6 Things I Learned About Guardianship
“People in their fifties don’t get dementia.”
“You must have paid off the doctor.”
“You’re just trying to ruin his life. I bet you’re just after his money.”
“This is elder abuse.”
“You’re making a big mistake. There’s nothing wrong with him.”
“I don’t think you’re the right person to make these decisions for him.”
These are the sentiments my family heard when we placed our father in a nursing home at the age of 57 after he was diagnosed with moderately advanced behavioral frontotemporal dementia (bvFTD.) He had been putting himself and others in danger - real and immediate danger - for months, but to the casual observer, he did still seem fairly normal.
We should have seen the writing on the wall, really, when we started getting comments like these… But we were completely blindsided when we found out our filing for guardianship was going to turn into a full-fledged court battle for the authority to take care of our dad.
Before Dad’s diagnosis, I knew nothing about guardianship proceedings or elder law or any such thing. (I mean… I was in my 20’s. With a toddler. Elder care wasn’t exactly at the top of my skills list.) But I sure had to learn quickly…
If you’re starting your journey as a caregiver for a loved one who has dementia, especially if it’s early onset, one of the most helpful things you can do is give yourself a crash course in the legal side of dementia care - because you just never know what legal obstacles may arise in your attempts to establish appropriate care.
Now for the big question:
What exactly is guardianship? I’m so glad you asked. Guardianship (sometimes called conservatorship) is a legal proceeding when someone else receives authority from the government to assume responsibility for someone else who cannot make or communicate safe, sound decisions about their person and/or assets. (NAELA.org) Basically, when you file for guardianship, you are asking the court to legally recognize the person as unable to make informed decisions and to appoint an official caregiver “guardian” who will be responsible for their care and estate.
This process requires lawyers and a judge to be involved, and sometimes it can get… messy. Which is why, if your family is on a journey involving dementia (especially early onset dementia like FTD,) you might want to know a bit about the process.
***Before we go any further, an important disclaimer: I AM NOT A LAWYER. I have zero background in law, in fact, besides my experience doing what basically amounts to a lot of social work while caring for my dad. So if you are considering whether guardianship could be a good fit for your family’s situation, definitely read the rest of this article… But then go contact a NAELA attorney in your area and have them talk you through the specifics in your situation.
So without further ado…
Here are 6 things I learned about guardianship:
#1 - Guardianship should be a last resort.
A first step to helping with the financial, legal, or health care decisions related to your loved one’s care often involves securing Power of Attorney (POA.) It is far easier, far less expensive, and far less complicated to obtain. (If you haven’t yet, go read part one of our Legal Side of Dementia Care blog series, 6 Things I Learned about POA.)
Guardianship, however, is much more complicated. Guardianship proceedings are filed only if you need to legally declare the person “mentally incompetent” - meaning, they are officially recognized by a court of law as lacking the cognitive abilities necessary to care for themselves or make sane decisions related to their care, finances, etc. Basically, a judge hears the evidence and then rules whether or not the person is in their right mind enough to be able to make their own decisions about their life and care.
It’s a little scary, if you think about it.
That’s a lot of power to give and take away… which is why it should be your last resort.
There are different types of guardianship. In an emergency situation when a person has very clearly become a danger to themselves or others, a judge will sometimes grant Emergency or Temporary Guardianship - meaning, the full legal proceedings haven’t taken place yet, but he has seen enough evidence to grant someone else temporary control over the person in order to secure their immediate safety or the safety of others while the process for permanent guardianship is underway.
Usually this step is not necessary, but in extreme situations, it can be vital to ensuring the person remains safe while you wait for the full legal proceedings.
In both temporary or permanent guardianships, the person’s doctor must submit a Physician’s Report testifying their professional opinion that the person is unable to make sane decisions (and why.) Your lawyer can give you a blank copy of this report for you to give to the doctor.
You also may submit documentation as to why the proposed guardian is the best choice to manage the person’s affairs moving forward (background check, financial statements, character witness statements, etc.)
Once a guardianship request has been filed, all parties - the person and their next of kin - are notified in writing, and a hearing is set by the judge.
#2 - Guardianship sometimes is necessary
Sadly, there’s a reason adult guardianships exist. Sometimes, you just have no other option for keeping the person and their assets safe. Dementia and other cognitive impairments make a person extremely vulnerable to a whole host of potential dangers, and if for whatever reason you haven’t been able to plan ahead and get POA, guardianship sometimes is needed.
Situations where guardianship may become necessary:
When your loved one is putting themselves or others in real and immediate danger
When your loved one needs to live in a care setting against their will (as sometimes happens with anosognosia)
When someone is exploiting or taking advantage of your loved one and you need legal authority to reclaim assets and/or to force the offender to cease and desist
POA is no longer an option due to your loved one’s current state of mental deterioration
And let’s pause right here for me to say: You never want to be in a position where you need to get guardianship urgently. It’s a bit of a drawn out process. For reference: We filed for guardianship in April, the hearing happened in August, and the judge didn’t make his ruling until October. If your city’s courts move faster or your case is simpler, it could be quicker, but if it’s more complicated or you live in a large city with slow courts, it could be even longer.
Ideally, guardianships are never necessary at all. But sometimes, with how messy dementia often proves to be financially and legally, it’s just unavoidable - and it can be frustratingly slow. So just know that going in.
#3 - Guardianship can be contested.
