The Circle of Life: Obtaining Guardianship of an Aging Parent

By: Robert B. George, Esquire

As the child of an aging parent, you will likely find yourself having to deal with a parent who is losing his/her ability to care for himself/herself and make appropriate decisions, due to various infirmities associated with aging. This challenge occurs more and more frequently as people live longer and the rate of Alzheimer’s disease and dementia continues to increase. In addition to the emotional trauma, you will also have to deal with some difficult and practical realities, especially if your aging parent is living alone.

In that regard, you may find yourself confronted with certain situations that may be indicative of a parent that is failing in various respects due to aging.  For example, you may find that your parent is not paying bills, is forgetting your name or the names of other individuals that are very familiar and close to them, or forgetting to take  prescription medicines. These and other potentially more serious situations leave your parent not only vulnerable and at risk to himself or herself, but also to unscrupulous people that prey upon the aging members of our society.

You may find that your parent is unable to make rational decisions about their life, or even to participate in discussions about issues affecting them, in which case it may be time for you to seek the appointment through the courts of a legal guardian. This is especially true if your parent refuses to cooperate with reasonable measures or requests to provide for their day-to-day care, such as moving into assisted living or a nursing home when they need that increased level of care and attention. If your parent is at a point that he or she is not longer capable of signing a legally valid power of attorney or an advanced directive/living will, they may be in need of a guardian.   While the appointment of a guardian, which necessitates a finding on the part of the court that your mom or dad is incapacitated, does remove certain legal rights, this option may be necessary to ensure their continued safety and welfare.

In order to have a guardian appointed for your aging parent, you  need to file a petition with the appropriate court – usually the Orphans’ Court of the Court of Common Pleas in your parent’s county of residence in Pennsylvania. A petition for guardianship is essentially a request, based upon the submission of appropriate medical evidence, to find your parent to be an incapacitated person, which is a rather significant legal adjudication that a judge will not pronounce without a finding of clear and convincing evidence. In order to prevail, an expert medical opinion is required.  You should also be prepared to present testimony and other evidence that clearly shows everything about your parent that you believe indicates he or she is no longer capable of handling their own affairs.

Once the court has determined that your parent is incapacitated and, therefore, in need of a guardian, the best person to serve as that guardian must be determined and appointed. If your family is not in agreement, emotions can run high, which may unduly delay the process, thereby leaving your parent in a dangerous living situation while various interested family members and their attorneys argue. That also makes the process more expensive. Moreover, your parent also has the right to object to the entire process and to hire their own lawyer.

If you are appointed as the guardian of your parent, a fiduciary relationship is  created between the two of you.   As a result, you are legally responsible for your parent, and under the obligation to place their best interests above your own.  Generally speaking, you become responsible and accountable to the court for all of your actions as the guardian for your parent.

For example, as the appointed guardian for your parent, you must decide what living arrangements are best suited to their current and ongoing needs. You will also be in control of their money, and will have to establish new financial accounts by which to properly handle finances on their behalf, and for their benefit. You must also make certain that they receive appropriate medical care, and follow any doctor’s orders. If necessary, you have the right, and perhaps the obligation, to make arrangements for placement into a nursing home if necessary, as well as possibly making end-of-life decisions on their behalf.  You will want to be sure to be certain to maintain receipts for everything you purchase with their money, as you will need to account to the court on a periodic basis, and may be called upon by the court to answer for any potentially suspicious or otherwise questionable actions and/or expenditures of money.

If you find yourself in need of or otherwise involved with the guardianship of an aging parent, it is important that you consult with a qualified attorney who has experience with such matters.

The attorneys at the Law Firm of DiOrio & Sereni, LLP are experienced and available to help you. Contact Robert B. George, Esquire at 610-565-5700, or send him an e-mail at [email protected].

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