Aging is a natural process. However, it can be difficult for the children of elderly people to watch their parents enter the later stages of life. While many older people can manage their daily routine without a problem, others unfortunately lose the ability to properly care for their own well-being.
When this happens, adult children may wonder what their legal options are for taking care of their parents. State laws allow children to take a guardianship role over parents who are legally incapacitated. This allows a child to make key decisions concerning property and medical care on behalf of their parent.
A guardianship order may be necessary to ensure proper comfort and care for elderly parents. An experienced attorney can explain the processes behind obtaining a guardianship and what this role means for parents and children.
A guardianship is a legal relationship between two people. As a general rule, an individual has the authority to make decisions about their own life. However, life circumstances may arise that make a person incapable of making these decisions.
The creation of a guardianship gives another person the ability to make decisions on behalf of an incapacitated adult. The guardian then has a duty to make decisions that serve only the best interests of their ward. Any capable party may serve as a guardian, but adult children are usually primary candidates.
Only a court can create a guardian relationship, and it will not do so unless absolutely necessary. The legal process begins with a party requesting guardianship powers over another. This request must include information about both the petitioner and the subject.
One key piece of evidence is a multidisciplinary evaluation. This evaluation will contain notes from medical professionals that speak to the subject’s physical and mental health, as well as their ability to care for their own well-being and affairs. According to North Carolina General Statutes § 35A-1111, the court will likely require the completion of this report as part of a guardianship petition. If these reports indicate a severe decline in the subject’s ability for self-care, the court may appoint the petitioner as a guardian.
In simple terms, a guardian has full control over the life of the subject. A successful petitioner will receive paperwork from the court that grants permission to act as the guardian and gives legal notice to all relevant parties about the existence of this relationship.
One of a guardian’s abilities is the full power to sell and purchase property on behalf of the subject. In addition, the guardian may take control over bank accounts and can pay bills or other debts.
Another vital function of a guardian is to make medical decisions. If the subject of the order does not have a Living Will, the guardian can make decisions concerning medical care, potential treatment options, and resuscitation intervention. Essentially, a guardian has broad powers to act on behalf of a subject.
Making the decision on whether to seek a guardianship over an unwell parent is never easy. Children who are looking to serve in this capacity must understand the significant responsibility that comes along with the role. They should also seek legal advice on navigating the processes for obtaining this power.
The court will only create a guardianship if it believes that a person is unable to care for their own affairs. Usually, this requires obtaining healthcare records and opinion letters from medical professionals. Once a person becomes a guardian, they must act in the best interests of the subject.
Children often know best about what their parent needs and what they would want if they were able to make their own decisions. Call a knowledgeable attorney for more information about how children may seek guardianship over their parents.
Paul Yokabitus is the CEO and Managing Partner of Cary Estate Planning, a Cary, NC, estate planning law firm. With years of experience in estate and elder law, he has zealously represented clients in various legal matters, including estate planning, guardianship, Medicaid planning, estate administration, and other cases.
Paul received his Juris Doctor from the Campbell University School of Law and is a North Carolina Bar Association member. He has received numerous accolades for his work, including being named among the “Best Attorney in Cary” in 2016 and 2017 by Cary News and Rising Star in 2020-2023 by Super Lawyers.