Are guardians required by law for mentally incompetent elders?

6 answers | Last updated: Nov 29, 2016
Jpp asked...

Does the law require a guardian to be appointed for an elderly person who can't make decisions, or is mentally incompetent? For example, because of Alzheimer's disease -- even if medical, financial, and other needs are being met satisfactorily by a family member, is a mentally incompetent elder legally required to have a guardian?


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.

Here's some unexpected legal advice: If it ain't broke, don't fix it.

An adult guardianship in which a person is appointed to make major financial, legal, and medical decisions for another person, is also more commonly called a conservatorship. And while it provides a way for others to step in and act for a confused and unguided older person, it is a rather worky legal proceeding, to be undertaken only when necessary.

There is no law that requires conservatorships for elderly people; they usually come about because someone has good evidence that a person's medical care, finances, or other personal matters are being ignored or mismanaged.

To get a conservatorship in place, someone must first file legal papers describing the elder's physical and mental condition and detailing his or her inability to make decisions. This alone can be jarring and humiliating for those concerned -- and can stir up other difficult emotions, particularly if family members disagree about the need for the procedure. Then a hearing is held before a judge, who will ultimately make the decision, although the elderly person is allowed to challenge it.

If the person already has some basic estate planning documents in place, such as an advance healthcare directive and power of attorney for finances, that cover managing personal and financial matter, then a conservatorship is probably not necessary. Nor is one likely to be needed if there are no feuding family members involved and, as in the enviable scene you describe, "needs are being met satisfactorily."

Community Answers

The caregiver's voice answered...

I agree with Barbara's comments above.

HOWEVER, two examples of where guardianship/conservatorship might be necessary are:

ONE, when your mentally incompetent loved one gets delusional and insists on the world being his/her way and you need legal recourse to protect him/her for his/her own good.

TWO, when your sibling relationships are contentious and you, as the primary caregiver, want court oversight and legal protection from potential lawsuits at a later date.

For both of these reasons, after my husband and I moved my father into our California home from his Wisconsin home, I sought the added protection of a voluntary conservatorship over my father's health care and estate.

Sad and broken answered...

I have a guardianship for my husband. Unfortunately, we did not have power of attorney drawn up when we first had our wills done in the late 60's. My husband was diagnosed with schizophrena in the 70's and went on spending sprees of buying tools, $1,000.00 air compressor, welder at Sears, buying junk cars to fix up, to wanting to buy a junk yard, to actually buying a giantic printing press and all the paper rolls, and ink to go with it and hauling it down from Columbus, Oh to Cinti, to our garage. His mind just wasn't right. He got depressed and didn't want to go to work, but took his vacation check and purchased 2 (two) new toyato trucks and later a brand new fold down camper. He was causing us to go bankrupt. All thru the 70's he was in and out of the mental hospital and into the 80's, till finally in 1989 I had to go for guardianship, BUT not without his sister fighting me in court. What a mess! that lasted for a full year. In order for me to drop the guardianship his sister got my husband to file for divorce and guess what my lawyer told me not to back down, that I had had enough. So, before it was all over with I had 3 (three court cases going at the same time. Guardianship, divorce and hit and battery. If we weren't going for one of them, it was the other one. All along my sister-in-law had taken my husband out of the hospital and had him living with her in Ky. So, every time there was a hearing she would have to bring him back to cinti for Paducak for the hearing. But I never had to show in court, so I didn't. In order for me to drop all cases my sister-in-law had the cops to come to my house and pick up the brand new trucks and they put into storage. Took money out of our checking acc. and left me with nothing. Changed the name on our utilies, phone, garage, elec and I had no money. Everything dropped because my husband dropped all the charges while attending the divorce hearing. After 2 yrs everything was ok, until he went after his life ins. The doctor was called from the Insurance agency and the doctor, said this was enough and set up another guardianship hearing and without his sister being notified by my husband the hearing went in favor of the gurardianship for me. Because in the first time a guardianship I may not have been choosen it could of been his sister. So, I meat she would be in charge of my affairs. Avoid a guardianship if possible. It's a lot of paper work, court hearings and family fighting. And I had to post a bond for this guardianship to be paid ea year. That got dropped after 12 years. You have to list every asset that is in my husband name and keep a record of what you spend and submit to probate court yearly and also to medicare yearly. They send all the papers for you to file. It's a mess. after 20 + yrs. the court has dropped the bond because actually my husband had no assets, except he trucks and tools, and his medicare and pension. That considered his money and has to be reported. Lucky for me I had the house deeded to me in 1972, otherwise his sister could of kicked me out of my own home. and she would have to. Now my husband has dementia and can't handle anything, get dress, go to the bathroom and now can barely walk. This is my story on the Guardianship. You find out the hard way that family can and will step in if you go for a guardianship. It took me 3 yrs to pay both lawyers, and his lawyer would not drop the divorce until she got paid. So, another charge on the credit card.

The caregiver's voice answered...

Sad and Broken's sharing is the reason WHY we MUST set up our estate plans (Advance Care Directives/Living Will, Financial and Asset plans, etc.) NOW even if we're not ill or old. Otherwise, this (or a related and equally) devastating outcome could lie in wait for anyone of us! Thanks for sharing, S&B.

Spollack answered...

Getting conservatorship is also expensive. In New York State, when my aunt (who was childless and I was her POA) began wandering, giving away money to con artists, resisting her caregivers and harming herself, we sought guardianship, aka conservatorship. The State of NY appointed an Eldercare lawyer to her as state policy, and we had to go to court. Even with a short one-hour hearing, we had to pay our lawyer, the state lawyer and court costs- which totaled nearly $30,000. If there had not been any problems with my aunt, we would not have sought guardianship. Avoid it if you can!

Morgan33 answered...

The truth is that the Guardianship system is broken. The very people assigned by the court to protect "incapacitated" elders are allowed to take incredible advantage of them because there is no oversight outside the court room where these sequestered proceedings happened. As one Florida senator recently said, the guardianship system is breeding "cockroaches" that feed off elders who have lost their constitutional rights. Their assets are put in control of a total stranger who basically charges whatever he or she wishes for unwanted "services." Protecting incapacitated elders has become BIG BUSINESS. The conflicts of interest within the court system are outrageous. Any elder sucked into this court will have assets abused and drained, leaving nothing for heirs. The elder's home can be sold off, all belongings, and all assets to pay the guardian and other employees basically robbing the elder blind. Want to know more? Go to my FB page: Money Magazine has called the Guardianship system "America's Dirty Little Secret." It's not so secret anymore. . . .