What is it called when you make decisions for an elderly parent?: Understanding the Legal Terms

According to the Department of Justice, guardianship is a last resort when less restrictive alternatives are unavailable. Many family caregivers, however, are simply asking a basic question: What is it called when you make decisions for an elderly parent? The answer depends on your parent's mental capacity and the legal authority granted to you, ranging from a power of attorney to court-ordered guardianship.

Quick Summary

Decisions for an elderly parent are typically made under a Power of Attorney (POA) if they are competent, or through court-appointed Guardianship or Conservatorship if they are incapacitated. The specific term depends on the scope of decisions (financial, medical) and the method by which authority was granted.

Key Points

• Power of Attorney (POA): A voluntary legal document where a parent appoints an agent to make decisions. A Durable POA is vital as it remains effective after incapacitation.

• Guardianship/Conservatorship: A court-appointed role for making decisions for an incapacitated parent. Guardianship often covers personal care, while conservatorship handles finances.

• Timing is Key: Establishing a POA while a parent is still competent avoids the lengthy and expensive court process of obtaining guardianship later.

• Fiduciary Duty: Anyone acting as an agent under a POA or as a court-appointed guardian has a legal obligation to act in the parent's best interests, not their own.

• State Laws Vary: Terminology and procedures for guardianship and conservatorship differ significantly by state, so consulting an elder law attorney is crucial.

• Supported Decision-Making: A less restrictive alternative to guardianship that allows a person to receive assistance in making their own choices.

Making Decisions for an Elderly Parent: Power of Attorney

When an elderly parent is mentally capable, they can grant another person legal authority to act on their behalf through a Power of Attorney (POA). This voluntary document designates a trusted individual (the "agent") to make decisions for the parent (the "principal"). A POA is a proactive approach to planning ahead.

Types of Power of Attorney

Understanding the specific type of POA is essential, as it defines the scope of your authority.

Durable Power of Attorney

A durable power of attorney (DPOA) remains effective even if the parent becomes incapacitated. This is crucial for managing finances and healthcare if a parent develops a condition like dementia.

• Financial DPOA: Grants the agent authority over the parent's financial affairs, including managing accounts and paying bills.
• Medical DPOA (Healthcare Proxy): Authorizes the agent to make healthcare decisions if the parent is unable to. This is often part of an advance directive.

The Role of an Agent

As an agent under a POA, you act as a fiduciary, legally and ethically bound to act in your parent's best interest. This includes careful management of their assets and keeping records. Misusing their assets can lead to legal consequences.

Guardianship and Conservatorship: When the Court Steps In

If an elderly parent becomes incapacitated without a durable power of attorney, a court may appoint someone to make decisions for them. This is typically a last resort because it limits the individual's rights. State laws determine the specific terms used for this court-appointed role.

Guardianship

In many states, guardianship involves a court-appointed individual (the "guardian") making personal decisions, such as living arrangements and medical care, for an incapacitated person (the "ward"). Court oversight and reporting are usually required.

Conservatorship

A conservatorship, in some states, is established specifically to manage the financial affairs of an incapacitated person. The court-appointed "conservator" handles assets and finances. Some states use "guardian" for both personal and financial roles, while others differentiate.

Power of Attorney vs. Guardianship: A Comparison

Aspect	Power of Attorney (POA)	Guardianship/Conservatorship
Source of Authority	Voluntarily granted by the elderly parent while competent.	Court-ordered appointment due to incapacitation.
Timing	Created and signed proactively before a crisis occurs.	Initiated after the person has already become incapacitated.
Cost	Generally lower, involving attorney or document fees.	Significantly higher, due to court, legal, and other administrative fees.
Level of Oversight	Limited court oversight; primarily managed by the agent and family.	High court oversight, with regular reporting requirements.
Flexibility	Allows for specific powers and customized terms.	Authority is determined by the court order.

How to Initiate the Conversation and the Process

Discussing decision-making is challenging but crucial for proactive planning. Waiting until a parent is incapacitated complicates the process.

1. Start Early: Discuss options with your parent while they are capable, emphasizing their control over future decisions.
2. Gather Information: Understand their wishes regarding medical care and finances.
3. Consult an Elder Law Attorney: An attorney can help draft appropriate legal documents according to state laws.
4. Communicate with Family: Open discussions with family can prevent future conflicts.
5. Store Documents Securely: Ensure original documents are accessible, and relevant parties have copies.

Considerations for Challenging Family Dynamics

In families with existing tensions, appointing a neutral professional fiduciary can help avoid conflicts. If abuse or neglect is suspected, guardianship may be necessary to protect the parent.

Conclusion

Making decisions for an elderly parent involves various legal considerations. A durable power of attorney is the preferred, less restrictive method for competent parents. If incapacitation occurs without this planning, guardianship or conservatorship becomes necessary through a court process. Proactive planning ensures a parent's wishes are respected and their well-being is protected.

For additional resources on advance directives and legal planning, consult the National Institute on Aging's guide: https://www.nia.nih.gov/health/advance-care-planning/advance-care-planning-advance-directives-health-care.

Supported Decision-Making and Alternatives

Supported decision-making is an alternative to guardianship where an individual retains their decision-making rights but receives assistance from trusted persons. While often used for individuals with intellectual disabilities, it's gaining recognition in elder care.

The Legal Capacity to Make Decisions

A parent's legal capacity is key in determining the need for a POA or guardianship. Capacity can be partial; they may need help with some decisions but not others. A physician's assessment of incapacity is often required before pursuing court-appointed guardianship. The court evaluates evidence to determine the level of incapacity and the scope of authority granted to a guardian.

Frequently Asked Questions

Is a power of attorney the same as guardianship for an elderly parent?

No, they are different. A power of attorney (POA) is a voluntary document a parent creates while competent, appointing an agent. Guardianship is a court-ordered process that appoints a guardian for an incapacitated parent.

Can I get power of attorney for my parent if they have dementia?

For a POA to be valid, the parent must be mentally competent at the time of signing. If your parent is already experiencing significant cognitive decline, you may need to pursue court-ordered guardianship.

What is a healthcare proxy?

A healthcare proxy, also known as a medical power of attorney, is a document that designates a person to make medical decisions for an individual if they are unable to communicate their wishes. This is a crucial part of an advance directive.

What is a conservatorship for an elderly parent?

A conservatorship is a legal arrangement where a court appoints a conservator to manage the financial affairs and assets of an individual who is unable to do so for themselves. The term is sometimes used interchangeably with guardianship depending on the state.

What is the process to get guardianship of an elderly parent?

The process involves filing a petition with the court, providing medical evidence of incapacitation, notifying family members, and attending a court hearing. A judge will ultimately decide if guardianship is necessary.

What is the difference between a guardian of the person and a guardian of the estate?

In states that make this distinction, a guardian of the person makes personal care decisions, such as where the parent lives, while a guardian of the estate (or conservator) manages the parent's finances and property.

What are some alternatives to guardianship?

Alternatives to guardianship include creating a durable power of attorney (financial and medical), setting up a trust, or using a supported decision-making agreement. These are typically less restrictive and less expensive than a court process.