Are guardians required by law for mentally incompetent elders?

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 Answer

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."