Can my stepson petition for guardianship of my husband?

3 answers | Last updated: Jul 29, 2015
A fellow caregiver asked...

My husband had an accident and is in a coma. My stepson got to the hospital before I did and took his wallet and his credit card. He has been using my husband's credit card and he is not on the account and has charged over $400 on it. He said he was going to a Superior Court Judge and get legal guardian over my husband's affairs. Can he do this? My husband and I have been married for over 15 years but we were separated at the time of the accident.

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.

Unless your stepson's name is on your husband's credit card account, he has no legal right to use his charge card. He does, however, have the right to go to court to petition to become your husband's legal guardian -- although that doesn't mean the arrangement will automatically come to pass.

To be appointed a legal guardian, also called a conservator, your stepson would first need to file papers with the local court, clearly describing your husband's physical or mental condition and inability to make decisions. If you are still legally married, the court will notify you that the papers have been filed and that a judge will be deciding whether or not to grant the request. You will also be given the chance to file your own legal papers, either supporting or contesting the arrangement.

If you want to oppose your stepson's request, you'll likely need to hire an experienced lawyer to help. To begin your search for the best lawyer for the job, contact the local bar association and ask whether it has a lawyer referral service that includes those who specialize in conservatorships or elder law. You can also contact the National Academy of Elder Law Attorneys for a referral to its members in your area.

Community Answers

A fellow caregiver answered...

Not only can you son file for guardianship He probably will get it. You where not living with your huband at the time. This will go against you. I was married for 12 years to my huband who now has dementa.My stepchildren talked him into removeing money from my account ,the fileing for divorce telling him I was going to put him in a nursing home. I tried for guardianship, his children show up in court and said he was fine  Do to the fact we where getting a divorce the judge would not give it to me.even though Drs. at Henry Ford in Detroit Mi. said he needed a guardian and he should not be living alone. I fought this for a year. His children had me removed from the house and then  divorced. In less than 60 days after the divorce the stepson had guardianship. Both judges knew he had dementa.  He now lives alone. is drinking . He calls offen wanting  to know when I am coming home. His son told him I would come back when the divorce was over. He can not understand why I am not back. He thinks I will still be back. My advice is to take all the money you can and get as far away as you can, My huband daughter harmed me phyically.

Cmacp answered...

Anonymous; You say your step son was awarded Guardianship of your Ex and now he is living alone, drinking, and asking for you. This is heartbreaking. As Guardian, your husband's son has a legal responsibility to make sure your Ex is cared for safely. First, what alternatives are available for your husband's living arrangements? You may be able to have the children removed as Guardian if you file abuse charges against them. However, make sure you know what you want before you make a move. Are you sure you are capable of handling his care and being his Guardian? Can you apply for co-Guardianship? This would give you rights to visit and participate in his care. Reapproch his children and try to rediscuss the matter in friendly terms. By this time, his children may realize they bit off more than they can chew, and would welcome some help. Try not to squabble in front of the Court. Present a united front or you could loose your husband to a State run institutiion. If you're not careful, the Court has the right to remove your Ex from all family members - including you, - and making him a Ward of the State.