As a child, one of the most difficult moments is the moment when you realize your parent can no longer safely care for himself/herself because of physical and/or mental incapacity. Watching a parent’s physical and/or mental health deteriorate can be excruciatingly painful. After all, this is the person who cared for you when you were a child…who taught you everything you know…who kept you safe from harm. Now, you may need to care for your parent and keep him/her safe from harm. What exactly does that mean though? How much care does your parent require? Does you parent need to be in a long-term care facility? Most importantly, how do you know when it’s time to pursue guardianship for your parent? Unfortunately, none of these questions are easy to answer and they all depend on the individual facts and circumstances; however, some general guidelines may help you recognize when it’s time to consult with an experienced estate planning attorney to consider the possibility of pursuing guardianship over your parent.
What Is Guardianship?
Guardianship is a legal relationship that allows the guardian to make decisions for the incapacitated person (person in need of a guardian) and/or control the estate of the incapacitated person. The type of guardianship, and the extent of power the guardian has, are both determined by a judge based on the needs of the incapacitated person. In New Hampshire, for example, you could be appointed a Guardian of an Incapacitated Person and then be given authority over the person, the estate of the person, or both. As the guardian of the person you might make decisions such as:
- Where the incapacitated person lives.
- What doctors can treat the incapacitated person.
- Whether the incapacitated person is allowed to drive.
As a guardian of the estate of an incapacitated person you might be given the authority to do things such as:
- Pay bills of the incapacitated person
- Sell property owned by the incapacitated person
- Receive and cash retirement or Social Security checks
Because guardianship is considered the most restrictive option for an individual who is suffering physically or mentally, courts generally consider whether other, less restrictive, options would suffice. Less restrictive options might include family members helping out, home health aides, or even a move to a long-term care facility without guardianship.
Signs that Guardianship May Be Necessary
Each state determines its own criteria for deciding when a guardianship is warranted. In New Hampshire, for example, according to the New Hampshire Judicial Branch “Guardianships of incapacitated persons are established when the court determines that the functional limitations of an individual have declined to the point where that individual’s ability to participate in and perform minimal activities of daily living is not present. Estate Guardianships of incapacitated persons are established when the court determines that a person’s ability to understand and make decisions relative to financial matters is not present.” As an adult child it may be difficult to decide when your parent has reached the point at which a guardian is needed. It is always best to consult with an experienced estate planning attorney as soon as you begin to suspect that your parent is at risk of injury or victimization as a result of incapacity. Some common signs that this is the case include:
- Frequent and unexplained injuries
- Failure to take medications as directed
- Loss of memory relating to common subjects, such as the name of close family members
- Failing health without any medical explanation
- Bills piling up unpaid and/or disconnection of services
- Extreme weight loss
- Deteriorating hygiene
- Extreme mood swings
- Missing assets and/or funds missing without explanation
When it comes to the possibility that a guardian is needed, the old adage “better safe than sorry” definitely applies. While you may be reluctant to pursue guardianship because you fear you are taking away your parent’s independence, failing to step in could lead to serious injury or victimization by predators who intentionally prey on the disabled and elderly. Starting a conversation about guardianship with your estate planning attorney ensures your parent’s safety as well as the safety of his/her hard earned assets.
Contact Us
If you have additional questions or concerns regarding guardianship, or would like to discuss the possibility of petitioning for guardianship of a parent, contact the experienced New Hampshire estate planning attorneys at Debruyckere Law Offices by calling (603) 894-4141 or (978) 969-0331 to schedule an appointment.
Daniel DeBruyckere
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