Is a Guardian Legally Required for Someone With Advanced Dementia?

3 answers | Last updated: Oct 16, 2016
A fellow caregiver asked...

Is a guardian legally required for someone with advanced dementia?


Expert Answers

Barbara Repa, a Caring.com senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

No law requires that a guardian be appointed for someone with advanced dementia. Guardianships, also called conservatorships, are usually only needed when someone has good evidence that a person's medical care, finances, or other personal matters are being ignored or mismanaged -- or when there are a lot of feuding family members in the picture. And because setting up an adult guardianship -- which involves both filing legal papers and having a hearing before a judge -- can be time-consuming, expensive, and humiliating to the person involved, it should be undertaken only when necessary.

A better option: Determine if the person already has some basic estate planning documents in place that appoint someone responsible for decision making, such as an advance health care directive and power of attorney for finances that cover the management of personal and financial matters. In most cases, that's all that's needed.


Community Answers

A fellow caregiver answered...

I need to respectfully disagree with the other person's advice (as it relates to anyone that has a parent that lives in Florida regarding Florida law), as I've been dealing with these issues since November of 2007. Because my mother was dying from brain cancer that developed because of her prior breast cancer at the very same time my father had his first major Alzheimer's "melt-down" because after 66 years of marriage he realized his wife was dying....I had to Baker Act my father and have him declared mentally incompetent. This is a very expensive process, and a very lengthy process (even though both of my parents' wills and trust documents as as well as Living Wills, Power of Attorney's, etc. all listed me (their daughter) as the person they wanted to handle everything. If anyone ever needs advice (for Florida)...I can provide it having gone through six, yes six legal firms that kept making errors that then made the judge unhappy. My advice is only relevant for Florida....but it's been almost three years and over $110,000. in legal fees to deal with many unplanned aspects of a family member being allowed to be the Plenary Guardian of both person and property, as well as being allowed to be the Trustee of my parents' trusts (even though I was designed as such in all legal documents). My mother passed away in December of 2007 and my father has advanced Alzheimer's, and this has been a very, very rocky and challenging legal road (and my parents total assets were not in excess of a million dollars including their trusts). ALWAYS have a second attorney review ALL of the documents prepared by any estate planning attorney if you want to avoid headaches and lost funds later. Just my opinion and experience.....


Katystoy answered...

I AM SORRY YOU HAD TO GO THROUGH ALL OF THIS, I LOST MY MOTHER AND FATHER 1 1/2 YEARS AGO TO CANCER AND STROKE. MY GRANDMOTHER WHO IS MY LIFE AND RAISED ME SUFFERS FROM DEMENTIA. SHE ALWAYS MADE ME PROMISE TO SEE HER IN THE GROUND. MY MOTHER DID NOT WANT THIS. WITH POWER OF ATTORNY I CAN DO THIS FOR HER. EVERY STATE HAS THERE OWN LAWS AND IT IS FRUSTRATING TO HAVE TO GO BY THEM. I LIVE IN ALASKA WHERE YOUR ELDERLY ARE RESPECTED. BUT IF I WERE NOT THERE SHE WOULD NOT HAVE THE FREEDOM AND THE HELP SHE NEEDS. DON'T EVERY GIVE UP ONE SOMEONE YOU LOVE, THEY ARE THE ONES WHO WILL SUFFER KATY