Watching an elderly loved one succumb to physical and/or mental deterioration can be heart-breaking. At some point, it may become clear that your loved one cannot safely care for himself/herself. The idea of petitioning for guardianship, however, bothers you because it feels like you are taking away your loved one’s independence. To help put your mind at ease, a Fargo elder law attorney at German Law Group explains how a senior may actually benefit from a guardianship.
What Is an Adult Guardianship/Conservatorship?
Guardianship/conservatorship is a legal relationship, established through a court process, whereby a responsible adult or organization is appointed to care for an incapacitated adult. In North Dakota, the law considers an adult to be incapacitated if he or she is impaired by reason of mental illness or deficiency, physical illness or disability, or chemical dependency to the extent that the person lacks capacity to make or communicate responsible decisions concerning that person’s matters of residence, education, medical treatment, legal affairs, vocation, finance, or other matters, or which incapacity endangers the person’s health or safety.
In North Dakota, a Guardian is someone who may make personal decisions for the incapacitated person whereas a Conservator is someone who has been appointed to manage the estate and the finances of the incapacitated person.
How Do I Know If an Elderly Loved One Needs a Guardian or Conservator?
Deciding to petition for guardianship and/or conservatorship over a senior is a highly personal decision that must be made based on the unique set of circumstances in which you find your loved one. It may help though to consider what the American Bar Association (ABA) has said about the subject. According to the ABA, a senior may need a guardian:
- When they can no longer manage their affairs because of serious incapacity, and
- No other voluntary arrangements for decision making and management have been set up ahead of time, or if they have been set up, they are not working well, and
- Serious harm will come to the individual if no legally authorized decision maker is appointed.
The ABA goes on to say “A decision to seek guardianship (or conservatorship) should never be based on stereotypical notions of old age or handicaps. A person has the right to make foolish or risky decisions. These decisions by themselves do not mean that the person lacks capacity. A competent person chooses to run risks. An incompetent person runs risks not by choice, but by happenstance.”
Benefits of Guardianship/Conservatorship
When the prospect of pursuing guardianship/conservatorship comes up, you may hesitate to move forward because it feels as though you taking away your loved one’s autonomy. The reality though is that failing to move forward could leave your loved one vulnerable to serious injury, elder abuse, or victimization by those who prey on the elderly. Having a guardian/conservator can actually benefit a senior in a number of ways, such as:
- Other members of the family know that someone is dedicated and devoted to caring for their family member.
- You have clearly established legal authority to interact with third parties, such as a long-term care facility, physicians, government agencies, and even law enforcement officers if necessary.
- Someone has the authority to receive income and benefits and pay bills
- A process is in place for major decision making including long term care and residence.
- The legal ability to consent to medical treatment is in place.
- Assets are protected and managed properly.
Instead of thinking about guardianship/conservatorship as something detrimental to your elderly loved one, try to think of it as something beneficial to everyone involved.
Contact a Fargo Elder Law Attorney
Please join us for an upcoming FREE seminar. If you have additional questions about guardianship, or you believe you need to petition for guardianship over an older loved one, contact a Fargo elder law attorney at German Law Group by calling 701-738-0060 to schedule an appointment.