Guardianship of Elderly Parent: When & How to Get It
Your parent can no longer make safe decisions for themselves. They refuse help, are vulnerable to scams, or are making choices that endanger their health or finances. You've heard about "guardianship" but aren't sure what it involves.
Guardianship is a serious legal step—it removes your parent's legal rights and gives them to you. It's sometimes necessary, but it should always be a last resort.
Courts prefer less restrictive alternatives. Before pursuing guardianship, explore whether power of attorney, representative payee, or other arrangements could work. Guardianship removes your parent's rights—to manage money, choose where to live, make medical decisions, and more.
What Is Guardianship?
Guardianship (called "conservatorship" in some states) is a court process where a judge determines that a person is incapacitated and appoints someone (a guardian) to make decisions on their behalf.
Two Types of Guardianship
| Guardian of the Person | Guardian of the Estate |
|---|---|
| Makes personal and healthcare decisions | Manages financial matters |
| Decides where they live | Pays bills and manages assets |
| Consents to medical treatment | Files taxes |
| Arranges daily care | Makes investment decisions |
You may be appointed as one or both, depending on your parent's needs.
When Is Guardianship Necessary?
Guardianship may be needed when:
- Your parent has dementia or cognitive impairment and can't make safe decisions
- They never signed power of attorney documents (or they're inadequate)
- They're being financially exploited and won't accept help
- They refuse necessary medical care due to lack of capacity
- They're in danger (self-neglect, unsafe living conditions) and refuse intervention
- Someone is using existing POA documents improperly
Alternatives to Consider First
Always try less restrictive options before guardianship:
Power of Attorney
If your parent still has capacity, they can sign POA documents giving you authority to help with finances and healthcare. This is simpler, cheaper, and preserves their autonomy. Learn more about POA →
Representative Payee
Social Security can appoint you as representative payee to manage their Social Security benefits. This doesn't require court involvement.
Joint Accounts
Adding your name to bank accounts can help with bill paying, though this has limitations and risks.
Limited or Supported Decision-Making
Some states offer supported decision-making agreements or limited guardianship that preserve more rights than full guardianship.
The Guardianship Process
Step 1: Consult an Elder Law Attorney
Guardianship law varies by state. An attorney can assess your situation, explain options, and handle the legal process. Many offer free consultations.
Step 2: File a Petition
Your attorney files a petition with the court explaining why guardianship is needed. This includes documentation of your parent's incapacity.
Step 3: Notify Your Parent and Family
Your parent must be notified of the proceedings. Other family members may also need to be notified, depending on state law.
Step 4: Evaluation
The court may appoint an investigator or guardian ad litem to assess the situation. A doctor's evaluation of your parent's capacity is typically required.
Step 5: Court Hearing
A judge reviews the evidence, hears from all parties, and decides whether guardianship is appropriate and who should serve as guardian.
Step 6: Ongoing Responsibilities
If appointed, you'll have ongoing duties: regular reports to the court, annual accountings, and making decisions in your parent's best interest.
Typical Costs
- Attorney fees: $2,000-$10,000+ depending on complexity
- Court filing fees: $100-$400
- Medical evaluation: $300-$1,000
- Court investigator: May be assigned; fees vary
- Annual reporting costs: Ongoing fees if you hire help
What If Family Members Disagree?
Contested guardianships are more expensive and stressful. If siblings or other family members object:
- Try mediation before going to court
- The judge will decide based on your parent's best interests, not family politics
- Consider whether a professional guardian might reduce conflict
- Focus on what's best for your parent, not winning against siblings
Responsibilities of a Guardian
Being a guardian is a serious responsibility:
Guardian of the Person Must:
- Ensure proper care and living arrangements
- Make healthcare decisions
- Visit regularly and stay informed about their condition
- Respect their preferences when possible
- File regular reports with the court
Guardian of the Estate Must:
- Manage finances responsibly
- Pay bills and protect assets
- Keep detailed records of all transactions
- File annual accountings with the court
- Get court approval for major decisions (selling property, etc.)
Guardians are accountable to the court. You'll file regular reports, and the court can remove you if you don't fulfill your duties properly. This protects your parent but also creates ongoing obligations for you.
Alternatives for Specific Situations
For Financial Exploitation
If your parent is being scammed, you may be able to:
- Report to Adult Protective Services
- Contact their bank about suspicious activity
- Seek a protective order
- Work with law enforcement
For Medical Decisions
If your parent can't consent to medical care:
- Healthcare proxy may be sufficient
- Some states have surrogate consent laws
- Emergency treatment doesn't require consent
Finding an Elder Law Attorney
- National Academy of Elder Law Attorneys: naela.org
- Local bar association referrals
- Area Agency on Aging may have recommendations
- Legal aid if you can't afford an attorney
Elder Law Attorney Prep Guide
Questions to ask and documents to bring when consulting with an elder law attorney.
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