When Do I really need a Guardianship?

The first legal question is “Why does Mom need a Guardianship?” In other words what are you as the spouse or child trying to do that you cannot get done. For example, if Mom cannot pay her bills, withdraw money out of her IRA or transact her daily financial affairs which must be done, you as the spouse or child could get a Guardianship over Mom and do those things for her. If Mom had a Durable Financial Power of Attorney you could, as her “Agent” pay her bills or transact her daily financial affairs without the need of a Guardianship. At this time a Revocable Living Trust could be a real life saver as well. If all of Mom’s assets were in the Revocable Living Trust then you acting as the “Successor Trustee” could pay Mom’s bills and transact her daily financial affairs without the need of a Guardianship. If you need to talk to Mom’s doctors and nurses to determine whether Mom can stay at home or should she be placed in an Assisted Living Facility or Nursing Home Facility you can do so if you have a HIPAA Authorization signed by Mom. Without this HIPAA Authorization the Doctors and healthcare personnel may only talk to you after you get Guardianship over Mom. Many times people get a Guardianship over Mom because the Doctor said “you need to get a guardianship”. What the Doctor really meant is “in his medical opinion” Mom is incompetent so you should go ahead and get a Guardianship. What the Doctor should have said is that your Mom is medically incompetent you should go see an Elder Law Attorney to determine if a Guardianship is appropriate at this time. From my point of view (Doctor speaking) I believe you Mom is legally incompetent. So when do you really need a guardianship? When a Durable Power of Attorney won’t do what you need done. When is that? When Mom refuses to go to the doctor or she refuses to stay in the Hospital or in a Nursing Home. The Hospital and Nursing Home will tell you if Mom wants to go home they have to let her leave, they cannot keep her against her will without a Guardianship. They cannot make Mom stay if you only have a Durable Power of Attorney. Even if Mom cannot live alone and everybody knows this but Mom, the hospital or Nursing Home cannot force her to stay. In this case a temporary guardianship might do. After 90 days a temporary guardianship will expire and if Mom is settled in the Nursing Home by then everything might be ok. However if Mom continues to demand she wants to leave the temporary guardianship would need to be made permanent. There are also many other situations which might require a Guardianship, but consult an Elder Law Attorney before doing so.

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