Guardianship for Elderly Parents: When POA Isn't Enough

Nobody wants to go to court to take legal control over their parent. Guardianship is expensive, time-consuming, and emotionally difficult. It strips away your parent's autonomy and requires ongoing court supervision.

But sometimes it's the only way to protect a parent who can no longer protect themselves—especially when dementia, stroke, or other conditions have left them incapacitated, and no power of attorney was ever established.

What Is Guardianship?

Guardianship (called conservatorship in some states) is a legal relationship where a court appoints someone to make decisions for an adult who has been deemed incapacitated—unable to make safe, informed decisions about their own welfare.

Unlike power of attorney, which is voluntarily granted by someone while they're competent, guardianship is imposed by a court after determining that a person can no longer manage their own affairs.

Types of Guardianship

Guardian of the Person: Makes decisions about:

• Where the person lives
• Medical treatment and healthcare
• Daily care and personal needs
• Social activities and visitors

Guardian of the Estate (Conservator): Makes decisions about:

• Managing bank accounts and investments
• Paying bills and managing debts
• Selling or managing property
• Filing taxes
• Applying for benefits

Full Guardianship: Complete authority over both personal and financial matters.

Limited Guardianship: Authority over only specific areas where the person needs help, preserving their independence in other areas.

When Is Guardianship Necessary?

Guardianship becomes necessary when all of these conditions are true:

1. Your parent is incapacitated: They cannot make safe, informed decisions due to dementia, stroke, mental illness, or other conditions
2. No power of attorney exists: They never signed POA documents, or POA was never activated
3. Decisions must be made: Medical care is needed, bills must be paid, or living arrangements must change
4. Other alternatives don't work: Representative payee, joint accounts, or other less restrictive options aren't sufficient

Common Situations Requiring Guardianship

• Parent with dementia who never established POA needs surgery or nursing home placement
• Parent is being financially exploited and refuses help
• Parent with mental illness won't take medication or accept treatment
• Parent had stroke and can't communicate; no healthcare proxy exists
• Parent with cognitive decline is making dangerous decisions (giving away money, refusing essential care)

When Guardianship Is NOT Appropriate

• Your parent is competent but making choices you disagree with
• You want control over inheritance or family assets
• Family conflict over care decisions (guardianship won't resolve this)
• Your parent can still execute POA documents
• Less restrictive alternatives would work

The Guardianship Process

Step 1: Consult an Attorney

Guardianship law varies significantly by state. An elder law attorney can:

• Confirm whether guardianship is necessary in your situation
• Explain your state's specific requirements and process
• Handle the court filings and hearings
• Represent you if the petition is contested

Find an attorney through the National Academy of Elder Law Attorneys (naela.org) or your state bar association's lawyer referral service.

Step 2: File a Petition

The process begins by filing a petition with the probate or family court in the county where your parent lives. The petition includes:

• Information about your parent (the "proposed ward" or "alleged incapacitated person")
• Reasons why guardianship is needed
• Information about you (the proposed guardian)
• Names of family members who must be notified
• What type of guardianship you're seeking

Step 3: Medical Evaluation

The court requires professional evaluation of your parent's capacity. This typically includes:

• Examination by a physician, psychologist, or psychiatrist
• Assessment of cognitive abilities, decision-making capacity, and functional limitations
• Written report to the court documenting findings

Some states require evaluation by a court-appointed professional rather than your parent's own doctor.

Step 4: Court-Appointed Attorney or Visitor

Most states appoint someone to represent or investigate on behalf of your parent:

• Guardian ad litem: An attorney who represents your parent's interests
• Court visitor/investigator: Interviews your parent and family members, reviews the situation, and reports to the court

This person will meet with your parent, review medical records, interview family members, and make recommendations to the judge.

Step 5: Notice to Family Members

Close family members must be formally notified of the guardianship petition. They have the right to:

• Object to the guardianship
• Object to the proposed guardian
• Petition to be appointed guardian themselves
• Attend the hearing

Step 6: Court Hearing

A judge reviews all evidence and hears from:

• The petitioner (you or your attorney)
• The proposed ward's attorney or guardian ad litem
• Court visitor/investigator
• Any objecting family members
• Medical experts if needed

Your parent has the right to attend (though this is often waived if attendance would be harmful).

