Legal and Financial Planning - Guardianship Proceedings

Alzheimer's Foundation of America

An individual with Alzheimer's disease or a related dementia may no longer have the capacity to sign important legal documents such as a living will, health care proxy and a power of attorney. The alternative is a guardianship proceeding.

Definition: A guardian is a person, institute or agency appointed by a court to manage another person's affairs.

Laws vary by state, but in most areas it must be demonstrated that the person with a disability lacks the capacity to understand or communicate decisions involving personal and financial matters. The proceeding is a legal process wherein an individual sues another individual for the legal right to make decisions regarding his "person" and "property."

The main players in the guardianship proceeding are the petitioner alleging that the individual is incapacitated, the alleged incapacitated person (AIP), the court evaluator and the psychiatrist. Generally, although not required, the petitioner will arrange for a psychiatric evaluation of the AIP prior to commencing a guardianship proceeding.

There is a great amount of time spent in court evaluating the AIP to determine whether guardianship is appropriate, and, eventually, to map out a proper plan of care for the individual. The court scrutinizes all of the actions of the guardian, including the management of the individual's personal financial affairs, and decisions regarding medical treatments and long-term care. Some states even require a potential guardian to take a court-approved class in order to learn about their responsibilities.

Note:Discuss the matter with a few elder law attorneys in your area before deciding whether to enter into a lengthy and costly guardianship proceeding. On average, this proceeding can take between four months and one year, and it can often be adversarial between family members with differing opinions on what constitutes proper care.

Contributed by Michael DiMauro, Esq., president of the board of directors of the Alzheimer's Foundation of Staten Island, Staten Island, NY.

©2007 Alzheimer's Foundation of America. All Rights Reserved.


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