If you have an elderly family member or loved one who appears to be having trouble making day to day decisions, you may wish to intervene and help. As a person ages, both physical and mental disabilities can impact the ability to make good decisions, putting him or her at risk for a number of things. Day to day activities and decision making can be affected, which can result in accidents or things such as forgetting to eat, bathe or take medication when required. If you want to help, petitioning to become his or her guardian may be the answer.

Many people assume that simply because someone is their parent, child, spouse or other relative, that they have the legal authority to make decisions on behalf of that person. In most cases, that is not the case. Although state laws will vary to some extent, most states require you to obtain the legal authority from a court before you can step in and make those decisions. Unless the person has previously given you legal authority, such as by executing an enforceable durable power of attorney, you may need to become his or her guardian.

Becoming a guardian typically starts with filing a petition in the appropriate court. After notice and a hearing, if the court is satisfied that your loved one or family member is need of a guardian, and that you qualify for the position, you will be appointed. Exactly what authority you have at that point will differ from state to state; however, in most states you will be able to make day to day decisions regarding things such as where the person lives and what doctor he or she uses. Often, in order to have authority over the person’s finances as well, you will need to also become a conservator. This can often be done at the same time as the guardianship petition or through a similar proceeding.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

Tags: Elder Law, guardian, Guardianship

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