At some point in your life, you may be faced with deciding how to handle a parent who has become incapable of caring for herself or himself. This may be due to a physical incapacity, a mental incapacity, or both. When the child becomes the parent, it can be a confusing and complicated situation. Not only must you make a difficult decision to step in, but there are legal steps that must be taken as well.
Often, when an adult child is required to step in to take over legally for a parent, it feels as though you are taking away your parent’s independence. The decision is never easy, but must be made if necessary. Once you have determined that your parent is not capable of managing his or her own affairs, you will need to seek a court appointed guardianship, conservatorship, or both. Individual states determine both the scope of a guardianship or conservatorship as well as the process by which one may be obtained. In most states, however, a guardianship allows you to make decision over the person of the ward, in this case your parent, while a conservatorship allows you to make decision regarding the estate of the ward. As conservator, for example, you may be able to become the beneficiary of any income or benefits, such as Social Security retirement or disability, owed to your parent. As guardian, you may be able to decide where your parent will live or what doctor he or she will be treated by.
In order to become guardian or conservator, you must petition the appropriate court. You will also need to give notice to any interest parties, including your parent. The court will then conduct a hearing to decide if your parent does, indeed, need a guardian or conservator. If the court agrees that appointment of a guardian and/or conservator is warranted, then the court will decide whether you are a suitable guardian or conservator. Seek the advice of an experienced estate planning attorney if you see the need to become the guardian or conservator over a parent.
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