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Guardianship FAQ/Importance of Advance Directives

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By Shelby Thompson, Certified Senior Concierge Care Advisor

If a senior has dementia and can’t live independently or otherwise cannot manage their finances or make their own health care decisions, they may need Guardianship. This process of appointing a senior a legal guardian is in response to petitions made through the courts. Given this is a taxing restrictive path, it should be the last result after exploring other alternative options, such as executing a Durable Power of Attorney (DPOA). DPOA unfortunately cannot be notarized if the senior is deemed to be in a non-decisional capacity by a physician. The process of Guardianship can take months to go through the courts and appoint someone; this is why it is so important to have the conversation about advance directives with a loved one before their cognition becomes impaired and it may be too late to do so.

If a senior ends up at the hospital, their legal next of kin can assist in making medical decisions for them; however, that family member is legally not permitted to decide (without a prior DPOA in place) for that senior to permanently reside in a senior housing community, such as an assisted living, memory care, or adult family home for risk of potential exploitation against which they cannot defend themselves. We have unfortunately seen cases of this, where a senior has had to stay at the hospital for the months of Guardianship duration because they are not safe to return to their previous living arrangement and unfortunately, no DPOA has been executed before that senior has dementia and now lacks the ability to make decisions. Even if a spouse or child of a senior has already been the long-term caregiver and provider, they do not have the legal authority to decide where their loved one can transition to and will have to be appointed as legal Guardian to have the power to organize and manage the senior’s affairs.

One does not have to be an immediate family member to be appointed Guardian, another relative or friend can also, or any suitable person over the age of 21. If there is no one in a senior’s life that would elect to be appointed, there are certified professional Guardianship offices as well.

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