When do you need a guardian?

Situations sometimes arise – some foreseen, some not – when it’s necessary to have the court appoint a guardian.

Whether you have an elderly parent or a special needs child, the process can seem daunting, and that’s the reason why so many put off the task. The consequence of putting it off until “sometime in the future when you really need it” is that there will come a time when you wish you had done it sooner.

Most often, guardianship becomes necessary when children are about to turn 18, and they have disabilities or medical conditions that will prevent them for making decisions for themselves. Parents usually recognize this day is coming, and most prepare in advance of that turning point to file immediately for guardianship. Although parents usually take on guardianship responsibility, on rare occasions another family member might do so.

At Spector Foerst & Associates, we handle many of these cases, typically when parents come to us for assistance, but also when we are court-appointed to take a case.

If you have child about to turn 18, with a disability that prevents him or her from understanding legal, medical and financial decisions, it’s time to discuss guardianship with your family. We recommend consulting an attorney to start the process at least three months prior to the child’s 18th birthday so you can familiarize yourself with the requirements and have the paperwork ready to be filed.

The process begins with filing an application with the court in the county where you live. Resources are available to help parents apply on their own, but most often parents hire an attorney to prepare and submit the application on their behalf, along with two doctors’ certificates, asking the court to declare the child incapacitated.

Why is it important to get a head start? Because you will need a determination of guardianship from the court to apply for Social Security disability benefits – benefits for which the child is eligible at age 18. The application requires certifications from at least two doctors, and the process itself takes time.

It’s also time to discuss guardianship with your family if an elderly parent or family member is suffering or has suffered an incapacitating event that prevents him or her from making decisions or handling finances, legal or medical care. They might have become incapacitated as a result of a stroke, Alzheimer’s disease, mental illness, an automobile crash, or some other catastrophe.

If you are unsure about whether guardianship is the right next step, consult an attorney.

Once you have determined that guardianship is the right next step, the formal process is the same as filing for an incapacitated18-year-old – it begins with filing the appropriate paperwork with the court in your county. The paperwork includes an application to the court to declare that your loved one needs a guardian and requires doctor certifications as to the loved one’s medical condition. We can help you navigate all of the needed paperwork and will file the completed application on your behalf.

There is a possibility of contention. Conflict can arise when another family member – a parent, spouse, sibling or child – wishes to be guardian. The issues can be complex; this is where an experienced Spector Foerst & Associates attorney can step in guide you through the process.

One way to avoid contention, especially in a case involving a guardianship for parents, is to have each parent execute a power of attorney while still lucid and able to do so. We are frequently able to help in these cases when the parent is still able to make decisions – a Spector Foerst & Associates attorney will work with the client on estate planning, including a power of attorney, that legally establishes the parent’s wishes.

If a parent is going into assisted living, or into a nursing home, or even if the parent is just getting on in years, a power of attorney and a living will enable them to dictate their wishes with regard to finances and medical care. This process is less time-consuming and less expensive than establishing a guardianship later on – especially if the application winds up in litigation.

When an individual is no longer able to come in or understand what he or she is signing, or is physically unable to sign, or has no memory because of Alzheimer’s disease or some other form of dementia, it is necessary to pursue a guardianship through the court.

As with a disabled child turning 18, at least two doctors must certify that the individual is incapacitated. A complaint is filed, triggering a court hearing; the judge hears witnesses, ultimately determines the individual is incapacitated, and appoints the guardian deemed best-suited for the role. The process takes longer than estate planning, and incurs more attorneys’ fees.

Spector Foerst & Associates advises clients to plan their estates well before they reach the point of incapacity. If you sense you are failing, or if you see that your parent is beginning to fail, we urge you to seek legal guidance in planning for the future before full incapacitation occurs.

Get ahead of the process – before a disabled child turns 18, before a parent suffers loss of capacity – get the ball in motion. Although parents cannot file before an incapacitated child turns 18, it’s important to become familiar with process, aware of what you need to do and be ready to act.

To learn more,give us a call to set up a free initial consultation with one of our expert attorneys. We’ll explain what you can expect and what you can prepare in advance – and then guide you through the process.


Posted on November 27, 2019