Is It Time to Appoint a Guardian or Trustee for Your Aging Parent?

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Baby Boomers who are lucky enough to have one or both parents still living are facing some tough decisions when it comes to caring for our parents. My mother is suffering from mild dementia and, while she still lives on her own, she has several caregivers (including my sister) who monitor her situation every day. As her mental state deteriorates and her confusion increases, more and more of her everyday decisions and activities are taken over by those caregivers.

It’s important to help our parents retain their independence and personal dignity as they grow older, but if they have reached a point where they can no longer make decisions on their own, then it's time to consider appointing someone close to them to take over those actions and decisions that they are no longer able to handle. If an elderly person still maintains his/her mental faculties, they can make a Power of Attorney and appoint an agent (an attorney-in-fact) to make healthcare decisions, handle the finances, pay bills, and look after their personal or financial affairs. But if they don't have a Power of Attorney and have been adjudged as not capable to make decisions, it's not possible to appoint an attorney now. So what can be done?

Appointing a Guardian and/or Trustee

The Court can appoint a legal guardian (or trustee) to make decisions for an adult who no longer has capacity, and who does not have a Power of Attorney or an Advance Medical Directive in place. You will need to make an application to the Court for such an appointment. A guardianship appointment usually requires evidence from one or two physicians that the adult is incapable of handling his/her own affairs. (In some jurisdictions, guardianship is referred to as conservatorship, and the guardian is called a conservator. You may recognize this term from Britney Spears’ case – her father and her fiancé are appointed as her co-conservators.) Many states and provinces have a Public Guardian or Public Trustee who oversees and protects the estates of dependent adults (represented persons), and who ensures that the guardian fulfills the duties and responsibilities set out in the Guardianship Order. If the appointed guardian is not performing his/her obligations, the Court can then appoint a replacement.

What Are the Responsibilities of the Guardian?

In general, a guardian has fairly broad powers to make decisions for the dependent adult, including medical treatment, hospitalization, living arrangements, social activities, nutrition, personal hygiene, legal matters, and any other matters that the Court may deem necessary. In some cases, a separate trustee may be appointed to handle the adult’s financial and business affairs, or it may be in the adult’s best interests to have the guardian also handle these matters. Guardians and trustees are legally obligated to always act in the best interests of the dependent adult, and with regard to the adult’s beliefs and wishes, insofar as they can be determined. Whenever possible, the adult should be included in the decision-making process. This gives him/her the opportunity to state their wishes and maintain some level of independence and self-determination.

Who Can Act as a Guardian?

Typically, the person taking on the role of guardian will be a family member or someone close to the incapacitated adult. The guardian must be of legal age and should be in regular contact with the adult and know their values and belief system. If there is no one in the adult’s family or circle of friends that is able or willing to act as a guardian, the Court can appoint someone to fill the role. The Court will often appoint the Public Guardian to act as guardian and a bank or financial institution to act as trustee for a dependent adult. If you become your parent’s guardian, you will be expected to:

• be in regular contact with the person;
• consult with the person’s doctors and medical service providers to help plan their treatment and medical care;
• make sure that his/her needs are being met;
• make sure that all decisions made on his/her behalf are in his/her best interest.

If a Guardian is Appointed, Will My Parent Have to Live in a Care Facility?

Since a guardian is only appointed if a person no longer has capacity, it’s often in his/her best interests to live in a residential care facility where there is always someone present to monitor and assist him or her as needed, particularly if the adult suffers from Alzheimer’s or advanced dementia. But the level of care is dependent on your parent’s physical and mental condition and level of functioning.

The Downside of Guardianship

A guardianship appointment is not a cut-and-dried affair. The Court must first be shown evidence that the person lacks mental capacity and can no longer make decisions for him/herself. This will require the opinion of one or more medical practitioners. The person in question also has the right to legal representation and to file an objection to the appointment. If there is disagreement between family members about (i) the person’s need for guardianship or (ii) who should act as guardian, the disagreement can draw the proceedings out into a long and costly affair, and the emotional toll it will take on the family members can be devastating.

Guardianship is a heavy responsibility. You will be supervised by Court and government authorities, and you are required to submit formal reports at regular intervals. Be prepared for some unpleasant surprises when you begin to investigate your parent’s finances. There may be a host of unpaid bills and unfiled income tax returns sitting in that stack of paper on the kitchen table, particularly if no one else in the family has been supervising the bill paying lately. You may find that some bills have been paid twice, or that your mom has been giving huge amounts of money to local charities. If your parent still owns a home, you may be forced to sell it and move them into a senior’s facility, assisted living center or nursing home. But the immediate benefit of this is twofold: (i) the money from the sale will go a long way in paying for their living expenses, and (ii) they will no longer have to worry about home repairs, yard work, maintenance, etc., which can be a huge burden for any senior. And most importantly, if you become guardian, your parent will lose much or all control over his or her life. This will leave mom or dad feeling vulnerable and dependent, which can result in depression and the loss of a will to live.

What It All Means

Guardianship is a serious step and should only be considered as a last resort. If your parent has lost the capacity to make decisions for him/herself, then someone must take over the decision-making for him/her. It’s difficult and time-consuming, but also rewarding. You’ll be helping your mom or dad continue to enjoy life and to retain as much independence as possible during the remainder of their years. You’ll be ensuring that he or she is safe, healthy, and well cared for. It’s the most we can hope to do for those we love, be they our children or our parents.