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When Is Guardianship Needed For Your Elderly Family Member?

When Is Guardianship Needed for Your Elderly Family Member?

It’s normal for families to help out their elders with everyday tasks that might prove difficult with age. But in some circumstances, your elderly loved one may need help with far more serious matters. When someone is affected by medical conditions such as Alzheimer’s or other symptoms of aging, their ability to make decisions for themselves might be compromised. When it comes to important medical and financial choices, the capacity to make decisions becomes a legal matter. When someone lacks capacity, guardianship might be necessary. This could be the case if an individual did not plan in advance by appointing an agent to make financial or heath care decisions by executing a Durable Power of Attorney or a Health Care Surrogate Designation, respectively.  These advance planning steps can eliminate the need for a guardianship.

What is Capacity?

“Capacity” refers to a yes or no judgment by a clinician or other professional as to whether an individual can perform a specific task (such as driving or living independently) or make a specific decision (such as consenting to health care or changing a will), according to the Oxford Academic.

How is Capacity Determined?

How do you know if your loved one has capacity or not? It must always be assumed that someone is able to make a decision for themselves until it is proven that they cannot. The law says that the only way to establish capacity is to do a test or assessment to find out whether a person has the ability to make a particular decision at a particular time.

The mere existence of physical or mental illness does not mean that a patient lacks capacity. Rather, capacity is usually task-specific. Capacity is determined by whether an individual has specific abilities, regardless of a diagnosis. Specific capacities include the ability to give informed consent, manage finances, make a will, or enter into contracts, according to MD Edge Psychiatry. There are four components generally used for determining capacity:

  1. Communication of a choice
  2. Factual understanding of the issues
  3. Appreciation of the situation and its consequences
  4. Rational manipulation of information.

Using these components, MD Edge Psychiatry notes three specific capacities often discussed when dealing with financial and medical matters:

  1. Capacity to give informed consent.

The individual must:

  • Understand the risks and benefits of treatment
  • Understand treatment alternatives
  • Understand the risk of refusing treatment
  1. Testamentary capacity

The individual must:

  • Understand that he/she is making a will
  • Know the nature and extent of their property
  • Understand the “natural objects” of their bounty and their claims upon them
  1. Contractual capacity

The individual must:

  • Understand the transaction
  • Act in a reasonable manner

What If Your Loved One Does Not Have Capacity?

When an individual is determined to not have capacity, it’s normal for a guardian to be appointed to take charge of medical and financial decisions.

What is Guardianship?

Adults are presumed to be legally competent unless they are declared by a court to be incompetent (incapacitated) or incapable of caring for themselves.

Guardianship is a formal legal action for substitute decision making. A guardianship action is an involuntary proceeding and may be established over the opposition of the incapacitated person. Since there is no federal law governing guardianship, state law applies to guardianship actions. The substance of these laws, including the legal standards for determining incapacity, varies considerably among states, according to AgingWell.

How is Guardianship Appointed?

If a judicial determination of incapacity is made, the court may appoint a “guardian of the person” to make personal choices such as living arrangements and health decisions, a “guardian of the property” to manage the incapacitated elder’s estate and finances, or a “plenary guardian” with power over both the person and the estate. The court may also order a limited guardianship.

Courts are increasingly recognizing the concept of limited guardianship, in which the subject of the guardianship action is found to be an incapacitated individual and a guardian is appointed. But the guardian’s powers are limited to those areas in which the incapacitated person does not retain decision-making capacity.

The use of limited guardianship is generally more prevalent in cases involving the developmentally disabled, as opposed to older adult clients suffering from dementia or Alzheimer’s disease, according to AgingWell.

What if You Suspect Abuse?

Sometimes, elders might be falsely deemed incapacitated. This is a serious issue. If you suspect this, contact an elder law attorney to review your loved one’s case and help explain your loved one’s rights.

How Can We Help?

Do you need help proving the need for guardianship so that your loved one’s financial and medical well-being is protected? Or maybe you need help proving the opposite – that your loved one does have the capacity for essential decisions? Do you suspect mistakes or unlawful behavior in a situation involving your loved one’s capacity? When it matters the most, count on the legal team who cares. Contact our St. Petersburg office at (727) 565-4250 or online.


Baby Boomers’ Barrister

100 2nd Avenue S.

Suite 206N

St. Petersburg, FL 33701

(727) 565-4250