There comes a time in all of our lives when, sadly, we become unable to make decisions for ourselves or care for ourselves. Typically the responsibility to care for the elderly falls to younger family members, and it can be a very burdensome situation for the caregiver. To make matters even more difficult, the caregiver might not have the authority to make legal or medical decisions on behalf of their loved one. This means you may not be able to access your elderly parent's money to hire caretakers. Or you might not be able to manage their assets or property for their benefit. You might not even have the authority to speak with their doctors to make decisions about their treatment.
The Best Solution is a Power of Attorney and Health Care Directive
How do you prevent this? The easiest route is for the at-risk senior to create a Power of Attorney and an Advanced Health Care Directive when they have the mental capacity to do so. These documents name an agent who will have the authority to make legal and medical decisions on behalf of the principal typically once two doctors determine that the principal can not do so for themselves. In this way, the agent may perform all of those tasks on behalf of the principal without any further legal intervention.
Guardianship Proceedings Are the Only Alternative - and It Is Not Ideal
But what happens if the principal is already unable to care for themselves and they have not previously created a power of attorney or health care directive? Then the only recourse that a caring family member has is to ask the court to establish guardianship over the at-risk adult. This is a full-blown court procedure in which the family member has to formally petition the court to establish guardianship of the person (medical) and property (legal). The process can be complex and requires that the family member notify other interested persons who may object. It also requires that two doctors certify that the individual is incapable of managing their own affairs. Lastly, it takes time because the courts are busy and the petition is subject to the court's schedule. The petitioner will also have to appear in court to plead their position and convince the court that appointing them as the guardian for their loved one is in that person's best interest.
While the court tries to be extremely sensitive to the process of establishing guardianship for an incapacitated individual, it can be a difficult challenge and, at times, humiliating. The saddest part is that the whole process is completely avoidable if the person simply created that Power of Attorney or Advanced Health Care Directive. Each of these documents can be created from start to finish in a matter of a few hours by a competent attorney at a minimal cost. On the other hand, the process of guardianship can takes months at a cost of thousands of dollars.
To assist you, we have prepared our free infographic regarding guardianships shown below. The Tyra Law Firm, LLC can also help you create your estate planning documents or petition for guardianship. If you need assistance, please contact us using the form on this page.
