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There is a LOT to Guardianship. I am 99.99% sure that it would need to be overseen by the court. this is something that I would take through an attorney preferably one that knows Elder law or family law. I can not imagine someone that is of "sound mind" giving up all their rights to another. And if I were asked by a friend or family member to do this for them I would have to think very long and hard about it. To make decisions for a person that is capable of making their own decisions would be tough. Unless there was a very good reason I would probably decline,.
If the person has already been diagnosed with dementia, or is incapable of making decisions then a Guardian would have to be appointed and that would go through court. If the person has dementia and a lawyer talks to the person, one on one and determines that this person, even though they have been diagnosed with dementia still has capacity then papers can be drawn up placing another in the position to make decisions for them for Health Care, Finances and other day to day tasks. This would NOT have to go to court but proper paperwork has to be done so that all institutions recognize the authority of the person appointed. They BOTH need to see a lawyer again preferably an Elder Care Attorney
I don't believe that a lawyer can determine 'capacity' and a medical provider would need to provide documentation/diagnosis, correct?. Do you know the name of the actual legal document someone WITH capacity would fill out to ask for guardianship over them? Thank you
A senior should/can ask for POA, for someone to serve as their POA and when he was diagnosed with probable early Lewy's Dementia and a brain tumor (probably old, benign and calcified) at age 83, that's what my brother asked of me. He assigned me POA and Trustee of Trust, he sold his last small home and he moved to ALF. He had me handle everything from bills to taxes and I was in charge of all matters. This document was so strong and well written by the attorney that his attorney warned him I could sell the gold out of his teeth. So it was very strong. Your POA will know your wishes in all things, and can be assigned as your Medical POA (MPOA) as well. You should not require "guardianship". Can you tell me why you would want it?
The elderly parent is coming out of a long 5 month hospital stay for psychosis. In the meantime, the daughters were powerless over her treatment. In addition, should this happen again (and it probably will) they may want to have control over all aspects of her life (medical, financial, etc) and not have separate documents for different issues (POA for medical/POA for financial, etc). It would be easier to just obtain guardianship and be able to step in when its needed. If she stays stable, then she can live her life the way she likes...but if she goes sideways again they would be able to step in and manage all areas of her life. Guardianship allows for control in all areas for a person who is incapcitated. I know its usually a court issue, but my question was related to this elderly woman ASKING for guardianship because of her issues. I was hoping that in such a case, where its not contested, going to court would not be necessary.
Guardianship IS a legal procedure, so I doubt that, unless the senior was unable to travel to court b/c of a serious medical condition, the Court would require a hearing. However, given the pandemic, the hearing might be held in a manner that didn't require the actual physical presence, as courts have been doing.
This really is a question for an attorney in the Guardianship practice area (a larger category which likely would include Estate Planning, with preparation of Trusts, Wills, Codicils, Guardianship and representation, and related practice and subpractice areas).
What you could do though is to search online for firms with an Estate Planning practice area that includes guardianships, then contact the firm and ask your question. Attorneys really are the best source to answer this kind of query.
Something else occurred to me. I see that you're helping a friend and apparently she's the caregiver?
There used to be a legal procedure called "Next Friend" suits. It was used if a child or minor, or other individual unable to represent her/himself, was the Plaintiff. Parents sued as Next Friends of their minor children who had been injured. That's just one option of an NF suit.
If your friend's parent doesn't want to or is unable to attend court proceedings, her daughter could retain an attorney with the goal of filing a NF suit to gain guardianship, but that mixes 2 different concepts and I'm not sure if that's feasible.
If your friend wants to get guardianship of her parent w/o going through court proceedings, I would think that the proceedings in one aspect serve to prevent this kind of assumption of responsibility and control.
I was recently made the permanent guardian for my exSIL with her agreement. I was a temporary guardian after she had problems following a covid illness and APS was called in when some family financially abused her. During my 6 month temporary guardianship, my SIL's cognition improved but was still borderline competent. Because of the issues with some of her family, APS recommend I become permanent guardian and my SIL signed an affidavit requesting I continue. That's as close as I can think of someone asking for a guardianship but it did still required judicial review and I will be required to submit annual reports to the court.
