Guardianship for Someone with Dementia

November 11, 2023
November 11, 2023
Posted by
Bre'anna Wilson
November 11, 2023
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At some point along your dementia care journey, it may become necessary to seek guardianship for someone living with dementia to ensure that their needs are met and their best interests are protected. Guardianship should only be considered as a final option or last resort and should ideally be preceded by having a "Power of Attorney" in place. In many legal contexts, a Power of Attorney allows an individual to designate someone to make decisions on their behalf, and it is often used as a less restrictive alternative to guardianship when someone is unable to make decisions for themselves.

This blog post will walk you through the process of applying for guardianship for someone with dementia, outline the responsibilities of a guardian, touch on state-specific variations, and highlight the professionals who can guide you through this important journey.


Applying for Guardianship for Someone with Dementia

Guardianship is a legal process in which a court appoints a person to make decisions on behalf of an individual who is unable to make decisions for themselves (deemed incapacitated). In the case of dementia, guardianship may be necessary when the individual is no longer able to make decisions about their own care, finances, or living arrangements.


The process of applying for guardianship varies from state to state, but generally involves the following steps:


  1. Assessment: Consult a medical professional such as a neuropsychologist (may require referral from primary care physician) who can assess the person's cognitive abilities and provide documentation of their incapacity.
  2. File a petition with the court: The petition should include information about the individual with dementia, their medical condition and assessment, a statement of the person's assets and liabilities, why guardianship is necessary, and other relevant documents.
  3. Notify interested parties: Once the petition is filed, interested parties, such as the person with dementia, family members, and healthcare providers, must be notified of the guardianship proceedings. This ensures transparency and allows them to relay any concerns to the court.
  4. Attend a hearing: The court will schedule a hearing where a judge will determine whether guardianship is necessary and who should be appointed as guardian. The individual with dementia may be required to attend the hearing, and a court-appointed evaluator may be assigned to assess their capacity. The judge will review the evidence, consider any objections, and then make a final determination.
  5. Obtain a court order: If the court determines that guardianship is necessary, a court order will be issued appointing a guardian. The court will outline your responsibilities and the limitations of your authority.


Responsibilities of a Guardian for Someone with Dementia

As a guardian for someone with dementia, you have a legal responsibility to act in their best interests and make decisions on their behalf. Some of the responsibilities of a guardian for someone with dementia may include:

  1. Making healthcare decisions: You may be responsible for making healthcare decisions on behalf of the individual with dementia, such as choosing and collaborating with doctors, selecting medical treatments, and making sure they receive appropriate care.
  2. Managing finances: You may also be responsible for managing the person's finances, including paying bills, managing investments, and protecting their assets.
  3. Providing for basic needs: You may be responsible for ensuring that the individual's basic needs are met, such as food, shelter, and clothing.
  4. Making living arrangements: You may also be responsible for making decisions about the person's living arrangements, such as whether they should live in a nursing home, memory care, or receive in-home care.
  5. Managing legal matters: You may need to represent the person with dementia in legal proceedings. This could involve matters such as estate planning, property transactions, or disputes. You'll likely want to work with an elder law attorney to your person's legal rights are protected.


State-Specific Variations

It's important to keep in mind that guardianship laws vary from state to state. Some states might require different documents or procedures, and the level of oversight by the court can differ. Consulting an attorney familiar with guardianship laws in your state is your best bet to ensure a smooth process.


Professionals Involved in the Guardianship

The guardianship process can be complex, and it is important to seek the advice of professionals who can help guide you through the process.


Some professionals who may be involved in the guardianship process include:

  1. Attorneys: An attorney, especially an elder law attorney, can help you navigate the legal process of applying for guardianship and ensure that your person's rights are protected.
  2. Medical professionals: Medical professionals can provide information and documentation about the individual's medical condition and capacity, which may be important in the guardianship proceedings.
  3. Social workers: Social workers can provide support and resources to help you care for your person with dementia.
  4. Financial Advisor: Given the financial implications of guardianship, a financial advisor can help manage the person's assets and ensure responsible financial decision-making.



References:

https://romanosumner.com/blog/5-things-needed-claim-guardianship-elderly-parent/

https://stowellassociates.com/how-to-get-guardianship-of-parent-with-dementia/

https://www.jacksonwhitelaw.com/guardianships-conservatorships/guardianship-for-elderly-with-dementia/



*This blog is post is for informational purposes only and is not considered legal advice on any subject matter.

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