Let’s Talk about Guardianship for Elders


Why do I have to seek guardianship? If I become someone’s guardian, will I be responsible for all of that person’s bills? When does someone need a guardian?  Does a person who is having a guardianship established have to go to court?

If you work with the elderly or their caregivers these types of questions come up as soon as mom or dad gets to be too forgetful or weak for everyday activities of daily living without assistance.

So, let’s talk about basic guardianship, or conservancy, as it is called in some US jurisdictions.

The individual appointed as legal guardian will be fully liable for the health and life of an elderly person. In most guardianship cases, the elderly person is no longer able to make decisions about his or her medical treatment, living conditions, dependents, and financial issues. A court may choose to limit this guardianship to certain areas, however. For example, if an elderly man is able to make decisions about finances but can no longer physically care for himself, the court may limit the guardianship to overseeing the man’s physical needs.

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An elderly guardian is generally appointed once a court determines the elderly person to be incompetent. The specific requirements for incompetency vary from jurisdiction to jurisdiction. However, the general rule for determining incompetency is whether or not the individual can still make informed decisions regarding his or her affairs and he or she can meet his or her financial and physical needs.

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If the elderly individual proves to do otherwise, then he or she is determined to be in need of elderly guardianship. A court can limit an elderly guardianship to certain areas. For example, if an elderly man is able to make decisions about finances but can no longer physically care for himself, the court may limit the guardianship to overseeing the man’s physical needs.

In determining whether the proposed ward is incompetent, the probate court must decide whether the person is “so mentally impaired [as to be] incapable of  taking proper care of the person’s self or property.”  (Ohio Revised Code section 2111.01(D))  The determination whether the proposed ward is incompetent starts with an application for guardianship submitted by the would-be guardian.

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The application must have with it a statement from a health care professional supporting the applicant’s claim that the proposed ward is incompetent.  (In Ohio, there is a form for this medical statement.)  If no health professional will support the applicant’s claim, the probate court won’t even accept the application for guardianship.  If a medical professional won’t support the claim, the probate court won’t bother with it.

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If the would-be guardian submits an application with the necessary medical statement, the probate court will have one of its own investigators check out the claim of incompetence.

As an elder care advocate, I have experienced the process of assigning a guardian.  I have seen how hospitals and estate attorneys have manipulated and coerced the senior citizen to a point where there is such confusion that even the most competent senior can appear confused and disoriented. I believe each potential candidate for guardianship needs a volunteer advocate to help the individual sort through the information in an unbiased and professional manner. I also believe this advocate should be given the right to attend any court appearances with the senior to help support their efforts to make a positive presentation.

          Anonymous

The investigator will meet with the proposed ward and try to determine whether the person is able to make decisions about his or her health care and finances.  In my experience, these investigators are very conscientious, trying very hard to make a fair determination.  The investigator then reports back to the probate court.  If the investigator reports that the proposed ward seems unable to handle his or her own affairs, the guardianship process will continue.  If the investigator reports that the proposed ward seems capable of handling his or her own affairs, the guardianship process ends.

If the investigator reports that the would-be ward seems unable to handle his or her own affairs, the probate court will set a hearing date on the guardianship application at which the proposed ward can oppose the application.

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Usually an immediate member, close relative or friend of the family is appointed as the guardian. The guardian appointed must be a competent person over the age of 18, and without criminal record. If the person whom the court has appointed legal guardian refuses to take the elderly guardianship, the court may appoint a private or public agency, even an attorney, as legal guardian.

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An elderly guardianship can be terminated when the elderly person demonstrates that he or she has regained capacity to make informed and educated decisions. A guardianship may also be modified if a current legal guardian becomes unwilling or is unable to continue to serve as guardian.

The ostensible purpose of guardianship and conservatorship law is to GUARD, CONSERVE and PROTECT incompetent persons from harming themselves or others and to protect the taxpayers against these individuals winding up on the public dole.
Over the years, misuse of guardianship law, at the expense of and to the detriment of the very people the law is supposed to be protecting, has created a gold mine for fiduciaries who have lost their moral compass and are driven by greed. “Guardianizing” a vulnerable person based on false and fraudulent allegations in a petition filed for nefarious purposes, unsupported by evidence and in violation of due process, is becoming increasingly easier as the industry – and the caseload – surges.
Some state statutes have enabled growth of this industry by replacing “incompetent” (the criteria for wardship) with “incapacitated,” thereby lowering the requirement and exposing even persons with minor or temporary physical disabilities to victimization by unscrupulous fiduciaries and the court system which allows them to operate nearly unfettered.

ELAINE RENOIRE, President,  Stop Guardian Abuse.org

When the person’s disease has taken away the decision-making ability and the person has not prepared advance directives appointing someone else to make decisions, the next legal alternative is guardianship.

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About Elder Care Advice blog

Get professional elder care giving advice, advocacy, education and tips for those who care for and about the frail elderly at the ElderCareAdvice blog. We are generously sponsored by CertifiedCare.org. Most posts are written by Cathleen V. Carr, unless attributed otherwise. We welcome relevant submissions. Submit your article and by-line for publishing consideration (no promises!) to Havi at zvardit@yahoo.com, our own editor who will ensure submissions are given the best possible treatment and polish before publication, ensuring a professional level of publication. There is a nominal service fee involved ($45). Allow up to 30 days for publishing.
This entry was posted in Advocacy, Aging, Elder Law and Finances, Government, Questions 4 Dr. CC and tagged , , , , , , , , , . Bookmark the permalink.

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