Parents spend years caring for their children. Oftentimes, as parents age, the tables turn, with children taking on the role of caregiver to elderly parents. While adult children are often eager to help out, some parents require more than just occasional assistance.
Watching an elderly parent struggle to care for themselves can be heartbreaking. If your parent can no longer direct their personal affairs, a guardianship can help protect them and their interests. Here's what you should know about becoming the guardian of an elderly parent in Virginia, including how the skilled elder law attorneys with Cucinelli Geiger, PC can guide you through each and every step of the process.
In the Old Dominion, adult guardianship is a legal process used to protect elderly adults who are unable to adequately care for their own needs. A guardianship grants an adult child—or, in some cases, another eligible individual—the legal authority to make decisions regarding an elderly parent's personal care.
However, before you can become a legal guardian and assume the role of decision-maker for an aged parent, a Virginia circuit court must deem them incapacitated and incapable of directing their own affairs. Testimony from a parent's treating physician, as well as from friends or family members who've witnessed their inability to care for themselves, can be used as evidence to support a claim of incapacity.
When Guardianship May Be Necessary
Unfortunately, as people age, caring for themselves can become more and more difficult. Your once-sharp parent may suddenly have trouble maintaining their hygiene, remembering to take vital medications, keeping their residence in a safe and livable condition, stocking the fridge and pantry, or even eating. In elderly people, the need for a guardianship is often due to the effects of dementia, mental illness, diseases like Alzheimer's or Parkinson's, or other forms of incapacity.
What it Means to Be a Guardian for an Elderly Parent
A guardian has a number of important duties and responsibilities related to an elderly parent's support, care, health, safety, treatment, and residence. When serving as a guardian, you'll be responsible for making decisions about things that directly affect your parent's daily life. Duties and responsibilities may include:
- Obtaining medical care or services when needed
- Advocating for your parent's best interests
- Consulting with healthcare and social service providers as necessary
- Thoroughly understanding the risks and benefits of any proposed interventions
- Providing consent for medical treatments
- Determining where your parent will live
- Monitoring their residence for safety, cleanliness, and livability
- Applying for government benefits
- Providing consent for and monitoring non-medical care services, such as counseling
- Consenting to the release of your parent's confidential information
- Acting as a representative payee for your parent's Social Security benefits
- Making end-of-life care decisions
- Managing your parent's social environment
- Maximizing your parent's independence in the least restrictive manner whenever possible
- File an annual report with the court
Considering your parent's wishes whenever possible is an important part of serving as an adult guardian. However, as a guardian, you're permitted to act contrary to their expressed wishes when it is in their best interest.
Becoming a Guardian
In Virginia, pursuing guardianship of an elderly parent requires going through a complex legal proceeding. Here is a brief overview of the process:
- Filing a petition with the Virginia Circuit Court is the first step to obtaining guardianship of an elderly parent. File the petition in the city or county where your parent lives. If your parent is currently in a nursing home or care facility, file the petition in the city or county where they lived prior.
- Your parent, the respondent, will receive a copy of the petition, be notified of the upcoming guardianship hearing, and be advised of their legal rights. Your other parent and grandparents (if living), aunts and uncles, and siblings will also be notified. In the absence of such relations, three living relatives will be notified. Your parent has the right to legal representation during the guardianship process, as well as to be present at a trial and cross-examine witnesses to their alleged incapacity.
- The court will appoint a third-party attorney, known as a guardian ad litem, to investigate. As part of their investigation, the guardian ad litem will speak with you and meet with your parent. They will also interview your parent's friends, family members, neighbors, and treating physicians. After completing their investigation, the guardian ad litem will make their recommendation to the court.
When a Parent Can't Manage Their Finances
If your parent has lost the capacity to manage their personal affairs, you may also find that they can no longer competently direct their estate or finances. Has your parent become forgetful about paying bills or had utilities switched off due to non-payment? If so, you may also want to consider pursuing a conservatorship. This legal arrangement would allow you or another appointed individual to handle your parent's financial affairs. Considering a conservatorship is particularly important if your elderly parent is at risk for financial exploitation.
Less Restrictive Alternatives to Guardianship and Conservatorship
When it comes to caring for relatives, guardianships and conservatorships should be considered options of last resort, as they involve taking a number of the respondent's basic rights. For example, under guardianship or conservatorship, your parent might not be able to vote, get married, sign legal documents, or make their own medical decisions. Consider whether the following alternatives may be sufficient.
- Durable powers of attorney. A durable medical power of attorney would allow you to make medical decisions on your parent's behalf when they're unable to do so. Likewise, a durable power of attorney would allow you to make decisions regarding your parent's estate and finances when they can't make those decisions for themselves.
- Limited guardianship or conservatorship. In a limited guardianship or conservatorship, you would be given the legal authority to make certain decisions on your parent's behalf. However, they would retain decision-making power in other areas.
Public Guardianship Options
In some cases, your parent may need a guardian, but distance, career, work, health, or other obligations may prevent you from filling that role. Fortunately, when a family member can serve as a guardian, there are other options. For example, your parent could become a ward of the state, and a public guardian would be appointed to assist them.
Helping You Navigate the Complex Guardianship Process
Seeking guardianship of an elderly parent can be a difficult decision—and the process to obtain guardianship can be costly, time-consuming, and emotionally challenging. Let us help. We'll assist you in gathering the evidence necessary to prove your parent's incapacity and guide you through each and every step of the process.
Request a Consultation
Contact us today to schedule an appointment for a consultation to discuss your guardianship matter with a member of our accomplished legal team.