ABA Family Legal Guide

The Rights of Older Americans

A Right to Control Your Own Affairs

Guardianship

My elderly mother is often confused. I think she ought to have a guardian to look after her interests. What do I do?

First, you may want to contact your local area agency on aging to see if there are any programs or services that might help your mother manage and make it unnecessary to obtain a guardian. It also will help to have her examined by a doctor or a psychologist experienced in geriatric evaluation. A geriatric evaluation typically will involve evaluation by more than one specialist from different disciplines, such as medicine, nursing, and social work. Often, a person's decision making may be impaired because of physical or other causes that can be corrected.

If the evaluation supports the need for a guardianship, check with a lawyer to learn the specifics of your state's guardianship law and procedures, as they vary substantially from state to state. The appointment of a guardian normally requires the filing of a petition with the court, notice to your mother and other interested parties, and a court hearing. You probably will need a lawyer to help you through it.

The court also may appoint an investigator, or "visitor," to interview your mother and make a report, or a lawyer to represent your mother. At the hearing, a judge will review the petition, the investigator's or lawyer's report, and medical reports.

The judge may ask the person filing the petition why the other person needs a guardian. The judge also may ask the allegedly incapacitated person some questions. The hearings are usually fairly informal. If there is disagreement, the judge may set the case for a formal hearing with witness testimony, cross-examination, and argument by counsel.