The process of aging is not something anyone looks forward to; however, for an adult child, it can be even harder to accept the fact that a parent is also getting older. For many adult children, there comes a time when the aging process causes a role reversal – the parent becomes the child and vice versa. This role reversal can happen fairly rapidly and noticeably if a parent is suffering from Alzheimer’s or another age-related dementia disease. It can also come on slowly as a result of the natural again process that causes both physical and mental deterioration. If you find yourself spending more and more time worried about, and caring for, an aging parent, it may be time to consider legal guardianship. In this segment of Beverly Elder Law Topics, we will explore and discuss how to decide if guardianship is the best solution in your situation.
What Is Adult Guardianship?
Adult guardianship is a legal arrangement whereby a person or organization is appointed by a court to act as a “Guardian” for an adult who has been determined to be in need of one due to the person’s incapacity. In New Hampshire, 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. This is known as a Guardianship of the Person. 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 (also referred to as Guardianship of the Estate). As is the case in most states, New Hampshire allows you may petition to be either, or both, types of Guardian.
When Is Guardianship the Best Solution?
Most states, including New Hampshire, require a court to find the least restrictive solution when an adult is in need of court intervention. Specifically, New Hampshire requires a Petitioner to can prove “beyond a reasonable doubt” that “the proposed ward is unable to provide for basic needs of food, shelter, clothing, health care, safety, and/or is unable to manage financial affairs. The petitioner must be able to prove that the proposed ward is incapable of making an informed choice not to provide for these needs, and must also prove that the proposed ward will, or has come, to substantial harm as a result of the incapacity. Finally, the petitioner must be able to prove that there are no other available solutions that would impose fewer restrictions on the proposed ward.” To convince a court that guardianship is warranted you will need to provide evidence that causes a court to agree that the proposed ward (in this case your parent) is in need of a Guardian. Specifically, you will need to provide examples of the proposed ward’s inability to provide for food, shelter, health care, safety, or an inability to manage his/her financial affairs. These examples must have occurred within the last six months and one of the incidents must have occurred within 20 days of the filing of the petition.
Deciding to Pursue Guardianship
Making the decision to pursue guardianship over a parent is often not easy. Many adult children feel that by petitioning to become their parent’s Guardian they are taking away their parent’s independence. If you find yourself feeling that way, try to remember that your goal is not to take away your parent’s freedom but to protect your parent from injury and/or financial loss that could occur if you fail to step in and become Guardian. If you remain undecided about the best course of action, consult with an experienced Beverly elder law attorney to discuss your legal options.
Contact a Beverly Elder Law Attorney
For more information, please download our FREE estate planning worksheet. If you have additional questions or concerns about guardianship, contact the experienced Beverly elder law attorneys at DeBruyckere Law Offices by calling (603) 894-4141 or (978) 969-0331 to schedule an appointment.