When Do I Need to Become a Guardian?

We often get this question from clients. A spouse or an aging parent is starting to show signs of decline and their loved one comes to us wondering whether it is time to apply for guardianship.
If a person has updated financial and health care powers of attorney in place, guardianship may not be necessary.  If a doctor determines that a person is incapacitated, his or her powers of attorneys can be activated, allowing the agent to make financial and health care decisions for the incapacitated person.

If powers of attorney are not in place, a guardianship may be necessary. The probate court will appoint a guardian if it finds beyond a reasonable doubt that a person is unable to provide for his or her basic needs (food, shelter, clothing, health care, safety, financial affairs).  The probate court will only grant a petition for guardianship if it has specific examples of the person’s inability to provide for his or her basic needs within the last 6 months and at least one example that occurred within 20 days of the date the petition for guardianship was filed. Because a guardianship involves taking away a person’s right to make his or her own decisions, the court is very particular about having specific examples (2 weeks ago my mother wandered away from home, got lost, and the police had to find her and bring her home) rather than general descriptions (my mother is often confused).

If you think someone you care about may need a guardian, we recommend keeping a log that includes detailed descriptions of declining behavior along with the dates that you observed the behaviors.  The log can then be used to determine whether it is likely that you will be able to satisfy the legal requirements for a guardianship and the information can be included in the petition for guardianship if one is ultimately filed.

To discuss details of becoming a legal guardian, please feel free to contact our estate planning attorneys.

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