Guardianship: Asserting Control To Protect An Elderly Family Member

Nothing is more difficult than watching a loved one's mental capacity deteriorate. You may have noticed little signs such as missed appointments, spoiled food in the fridge, odd or duplicated purchases, or puzzling statements when you call to check in on your aging parent. Perhaps there have been more alarming incidents such as getting lost or leaving the house with the stove or the iron on. The onset of dementia or the early stages of Alzheimer's often require family members to step in.

What do you do when Dad or Mom can no longer handle their finances or take care of their own health? Without a designated power of attorney, it may be necessary to petition the court to take control of a parent's health care, personal, legal and/or financial matters.

What Exactly Is Guardianship?

Guardianship can refer to stewardship over the person — especially health care and personal affairs — or guardianship over property such as the person's business affairs, bank accounts and financial matters. Commonly, one family member is appointed to both duties, but the court sometimes appoints two separate people.

What About A Power Of Attorney?

A durable power of attorney, if it exists as part of your loved one's estate plan, eliminates the need for guardianship. This document spells out when the power of attorney is invoked and specifies the stand-in's powers and limitations.

In the absence of powers of attorney, you may need to initiate Article 81 proceedings to have your loved one declared incompetent to manage his or her own health care or personal affairs. This is a formal hearing before a judge that involves presenting evidence of your loved one's incapacity.

How To Protect Your Aging Parent Or Loved One

Protecting your loved ones from themselves does not have to be expensive or inconvenient. If properly handled in advance, your aging parents can put documents in place to guide family members who want to help look after them. At Robshaw & Voelkl in Williamsville, our lawyers encourage clients to avoid these difficult situations by putting into place the right estate planning measures while they still have the capacity to do so.

However, we realize that sometimes a vulnerable elder urgently needs to be placed under the protection of a guardian/conservator when there are no such estate plans in place. Even if your loved one's health or mental capacity has deteriorated beyond voluntary measures, Article 81 proceedings to establish guardianship can be carefully managed to avoid a tense confrontation and to limit the cost. We handle these proceedings in Surrogate Courts throughout Western New York.

Contact us today at 716-633-4030 to discuss your situation during a free consultation.