Step 7: Court Decision

The judge determines:

• Whether your parent is incapacitated (meets legal standard)
• Whether guardianship is necessary (no less restrictive alternatives)
• Who should serve as guardian
• What type of guardianship (full or limited)
• What powers the guardian will have

Step 8: Appointment and Bond

If approved, you'll receive "letters of guardianship" documenting your authority. For guardianship of the estate, you'll likely need to:

• Post a surety bond (insurance protecting your parent's assets)
• Create an inventory of all assets
• Set up separate accounts for your parent's funds

Guardianship Costs

Initial Costs

Expense	Typical Cost
Attorney fees	$2,000-$7,500+
Court filing fees	$200-$500
Medical evaluation	$300-$1,000
Guardian ad litem fees	$500-$2,000
Court visitor fees	$200-$500
Total (uncontested)	$3,000-$10,000+

Contested guardianships (where family members object) can cost $15,000-$50,000 or more due to extended litigation.

Ongoing Costs

• Annual court filings: $100-$300
• Accounting/bookkeeping: $500-$2,000/year
• Bond premiums: 1-2% of assets annually
• Attorney fees for court reports: $500-$1,500/year

These costs typically come from your parent's assets, not yours.

Guardian Responsibilities

Being a guardian is a serious legal responsibility with court oversight.

Guardian of the Person Must:

• Ensure proper living arrangements
• Arrange for medical care and make treatment decisions
• Ensure daily needs are met (food, clothing, hygiene)
• Maintain regular contact with the ward
• Report to the court annually on the ward's condition
• Seek court approval for major decisions (moving to nursing home, major surgery)

Guardian of the Estate Must:

• Create and maintain an inventory of all assets
• Manage finances prudently and in the ward's best interest
• Pay bills and manage debts
• Keep detailed records of all transactions
• File annual financial accountings with the court
• Seek court approval for major transactions (selling property, large expenditures)
• Never mix personal funds with the ward's funds

Alternatives to Guardianship

Before pursuing guardianship, explore less restrictive options:

Representative Payee (Social Security)

If your parent receives Social Security and can't manage the payments, you can apply to become their representative payee. This gives you control over only their Social Security benefits—not other assets.

VA Fiduciary

Similar to representative payee, but for veterans' benefits.

Joint Bank Accounts

Adding your name to bank accounts allows you to pay bills, but gives you no authority over healthcare or other decisions.

Trusts

If assets are in a trust with a successor trustee named, the trustee can manage those assets without guardianship.

Supported Decision-Making

Some states recognize agreements where a person with cognitive challenges designates supporters to help them make decisions while retaining their own authority.

Talk to Your Parent Now

The best alternative to guardianship is prevention. If your parent is still competent, help them establish:

• Durable power of attorney for finances
• Healthcare proxy/medical power of attorney
• Living will/advance directive

When Family Members Disagree

Contested guardianships are common and painful. Disputes arise over:

• Whether the parent is actually incapacitated
• Who should serve as guardian
• Where the parent should live
• How assets should be managed

If You're the Petitioner

• Document specific examples of incapacity
• Gather medical evidence supporting your concerns
• Be prepared for the process to take longer and cost more
• Consider mediation if family members are open to it

If You Object to Someone Else's Petition

• File a formal objection with the court
• Get your own attorney
• Gather evidence supporting your position
• Consider whether you should petition to be guardian instead

After You're Appointed

Immediate Steps

1. Get certified copies of your letters of guardianship
2. Notify banks, doctors, and other institutions of your authority
3. Complete asset inventory (for estate guardianship)
4. Set up record-keeping system for all transactions and decisions
5. Post any required bond

Ongoing Requirements

• Visit your parent regularly and maintain relationship
• Make decisions in their best interest, not yours
• File required court reports on time
• Seek court approval before major decisions
• Keep meticulous records

Ending Guardianship

Guardianship ends when:

• The ward dies
• The ward regains capacity (rare, but possible after recovery from stroke or mental health crisis)
• The guardian resigns and a successor is appointed
• The court removes the guardian for cause

Frequently Asked Questions

Resources

• National Academy of Elder Law Attorneys: naela.org - Find an elder law attorney
• National Guardianship Association: guardianship.org - Information and resources
• State bar associations: Lawyer referral services
• Area Agency on Aging: eldercare.acl.gov - Local resources and guidance