As much as we would prefer not to think about it, as we age, so do our parents. For an adult child, watching a parent succumb to the natural aging process can be difficult. If the parent begins to show signs of having Alzheimer’s, or another age-related dementia disease, it can be even harder to handle. One of the most difficult decisions you will have to make if you find yourself in this position is the decision to seek guardianship over a parent. If, however, it begins to become clear that your parent cannot safely care for herself/himself, failing to step in and do something could result in your parent being injured or victimized. How do you know when the situation is serious enough that guardianship is the best option?
What Is Guardianship?
Guardianship is a legal relationship that gives one person (the “Guardian”) the legal authority to make decisions for, or act on behalf of, another person (the “ward”) based on the disability or incapacity of the Ward. In the State of North Dakota, there are several different types of guardianships, including:
- General Guardian — is responsible for decisions in ALL aspects of the ward’s life. The guardian assures that the ward has a place to live, food to eat, proper clothing, and other necessities, as well as medical treatment, schooling, vocational opportunities, and other needed services.
- Limited Guardian — has the authority to make decisions ONLY in specific areas of the ward’s life, such as financial or residential.
- Emergency or Temporary Guardian — appointed in situations where immediate action is required to prevent harm to the ward. An emergency guardianship CANNOT be in effect longer than 90 days and has ONLY the authority identified by the court at the time of the appointment.
- Testamentary Guardian — is established when a guardian spouse or guardian parent of a person determined to be incapacitated appoints, by will, a successor guardian for that person.
- Conservator — appointed to manage the estate and finances of a ward.
Is Guardianship the Best Option?
Guardianship is a legal process that requires a prospective Guardian to file a petition with the appropriate court. Ultimately, the court will decide, at a hearing, if a Guardian is needed and, if so, which type and who should be appointed. The court is legally required to use the “least restrictive means” when making its decision. This means that the court will consider other options first. Specifically, the court will consider whether the Ward would be safe if something less than a full guardianship was in place. For example, would requiring a home health aid be sufficient to keep the Ward safe? Before you decide to pursue guardianship, you should consider the same questions. Are you, or another family member, available to help watch over the proposed Ward on a regular basis? If not, can a home health care worker be retained to help? Would having someone at the house on a regular basis resolve your concerns? Likewise, is there a financial power of attorney in effect that could be used in lieu of appointing a Guardian or Conservator.
Guardianship is considered the option of last resort because of extent of the authority is gives to a Guardian and, more importantly, the authority it takes away from the Ward. Once a Ward has been appointed, the Ward’s autonomy is basically gone – at least in the areas covered by the guardianship. It is for this reason that guardianship is considered the option of last resort by the courts. It is also why you should always consult with an experienced estate planning attorney about the situation first before you commit to pursuing a guardianship. Your attorney can discuss any other potential options with you and help you rule those options out, if warranted, so you know that going forward with your petition for guardianship is indeed the best option.
For additional information, please join us for an upcoming FREE seminar. If you have additional question or concerns regarding guardianship, contact the experienced North Dakota and Minnesota estate planning attorneys at German Law by calling 701-738-0060 to schedule an appointment.