An elderly guardianship is created when a court appoints someone as the legal guardian for an elderly person who is incapacitated in some way. In most guardianship cases, the elderly person is no longer able to make decisions about his or her medical treatment, living conditions, dependents, and financial issues. A court may choose to limit this guardianship to certain areas, however. For example, if an elderly man is able to make decisions about finances but can no longer physically care for himself, the court may limit the guardianship to overseeing the man’s physical needs.
Usually, a guardian is a family member or friend of the elderly person. In the event that a friend or relative does not wish to become the person's legal guardian, a public or private agency, attorney, or other court-appointed individual can also serve. Typically, it must be a competent person over the age of 18, without a criminal record.
An elderly guardianship appointment is generally made once a court has determined that an elderly person is incompetent. The specific requirements for incompetency vary from jurisdiction to jurisdiction. As a general rule, however, whether a person is legally competent or not hinges on his ability to make informed and educated decisions about his affairs. Another influencing factor is whether the person is able to meet his physical needs. If not, the person may need to be placed in a nursing home or other care facility, such as an adult daycare center.
Before a case goes in front of a court, a petition requesting the appointment of the guardian is typically filed. The court then grants a hearing to determine if the elderly person is incompetent and to decide who will serve as a guardian. During the hearing, a judge usually listens to testimony about the nature of the elderly person’s disability and how that disability influences the person’s capacity to make reasonable decisions. The judge may also appoint a guardian ad litem, a person who evaluates and testifies about the elderly person’s mental conditions, physical state, and social skills. Elderly guardianship proceedings can take up to three months.
This form of guardianship can be terminated or modified by a court. Usually, this is done when the elderly person demonstrates that he or she has regained capacity to make informed and educated decisions. A guardianship may also be modified if a current legal guardian becomes unwilling or unable to continue to serve in this role.