Elder Law – Planning for these chapters of life in advance can bring peace of mind and provide for your future, and that of your family. Elder law has been designed to protect senior citizens as they enter a vulnerable season of their lives as well as provide access to vital programs including Medicare and Medicaid. However, it remains a highly complicated area of law and the importance of consulting with a qualified attorney with solid background in elder law is essential. Many aspects of a senior’s life bring about the need for added protection such as knowing the signs of financial elder abuse, or when it is time to consider assisted living, either for yourself, your spouse, or a family member. The laws surrounding elder law vary from state to state.
Guardianship (also known as conservatorship) is a process wherein the court legally determines that a person (or ward) does not have the ability to make or communicate sound and safe decisions regarding their property, due to lack of capacity or susceptibility to fraud or undue influence and thereby assigns another person (the guardian) to manage the ward’s affairs. Often, guardianship is sought to protect minor children or adults who are in an incapacitated state. The decision to petition the court for a guardianship is a complicated and carries a high degree of responsibility as the guardian assumes a level of liability. It is recommended that guardianship only be pursued after careful consideration and consultation with an experienced attorney. Given our country’s rapidly increasing geriatric population, the laws surrounding guardianship have nexus to the laws surrounding the elderly (Elder Law). Guardianship law varies from state to state, and may be further broken down in some case to “Guardian of a Person” versus “Guardian of an Estate”, and can be issued on a full or limited basis.
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Brenda K. Uekert and Thomas Dibble write the following in their joint paper Guardianships For the Elderly: Past Performances and Future Promises: “due to the seriousness of being incapacitated and the loss of individual rights, guardianships are considered to be an option of ‘last resort.’ The court can order either a full or limited guardianship for incapacitated persons. Under full guardianship, wards relinquish all rights to self-determination and guardians have full authority over their wards’ personal and financial affairs.”