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Nolan Elder Law and Estate Planning, LLC Blog

Tuesday, July 11, 2017

What Is Guardianship And How Can It Help My Parent?

All of us hope to age gracefully and live long, healthy lives, but unfortunately not everyone is granted such a happy fate.  Most of us will have family members who lose abilities they used to have as they age, and in some cases that decline will leave our loved ones vulnerable unable to take care of their own affairs.  Guardianships for seniors are tools that can be used to protect a person whose condition has left him or her “incapacitated.”

In Alabama, a person is legally incapacitated if they lack the ability to understand important decisions that must be made, if they are unable to make those decisions, or if they are unable to communicate the decisions that they have made.  Common reasons a person might be unable to do these things include:

  • Mental illness or deficiency
  • Physical illness or disability
  • Mental or physical symptoms of aging
  • Chronic drug use or intoxication

For these people, courts have the authority to appoint a guardian who will become legally responsible for looking after the incapacitated person’s interests in much the same way as a parent looks after his or her child.

If you believe someone you care about may be incapacitated and would like to be his or her guardian, you will first need to file a petition in court to have that person declared incapacitated.  He or she will have to be evaluated to determine whether or not they really are incapacitated; this process will include an examination by a doctor or another professional qualified to make the determination, as well as an interview with the person in question as well as his or her potential guardian.

After conducting this investigation, the court will hold a hearing to decide if the person in question qualifies as “incapacitated.”  If the court decides a person is incapacitated, it must then decide whether or not appointing a guardian “is necessary or desirable as a means of providing continuing care and supervision” for that person.  When the court answers “yes” to both of these questions, it can appoint a guardian.

When selecting a person to be guardian, the court is required to move in order through a list of preferred guardians, although it can skip over someone if there is a good reason to do so.  Adult children of incapacitated persons are fourth in priority on that list, behind:

  1. a person chosen by the incapacitated person before he or she became incapacitated to hold their power of attorney;
  2. the incapacitated person’s spouse; and
  3. a person nominated by the incapacitated person’s spouse in a will or other signed and witnessed document.

A court-appointed guardian is responsible for their ward’s health, support, education, and maintenance, and is generally given the same rights as a parent to ensure that they can meet their responsibilities in those areas.  That includes the right to decide where the ward will live; the right to receive, save, and spend money on the ward’s behalf; and the right to consent to medical or other professional care for the ward.

In short, a guardian is a responsible adult who is appointed by the court to look after the interests of another adult who is no longer able to responsibly attend to his or her own interests.  

Guardianship can be a very powerful tool for protecting our aging parents, but becoming a guardian can sometimes be a tricky process.  If you are interested in becoming a guardian for a family member or family friend, please contact us today for a consultation. Our experienced estate planning lawyers will walk you through all of your options.

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