding your business affairs, and more. But could someone with power of Attorney change your will? If you need legal advice regarding your estate planning or wish to have your estate planning documents - including power of attorney, living will, last will and testament, or a trust - created for you, members of our Legal Protection Subscription Plans for Individuals & Families can get these important documents created at no additional fee. Learn more about this benefit and read on for a brief overview of Power of Attorney.

When you are creating your estate planning documents, you have the option of creating a Power of Attorney. This is a document that gives someone you choose the authority to make decisions for you if you should become incapacitated or otherwise unable to make those decisions yourself. The person you choose is known as your "agent" or "attorney-in-fact," and you can give this person as much or as little power as you choose. You can give them authority over just your finances or just medical decisions, or both.

A Power of Attorney can be either "durable" or "non-durable," and the difference comes down to when your agent has power of attorney. A durable POA stays in effect if you become incapacitated while a non-durable POA is only valid while you're competent. A "Springing" power of attorney only becomes valid upon your inability to make decisions for yourself, for example, if you are incapacitated or gravely ill.

Your will is a very important document, as it makes your wishes known before you are sick or pass away, and directs what happens to your assets after you die. A Living Will - also called an Advanced Directive - allows you to make decisions about your end-of-life care in advance, in case you are unable to do so later.

You need a will created to take care of family, children, loved ones, pets, and assets when you pass away, and a Power of Attorney is an important position that gives someone power to make decisions for you while you are still alive, whereas a will only becomes valid after you die.

One question people often have is whether or not a person with power of Attorney can make changes to a will, and the short answer is no. However, a person with Power of Attorney can still affect an Estate plan, in that someone with financial Power of Attorney will have the ability to make financial decisions, such as managing bank accounts, paying bills, managing investments, and attending to debts.

Importantly, Power of Attorney is revocable, which means that you can cancel or change it at any time, and you should consider updating your Power of Attorney on a regular basis so that it reflects your current wishes and/or circumstances. Examples might be if your marital status changes or the person you've appointed as your agent passes away or moves far away.

Getting advice from an experienced, qualified estate planning attorney is always a great idea when you're thinking about any Power of Attorney, as you will be better able to understand the law, protect your rights, and make sure that all your documents are in order. An estate planning attorney can help you with any questions you might have about your Power of Attorney as well as help you prepare and create your comprehensive estate plan that will address your unique situation and goals. Learn more about getting your will completed at no additional charge when you're a member of our Legal Protection Subscription Plans, or sign up today!