If your loved one is suffering from dementia, it may be necessary to obtain Legal Guardianship over them so that you may take the appropriate measures to ensure that they receive the care they need.

Legal Guardianship involves having your loved one declared mentally incapacitated because they are unable to manage their own affairs.  The person who is appointed Legal Guardian has the legal authority and responsibility to ensure that the person who is incapacitated is provided the care they need for their health and safety as well as to ensure that their rights are protected.

This article will help you determine if you should speak with an attorney regarding obtaining Guardianship over your loved one.

Power of Attorney or Guardianship

If your loved one has a General Durable Power of Attorney, you will not need to obtain Legal Guardianship. This type of Power of Attorney becomes effective the moment it is signed and remains in effect if and when your loved one becomes incapacitated.  The person who creates the Power of Attorney is the Principle and the person who is appointed in it is the Attorney-in-Fact.  The Attorney-in-Fact is given the legal authority to manage the affairs for the Principle.  The Power of Attorney ends once the Principle has passed away.

There is also a Springing Power of Attorney that only becomes effective upon incapacitation, but establishing the “springing event” is often quite burdensome and that is why most recommend having a General Durable Power of Attorney.

Either type of Power of Attorney should be prepared by a Trusts and Estates or an Elder Law attorney.

 

If you are able to establish that no Power of Attorney exists, you should then consider speaking with an attorney about a Guardianship proceeding.  This is a court action.  It requires two doctors to certify that your loved one is unable to manage his or her own affairs.  The court will appoint an attorney to represent your loved one.  This attorney will provide a report to the court regarding the need for a guardian and appropriate person to take on that role.

Conclusion

If your loved one has any form of dementia and does not have a General Durable Power of Attorney or a Springing Power of Attorney in place, you may want to consider speaking with an attorney about obtaining Legal Guardianship. This is a complex, expensive and relatively long process.  Once you are appointed, however, you will be able to make decisions that you know are best for your loved one.

 

For information on the needs of dementia and memory care patients, or for referrals to elder law attorneys, please contact us here at Beacon Senior Advisors by calling: 973-713-0096 or visit us at www.BeaconSeniorAdvisors.com