Probate court establishes guardianship by appointing a person to make the personal decisions for someone who is unable to do so themselves. Usually a family member will initiate the process by going to the county in which the person needing guardianship resides and filing a petition. After the petition is filed, a physician must perform a medical examination to determine if the person has the mental capacity to act on his or her own behalf, or truly needs a guardian to make decisions for them.
If the physician agrees, then the judge will declare a guardian. The guardian has the same rights, responsibilities and powers over the person as a parent has over a child. Occasionally the court may limit that power and control, but not often. Once a year the guardian checks in with the court and the guardianship is continued.
When more than one person wants to claim guardianship, as often happens in families where the strain of an elder parent’s declining health sets sibling against sibling, the process can get more challenging and requires the assistance of an elder law attorney, mediation, and ultimately the judge weighing on the best situation for the elder parent.
If you have a loved on that you are concerned can no longer make decisions for themselves, guardianship may be the best way to establish control over their future healthcare and finances. While we hope that everyone plans in advance for such a possibility, it is not usually the case. An experienced elder law attorney can help you navigate the waters of guardianship and estate planning.
