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Is Guardianship the Answer? Part II – Elderly with Limitations

Old age brings many casualties – reason, clarity, sanity, and independence, among others.

When you observe your elderly loved one struggling to care for their needs, health, or finances you want to help. But how?

You need to ask about, or look for, any estate planning documents they may have. This will allow you to determine if they have already appointed a Power of Attorney and/or HealthCare Surrogate to act on their behalf.

But if this has not been done, and the individual no longer has the capacity to make such a decision, guardianship may be the answer.

A Petition to Determine Incapacity and a Petition for Appointment of Guardian needs to be filed in the County where the individual lives. The Court will appoint an attorney to represent the individual during the process as well as an examining committee of three professionals who will examine the individual and submit a report of their findings as to competency. A hearing will be scheduled wherein a Judge will determine if there should be an order determining the individual be incompetent and if a guardian should be appointed. In the affirmative, the Judge will also determine who would be best suited as the guardian, which in many cases will be the petitioner, and how much authority the guardian should have depending on the needs of the individual.

The Judge may grant a plenary guardianship which awards the guardian all legal rights and powers of the individual who is determined to be incapacitated. Or the Judge may issue an order listing the following rights and powers and whether they are granted to the guardian or the individual:

to personally apply for government benefits

to contract

to sue and defend lawsuits

to manage property or to make any gift or disposition of property

to consent to medical and mental health treatment

to determine his residency

to make decisions about his social environment or other social aspects of his life

to vote

Our elderly loved ones are important to us and a guardianship may help secure their care and safety when they no longer can on their own.

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