Can a son keep me from being appointed as guardian to their father?

1 answer | Last updated: Sep 28, 2016
Cadofe asked...

I am caring for an 88 year old gentleman. I am not a family member but have know the man for almost 18 years. I am a former girlfriend of the youngest son. He asked to me to come and live with his dad as caregiver after Steve fell several months ago and we discovered someone was coming into his home and stealing him blind. I get paid 300 per month + room and board for myself and my son. We have durable POA but we discovered they may not be legal as they were done after Steve's diagnosis of moderate Alzheimers. There is a last will that was notarized a year ago before his diagnosis leaving his entire estate to the youngest son who is the one who hired me. The oldest son was left nothing.

This past week the oldest son came into town from out of state said he was taking his dad to dinner but instead took him to the bank and got Steve to allow his name to be added to all of the bank accounts. I found out from the youngest son who bailed out on protecting his dad that it was happening and was able to get to the bank and get the account blocked so the oldest son could not take any money but also meaning that Steve cant access his money either.

The youngest son and I have hired an attorney to file guardianship paperwork since I do all of the daily care and am the one who has been dealing with everything for almost 7 months now. The oldest son knows we have durable POA but has not been notified about the guardianship yet. It was mentioned to him and he went almost ballistic about allowing anyone to have full powers other than him. he has already started removing things from the home that he wants and has said he will be back in a few months to take some of the more valuable items as well.

The oldest son refuses to make any extra effort to stay in touch. He has only attempted three times in 6 months to contact his dad. One was a card that just said "hope you are feeling well", one 10 minute visit to tell his dad he was taking him to dinner then he left, then the "dinner" that had him taking his dad to the bank to gain control of the finances.

I am afraid that as an "outsider" to the family and trying to stand between the sons to protect the dad may get me in big trouble.

Can the oldest son keep me from being appointed guardian or anyone for that matter? He has much more money and can out spend me in the effort.

Expert Answers

Barbara Repa, a 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.

As the attorney you hired might have explained, a judge will decide at a hearing"”usually held in open court"”whether a guardian is required for a person, and also who would be the best person for the job. Before the hearing, family members"”including the oldest son"”will be sent a formal notice that the hearing will be taking place. All those noticed are free to object to any particular person being appointed.

Given the history in the situation you describe, it seems likely"”although not certain"”that the older son may object. In such cases, the judge will have to weigh all the information and make a decision based on the best interests of the person who needs care.

At the hearing, it is also likely that you and the younger son will also have opportunities to testify or present evidence about who you feel should be the best guardian"”and why. If you are set on being the guardian, you can bolster your case by doing a bit of preparation: keeping notes about the man's condition and need for help and how and why you may be the best person to provide it. As you've already done when you wrote this question, it may also be useful for you to keep track of the specifics of the older son's contact with his dad.

One additional thought, because you mentioned your own discomfort as an "outsider" who seems to be becoming involved in another family's drama: It is also possible for the court to appoint a person who has been trained and certified as a guardian to do the job. In some cases, this flies in the face of family members' wishes, because that person will be getting intimate access to knowledge of finances and lifestyle and such.

But in some families, especially where the siblings are at odds over how to handle the situation, it can be a real godsend to have an unrelated person step in and take over the necessary tasks.