1. The person must be competent to ask for a voluntary guardianship. 2. Your friend will have to go to court but many courts are conducting hearings online. 3. Here is what the American Bar Association says on the matter of voluntary guardianships: "In a voluntary guardianship...an individual may petition for or consent to a court-appointed guardian. A state-by-state survey of voluntary guardianship laws is now available on the Commission on Law and Aging's website....[However] even when a state statute lacks any statutory language regarding voluntary or consent guardianships, in practice individuals may still consent to the appointment of a guardian." 4. The ABA references the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (UGCOPAA), which provides that "[a] person interested in an adult's welfare, including the adult for whom the order is sought, may petition for appointment of a guardian for the adult." NOTE: The state your friend is living in has to have adopted this act. 5. Moreover, the ABA points out that UGCOPAA notes that "where an adult seeks to obtain assistance, it is preferable for the adult to execute a durable power of attorney, engage in supported decision making, or both." 6. Here is the ABA website page for this topic: https://www.americanbar.org/groups/law_aging/publications/bifocal/vol-42/vol--42-issue-2--november-december-2020-/voluntary-guardianships--a-primer-on-states-guidance/ 7. Educate yourself on what guardianship, conservatorship, and durable medical and/or financial POAs entail. They are powerful and can be time-consuming. Make sure you or whoever you're asking for understands this. 8. Your friend will have to go to court to obtain a voluntary guardianship. If that is a serious problem, they may want to consider assigning just POAs instead. Depending on the laws of their jurisdiction, these may need to be witnessed and notarized. Some counties have been allowing notarizing over Zoom or the like. 8. This is vital: Consult an elder law attorney. Guardianship is complicated and deserves expert guidance. As usual, these are suggestions and not legal advice.
Not without going to court, no - it is a judicial process. But I'm sure it doesn't have to be contested, if that's what you're worried about?
If the person is volunteering for this, is the person not capable of creating a power of attorney instead? Who exactly wants to do what exactly, and what's stopping him/her?
By proceeding, I agree that I understand the following disclosures:
I. How We Work in Washington.
Based on your preferences, we provide you with information about one or more of our contracted senior living providers ("Participating Communities") and provide your Senior Living Care Information to Participating Communities. The Participating Communities may contact you directly regarding their services.
APFM does not endorse or recommend any provider. It is your sole responsibility to select the appropriate care for yourself or your loved one. We work with both you and the Participating Communities in your search. We do not permit our Advisors to have an ownership interest in Participating Communities.
II. How We Are Paid.
We do not charge you any fee – we are paid by the Participating Communities. Some Participating Communities pay us a percentage of the first month's standard rate for the rent and care services you select. We invoice these fees after the senior moves in.
III. When We Tour.
APFM tours certain Participating Communities in Washington (typically more in metropolitan areas than in rural areas.) During the 12 month period prior to December 31, 2017, we toured 86.2% of Participating Communities with capacity for 20 or more residents.
IV. No Obligation or Commitment.
You have no obligation to use or to continue to use our services. Because you pay no fee to us, you will never need to ask for a refund.
V. Complaints.
Please contact our Family Feedback Line at (866) 584-7340 or ConsumerFeedback@aplaceformom.com to report any complaint. Consumers have many avenues to address a dispute with any referral service company, including the right to file a complaint with the Attorney General's office at: Consumer Protection Division, 800 5th Avenue, Ste. 2000, Seattle, 98104 or 800-551-4636.
VI. No Waiver of Your Rights.
APFM does not (and may not) require or even ask consumers seeking senior housing or care services in Washington State to sign waivers of liability for losses of personal property or injury or to sign waivers of any rights established under law.
I agree that:
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I authorize A Place For Mom ("APFM") to collect certain personal and contact detail information, as well as relevant health care information about me or from me about the senior family member or relative I am assisting ("Senior Living Care Information").
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APFM may provide information to me electronically. My electronic signature on agreements and documents has the same effect as if I signed them in ink.
