The process for what happens when an elderly person can no longer handle his or her own affairs and does not have powers of attorney in place is more or less the same in every state. A guardianship petition is submitted to probate court. If the court agrees that the person is legally incapacitated, then the court will appoint someone as a guardian. This person will then be responsible for the elderly ward's financial and personal affairs.
Many people believe there is an inherent bias in most states' guardianship laws.
Guardians are required to make regular reports about the financial affairs of the ward. Although it does not always work, this helps prevent the guardian from taking financial advantage of the ward. However, most of the time guardians are not required to report on the well-being and care of the elderly person.
Consequently, courts do not know if the ward is being abused or neglected unless a third-party makes a report.
Some states are attempting to change this bias by updating their laws to add new reporting requirements.
As the Jackson Free Press reports in "State Eyes Changes to Guardianship Laws," Mississippi has appointed a task force to consider changing its requirements.
Changing guardianship laws to make elder abuse less likely is good and important work. No elderly person should have to suffer from financial or personal abuse.
However, it is also important not to rely on guardianship laws as the only way to take care of incapacitated elderly people. Everyone should get the necessary powers of attorney in place before they become incapacitated to make it less likely that a court will see the need to appoint a guardian in the first place.
Remember: “An ounce of prevention is worth a pound of cure.” When making your estate plans or when probating an estate or administering a trust, do not go it alone. Be sure to engage a Cincinnati estate planning attorney.
For more information about estate planning, probate or trust administration in Cincinnati (and throughout the rest of Southwest Ohio) and to review free resources regarding estate planning, probate or trust administration, visit my website. If you have questions regarding this article or a particular legal matter, feel free to contact me at 513-399-PLAN (7526).
Reference: Jackson Free Press (Dec. 22, 2015) "State Eyes Changes to Guardianship Laws"