If an elder has not planned for incapacity by obtaining a Durable Power of Attorney for Health care and a Durable Power of Attorney for Property prior to becoming incapacitated, Guardianship is necessary to protect the elder’s finances and to make sure his or her personal and medical needs are met. There are also occasions where the elder has POA’s but also has advanced dementia and is determined to give large amounts of assets to strangers, or to just take out many credit cards and incur large debts to pay to predators. If the POA Agent or Trustee attempts to intervene, the elder with dementia either revokes the POA Agent’s authority or just goes on spending large amounts of money. There are cases where an elder becomes psychotic and has to be hospitalized, due to dementia. This is a difficult area of the law to navigate, but Guardianship can be the best solution for advocating for the elder, especially against a bullying facility that is determined to take all of the elder’s remaining assets, as a condition for being admitted. The court can serve as a counterbalance, enabling the elder’s attorney to save assets in a pooled trust and pay off the equivalent penalty for that pooled trust transfer via a Medicaid Complaint Annuity to be used for his/her care in the facility.
There are some alternatives to guardianship and a few different types of guardianship that may be better suited for an elder who has partial incapacity. A physician’s report will ultimately be the determining factor guiding the court‘s decision in determining the type of Guardianship and whether Guardianship is necessary for the alleged ward. The Guardian for the Person is usually a family member and the Guardianship for the Estate of the alleged ward is often a family member, trusted friend or financial institution. The process for petitioning for Guardianship involves giving the alleged ward proper notice along with a declaration of their rights, including the right to contest the Guardianship in a legal proceeding with legal counsel. Some cases involve litigation with the alleged ward and possibly family members contesting the Guardianship.