Guardianship is a legal option that may be available to you if your parent becomes legally incapacitated to the extent that he or she no longer can handle financial affairs or perform basic personal care.
If the court appoints you as the legal guardian of your parent, you will have the legal authority and power to make decisions for him or her. In order to obtain guardianship over your parent, you must prove to the court by clear and convincing evidence that a guardianship is necessary, in that your parent is at significant risk of personal or financial harm.
In order to show that an individual is at significant risk of personal or financial harm you must provide the court with evidence that your parent has a demonstrated inability over time to manage property or financial affairs, or to adequately arrange for basic needs, such as nutrition, housing, and medical care. During guardianship proceedings, the court will determine if your parent is incapacitated, whether a guardian is necessary to handle some or all of your parent’s affairs, and who is the most appropriate guardian for your parent.
In a guardianship case, the court will appoint a neutral third party, also referred to as a guardian ad litem, to evaluate your parent and determine whether he or she is legally incapacitated. The guardian ad litem also will make formal recommendations to the court about the propriety of a guardianship in your parent’s case. While it is common for a person’s guardian to have a full guardianship over all of the person’s affairs, it is also possible to have a limited guardianship.
Regardless of whether or not the guardianship is full or limited, the guardian must report all actions to the court, provide a financial report at least annually, prepare a personal care plan that the court must approve, etc. In short, the court has the final authority and all expenses typically are paid from the incapacitated person’s assets.
Oftentimes a person looks to a guardianship to solve problems; for example, an individual may wish to force a parent to move from the parent’s home to a care facility. Most people are surprised to learn that not even a court can force a person to move from their home.
Guardianships are sometimes necessary, especially to protect a parent from fraudulent and unscrupulous persons who would steal from the incapacitated person. Nonetheless, in most cases a guardianship can and should be avoided. We recommend that the important life-planning documents of durable powers of attorney be put in place before capacity is lost so that a guardianship, and all its attendant costs and expenses, can be avoided through good planning documents.
The experienced Washington elder law attorneys of Elder Law Group PLLC are here to help you determine if a guardianship is truly necessary or if instead, it can be avoided through less restrictive alternatives, such as durable powers of attorney. We know what situations merit a guardianship and what situations do not.
Contact our experienced elder law attorneys at Elder Law Group at 509.468.0551.
