Making the decision that a parent needs a guardian can be very difficult. Typically, this question arises when a parent has begun to show signs of mental impairment. For instance, your mother may be forgetting to take her medication more frequently. Or she may forget she has food cooking on the stove. If she has begun to get lost or disoriented when she is away from home, or has become a danger to herself or others, it is probably time to consider a guardianship.
What do I do?
The preferred solution, of course, is to take care of your mother’s needs informally. You may be successful doing this with the help of family and friends. But, sometimes, formal control of her affairs will be needed in order to gain access to her finances or to be able to make health care decisions. Guardianship is one method of acquiring that control. However, it is not the easiest or lease expensive solution. It is a good idea to consult with an estate planning attorney in California before you make a final decision.
What type of guardianship does she need?
A guardian is someone appointed by a court and given the authority to manage and control the affairs of someone who is incapacitated. Guardians can be given different degrees of control. He or she can be appointed to manage either personal affairs, including health care; finances and the person’s estate; or both.
A Limited Guardianship may be all that is necessary if your mother is disabled and can still make some, but not all, decisions for herself. On the other hand, a general guardianship may be required so that the guardian can make all important decisions regarding the individual’s personal care and finances. Temporary Guardianships can also be created in emergency situations just to assure that the person who needs the guardianship receives immediate protection.
A Power of Attorney could be a better choice.
Appointment of a guardian is necessary for some. But less restrictive options may be sufficient for others. A durable power of attorney is an example of a less restrictive option. A durable power of attorney provides the person chosen to be the agent, the authority to handle healthcare and personal decisions, just as a guardian would. The document can easily be drafted by an estate planning attorney and the process is much less expensive than a court-supervised guardianship. More importantly, the principal has the opportunity to choose the agent. Whereas, the court chooses and appoints the guardian.
It is best for a durable power of attorney to be executed well in advance of any signs of diminished capacity. So, if your mother seems to be slipping a little and a power of attorney have not already been created, consult a California estate planning attorney as soon as possible. Your mother may still be able to sign the legal document if she still has sufficient cognitive capacity. Otherwise, guardianship may be the only course of action available for her.
Latest posts by Scott Schomer, Estate Planning Attorney (see all)
- Understand the Limitations of Social Security and Medi-Cal - May 5, 2019
- Basic Estate Plan Components - May 4, 2019
- Estate Planning and Remarriage - May 3, 2019