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You consent to APFM's reaching out to you using a phone system than can auto-dial numbers (we miss rotary phones, too!), but this consent is not required to use our service.
I am 99.99% sure that it would need to be overseen by the court.
this is something that I would take through an attorney preferably one that knows Elder law or family law.
I can not imagine someone that is of "sound mind" giving up all their rights to another.
And if I were asked by a friend or family member to do this for them I would have to think very long and hard about it. To make decisions for a person that is capable of making their own decisions would be tough. Unless there was a very good reason I would probably decline,.
If the person has already been diagnosed with dementia, or is incapable of making decisions then a Guardian would have to be appointed and that would go through court.
If the person has dementia and a lawyer talks to the person, one on one and determines that this person, even though they have been diagnosed with dementia still has capacity then papers can be drawn up placing another in the position to make decisions for them for Health Care, Finances and other day to day tasks. This would NOT have to go to court but proper paperwork has to be done so that all institutions recognize the authority of the person appointed.
They BOTH need to see a lawyer again preferably an Elder Care Attorney
Your POA will know your wishes in all things, and can be assigned as your Medical POA (MPOA) as well.
You should not require "guardianship". Can you tell me why you would want it?
This really is a question for an attorney in the Guardianship practice area (a larger category which likely would include Estate Planning, with preparation of Trusts, Wills, Codicils, Guardianship and representation, and related practice and subpractice areas).
What you could do though is to search online for firms with an Estate Planning practice area that includes guardianships, then contact the firm and ask your question. Attorneys really are the best source to answer this kind of query.
There used to be a legal procedure called "Next Friend" suits. It was used if a child or minor, or other individual unable to represent her/himself, was the Plaintiff. Parents sued as Next Friends of their minor children who had been injured. That's just one option of an NF suit.
If your friend's parent doesn't want to or is unable to attend court proceedings, her daughter could retain an attorney with the goal of filing a NF suit to gain guardianship, but that mixes 2 different concepts and I'm not sure if that's feasible.
If your friend wants to get guardianship of her parent w/o going through court proceedings, I would think that the proceedings in one aspect serve to prevent this kind of assumption of responsibility and control.
2. Your friend will have to go to court but many courts are conducting hearings online.
3. Here is what the American Bar Association says on the matter of voluntary guardianships:
"In a voluntary guardianship...an individual may petition for or consent to a court-appointed guardian. A state-by-state survey of voluntary guardianship laws is now available on the Commission on Law and Aging's website....[However] even when a state statute lacks any statutory language regarding voluntary or consent guardianships, in practice individuals may still consent to the appointment of a guardian."
4. The ABA references the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (UGCOPAA), which provides that "[a] person interested in an adult's welfare, including the adult for whom the order is sought, may petition for appointment of a guardian for the adult." NOTE: The state your friend is living in has to have adopted this act.
5. Moreover, the ABA points out that UGCOPAA notes that "where an adult seeks to obtain assistance, it is preferable for the adult to execute a durable power of attorney, engage in supported decision making, or both."
6. Here is the ABA website page for this topic: https://www.americanbar.org/groups/law_aging/publications/bifocal/vol-42/vol--42-issue-2--november-december-2020-/voluntary-guardianships--a-primer-on-states-guidance/
7. Educate yourself on what guardianship, conservatorship, and durable medical and/or financial POAs entail. They are powerful and can be time-consuming. Make sure you or whoever you're asking for understands this.
8. Your friend will have to go to court to obtain a voluntary guardianship. If that is a serious problem, they may want to consider assigning just POAs instead. Depending on the laws of their jurisdiction, these may need to be witnessed and notarized. Some counties have been allowing notarizing over Zoom or the like.
8. This is vital: Consult an elder law attorney. Guardianship is complicated and deserves expert guidance.
As usual, these are suggestions and not legal advice.
If the person is volunteering for this, is the person not capable of creating a power of attorney instead? Who exactly wants to do what exactly, and what's stopping him/her?
has information about voluntary guardianship in Indiana and contrasts POA vs guardianship.
Consulting an attorney is the only way to know for sure what Indiana requires.