How to Obtain Guardianship—and When You Should

Realizing that your parent has become incapable of caring for herself or making reasonable decisions about her property is a heart-wrenching discovery. And if you postponed getting legal documents in place -- a power of attorney and living will -- your only option may be guardianship.

Obtaining legal guardianship is complicated and invasive, and should be considered a last resort. Arranging for a power of attorney in advance, when your parent can still participate in decisions about her care, is usually a better solution. But if guardianship does become necessary, here’s what you should know.

What is guardianship for elderly individuals?

A court-ordered guardian has legal authority to make decisions about a senior’s health and property. In most states, the terms “guardian” and “conservator” are used interchangeably. In some, however, a “guardian” looks after a senior’s health, while a “conservator” takes care of her property.

As guardian, you are not responsible for your senior’s finances. In some cases, though, signing medical or care agreements makes you the “guarantor” and therefore, financially responsible. So read carefully before you sign, and seek legal advice if you have any questions.

How can I be appointed a guardian for a parent?

Guardians are appointed by state courts, and the process varies from state to state. Typically, though, you’ll file legal papers and then have a hearing in front of a judge. Your senior, and perhaps other family members, will be notified and given the opportunity to contest the proposed guardianship.

The judge may want to speak with your senior to determine whether or not she understands the proceedings, and in some cases, the judge may appoint another lawyer to represent her. Once you’ve been appointed as guardian, you may be required to return to court either to report on or to gain approval for major decisions made on behalf of your senior.

How much does it cost to obtain guardianship of a parent?

Securing guardianship can be a complex process if contested, with costs varying greatly based on the intricacies of each case and whether you employ legal assistance. If guardianship is uncontested and you choose to engage an attorney, you could potentially be looking at expenses ranging from $2,500 to $5,000. If contested, the costs can escalate significantly, potentially exceeding $10,000.

These are estimates and it's advisable to consult with a legal professional in New York to gain a more precise understanding of the potential costs involved in obtaining guardianship. Their expertise can provide a comprehensive breakdown that is tailored to your specific situation. If you don’t have someone we can recommend a guardianship specialist.

When is guardianship appropriate?

Unlike a power of attorney, which must be obtained when your senior is still mentally competent and able to transfer legal and financial authority to you, a guardianship is ordered by a court when your senior is legally incapacitated. This comes up most often when seniors suffering from dementia are no longer able to make rational decisions about their care or property.

Guardianships aren’t common and are most often sought when families can’t agree on legal, financial, or medical decisions for their senior. Obtaining a guardianship is costly and time consuming. Legal fees may total thousands of dollars, and weeks can pass between petitioning the court and being appointed as guardian. Guardianship hearings tend to be stressful and invasive to your senior’s privacy. For all of these reasons, guardianship should be your last resort when caring for an aging parent.

If you do decide to petition for guardianship of your senior, you’ll want to work with an experienced elder care lawyer throughout the process. It’s also important to allow plenty of time to address any concerns other family members may have. For additional support, you can consult the Alzheimer’s Association, the National Guardianship Association, and the National Academy of Elder Law Attorneys.