An uncontested guardianship is fairly simple: Everyone involved is in favor, and all the judge has to do is look the evidence over and either stamp his approval or request more documentation.
The guardianship process usually happens like this:
Preparation: You hire a lawyer who helps determine if guardianship is needed and if so, helps you assemble the necessary documents from doctors, authorities, etc.
Filing: Your lawyer files an official petition to the court.
Notification: All parties (usually the person in question and all their next of kin) are alerted in writing that guardianship has been filed and when/where the hearing will be.
Hearing: The judge sets a hearing, which if uncontested, usually happens in his chambers within a month or two.
Ruling: If the evidence is strong and the petition is clear and uncontested, the judge often rules right then and there - Case Closed.
A contested guardianship however, is when someone - even the person themself - officially objects to the guardianship and submits their own idea of how the person’s care should be handled. Then guardianship gets a whole lot more complicated - and a whole lot more expensive - because it’s no longer a one-sided request: The judge has to rule in favor of one party over the other, making it more of a typical court battle scenario. Witnesses, testimonies, cross-examinations, the whole kit and kaboodle.
I never would have guessed that we would end up in a court battle for my dad’s care, but it all happened very quickly, and I was left scrambling to assemble a huge amount of data in a very short amount of time.
So be smart. Document everything. Doctor said they need 24/7 supervision? Get it in writing. Your loved one has a run in with the police or is hospitalized for unsafe behavior? Collect as much documentation as you can. Did you witness your loved one in an unsafe situation? Document it (if appropriate, with pictures.) Did your loved one get scammed out of a significant amount of money? Gather any appropriate bank statements and receipts to show that too.
This way if you ever need to prove to a court that the person truly needs help with decisions, you won’t have to start from ground zero.
Not-So-Fun Fact: If you suspect your loved one may have had run-ins with the police, most states have a public database where you can look up if they’ve ever had charges filed against them. (Indiana uses a MyCase site that’s pretty easy to search.) You can also visit your police station to see if they can provide a record of any and all run-ins your loved one may have had with their officers
It’s a lot of legwork, of course, but it IS nice to have your ducks in a row at the start of the proceedings instead of having to scramble to collect evidence and testimonies as you go.
We assured our lawyer none of our family would contest, and we didn’t think any of my dad’s friends would either. Sadly, we were wrong… Sometimes people - friends, family, whoever - come “out of the woodwork,” especially in an unusual situation like early onset dementia, and without understanding the full picture, they can unintentionally (or intentionally) make life a whole lot harder for both you and your loved one.
Contested guardianship is a true headache from start to finish, so do your best to ensure everyone involved understands and is on board with your filing. I’m not trying to scare you (okay, maybe a little teensy bit…) But I do wish I had been more prepared for that possibility going in.
#4 - Guardianship can be expensive.
Potentially VERY expensive if it’s contested or if your loved one’s estate is complicated or involves a lot of assets.
Any elder law attorney will tell you Power of Attorney (POA) is a much simpler, less expensive way to go if at all possible. Because guardianship can involve court fees, lawyer fees, doctor fees… and they can add up, especially in drawn out or contested court battles. (Which again, is rare, but as my family learned the hard way, it does happen…) Just another reason why guardianship should truly be a last resort in the legal care of your loved one.
#5 - Guardianship is a lot of responsibility, paired with legal accountability.
When you become someone’s guardian, you are volunteering to hold similar legal responsibilities as a parent would over a child - and to be held responsible to a court of law for fulfilling those responsibilities honestly. You are accepting responsibility for their care and all that entails: making sure they have food and clothing, placing them in a safe living situation, managing their finances, all of it.
And if your care choices put them in a situation where they endanger others or themselves, you are now legally held responsible.
Judges can also require guardians to provide a financial accounting - a court hearing when you provide information on all your loved one’s assets and bank accounts and account for every single expenditure. Guardianship accountings require a lot of work, but usually it assures the court that the guardian is spending the person’s assets with wisdom and integrity. It’s a major hassle that you avoid by going the POA route, but the additional accountability can be a great asset as well if you’re ever accused of elder abuse or of taking advantage of your loved one financially. This way you can prove how every dollar was spent on their care. A double-edged sword, if you will:
A pain, but one that can prove your financial integrity if your caregiving is ever questioned.
#6 - Guardianship can be a very emotional process.
You are asking the court to take away a person’s right to make decisions for themselves
That is a big deal. For you, for them, for everyone who knows them.
And if, heaven forbid, you do have disagreements within your family or have someone come out of nowhere to challenge you for guardianship, the heartache just multiplies.
So prepare yourself well. Have a therapist or counselor on standby, if at all possible, to help you through the emotional fallout. Because there WILL be emotional fallout.
For me, it helped me to remember that if my dad was in his right mind, he would WANT me to do this. He would want me to take responsibility for keeping others safe around him, and I truly believe he would be proud of me for fighting for the right to care for him well.
Remember why you are doing this.
Remember what your loved one would want, were they in their right mind.
Remember how much you love them.
You do not have to do this alone.
Final Disclaimer: THIS IS NOT FORMAL LEGAL ADVICE - just some worldly wisdom from a caregiver who has gone through guardianship proceedings in the course of caring for a loved one. To receive personalized, professional legal counsel, please search for the National Association of Elder Law Attorneys website to find an attorney in your state
