What happens if there's no power of attorney — the guardianship path
This article is for educational purposes only and does not constitute medical, legal, or financial advice. Every family situation is different, and you should consult with appropriate professionals about your specific circumstances.
Your mother had a stroke. She survived, but the stroke left her unable to manage her own affairs. She can't get out of bed to pay bills. She can't sign documents. She can't understand complex conversations about money or medical decisions. She needs someone to make decisions for her. You've been doing it informally for the past week—answering calls from her bank, talking to her doctors—but a bill collector called and said they wouldn't speak with you. The bank won't let you access her account. The nursing home is asking who has legal authority to make medical decisions. You realize there is no power of attorney in place, and there's a problem.
When someone loses capacity and there's no power of attorney, the only way to get legal authority to manage their affairs is to go through the court. You'll need to petition for guardianship. This is the path nobody wanted to take, but sometimes it's the only path available. Understanding what guardianship is, what it costs, what it requires, and what happens along the way helps you make the best decisions in a bad situation.
Guardianship is not what most families want. It's a court process. It's public. It takes time. It can be contested. It takes some of your parent's rights away. But if your parent has lost capacity and there's no power of attorney, guardianship is often the only way to get legal authority to care for them. This matters because without legal authority, you can't access their money to pay for their care. You can't make medical decisions. You can't sell their house if needed. You're stuck.
Understanding the Basics
Guardianship is a legal relationship created by court order. A guardian is a person who the court appoints to manage the affairs of someone who can no longer manage their own affairs. If you're appointed as your parent's guardian, the court gives you authority to make decisions for them. That authority comes from the state, not from your parent. The court took away some of your parent's rights and gave them to you.
This is fundamentally different from a power of attorney. With a power of attorney, your parent deliberately chose you and gave you authority. With guardianship, the court made the decision. Your parent didn't volunteer for this. In fact, the process of getting guardianship can feel adversarial because you have to go to court and prove that your parent doesn't have capacity to manage their affairs.
There are different types of guardianship. Full guardianship means you have comprehensive authority over your parent's personal and financial affairs. You make medical decisions. You manage their money. You determine where they live. You have broad authority. Limited guardianship means the court only takes away specific rights. Maybe your parent can still manage some financial decisions but needs a guardian for medical decisions. The court decides how much authority is necessary based on the evidence.
Guardianship proceedings are public. There's a petition filed in court. There's a court hearing. There might be a contested hearing if someone opposes the guardianship. Court documents are public records. Your parent's diagnosis, financial situation, and family disputes can become part of the public record. This is one reason people try to avoid guardianship. There's no privacy.
The process also takes time. In some jurisdictions, you can get an emergency guardianship that takes effect quickly while the full guardianship case is pending. But the full guardianship process usually takes weeks or months. During the first few days after your parent loses capacity, you might not have any legal authority to make decisions, which creates urgent problems.
There are costs. You pay court filing fees. You might need to hire an attorney. Some jurisdictions require a court-appointed evaluator or guardian ad litem,a person appointed by the court to assess your parent's capacity and determine what's in their best interest. These evaluators charge fees. You might have to post a bond, depending on your jurisdiction and your circumstances. Some families end up spending several thousand dollars to establish guardianship, and then you have ongoing reporting obligations to the court that require attorneys and accountants.
The guardianship doesn't end until your parent dies or the court terminates it. You remain responsible for managing your parent's affairs under court supervision. You have to file annual reports with the court showing how you spent their money and what decisions you made. The court can ask questions. The court can require you to post a bond to protect your parent's assets. You're not just helping your parent. You're under court supervision.
This is why people should get power of attorney documents signed while they have capacity. If your parent signed a power of attorney before they lost capacity, you don't need guardianship. You have authority immediately. You don't have to go to court. You don't have a public process. You don't have ongoing court supervision. You just have authority because your parent chose to give it to you.
What It Does
If you're appointed as your parent's guardian, the court gives you authority to make decisions for them. The scope of that authority depends on what the court orders. With full guardianship, you have authority to manage all of your parent's personal and financial affairs. You can make medical decisions. You can decide where your parent lives. You can spend their money to pay for care. You can make legal decisions. You have broad authority.
Limited guardianship is narrower. The court might appoint you as guardian of the person but not the estate. That means you can make personal decisions,where your parent lives, medical decisions, personal matters,but someone else or your parent retains control of their finances. Or the court might appoint you as guardian of the estate only, meaning you manage money but someone else makes personal decisions.
With guardianship authority, you can access your parent's bank accounts. You can pay bills from their money. You can sell property. You can sign contracts. You can make medical decisions. You can authorize treatment. You have the authority to do what needs to be done for your parent's care.
But you also have responsibilities. You're required to act in your parent's best interest. You can't use their money for your own benefit. If you spend their money, you have to have a good reason, documented. You have to keep their money separate from yours. You have to pay bills on time. You have to keep records. The court is watching. If someone suspects you're not managing things properly, they can ask the court to investigate.
The guardianship is ongoing until something changes. Your parent doesn't regain capacity very often, so guardianship typically continues until your parent dies. There are rare situations where someone regains capacity and the guardianship ends, but that's uncommon. More likely, you're managing your parent's affairs as guardian until they pass away.
Getting It Done
If your parent has already lost capacity, you need an attorney. This is not a do-it-yourself process. Different states have different requirements, and the specific steps matter. An elder law attorney who handles guardianship cases in your state can guide you through the process.
The basic steps are similar everywhere. You file a petition in probate court or family court (the name varies). The petition says that your parent lacks capacity to manage their affairs and asks the court to appoint you as guardian. You have to include evidence of your parent's incapacity,usually a doctor's statement about your parent's condition and capacity. Most states require a physician's evaluation specifically for this purpose.
The court will schedule a hearing. Your parent has the right to attend the hearing if they're able. They have the right to contest the guardianship if they want to. Some people do. If your parent still has some capacity or if there's disagreement in the family about whether guardianship is necessary, the hearing could become contested. The judge will hear evidence about your parent's capacity and make a decision.
In many cases, the guardianship is not contested. The evidence is clear that your parent can't manage their affairs. Your parent might not object to the guardianship. There's no family dispute. The judge approves the guardianship, and you're appointed. The whole process might take a few weeks to a couple of months.
In contested cases, it takes longer. You might have expert witnesses. There might be cross-examination. The judge might appoint an evaluator to assess your parent's capacity. These contested guardianships take months and cost much more money.
Some states allow emergency guardianship when there's an immediate danger to your parent or their property. An emergency guardianship can take effect quickly, sometimes within days. This buys you time while you pursue full guardianship. The emergency guardianship usually lasts only a few weeks while the full case proceeds.
Once you're appointed guardian, the court issues an order. You become your parent's legal guardian. You get a certified copy of the guardianship order, which you can present to banks, insurance companies, healthcare providers, and others as proof that you have authority to act on your parent's behalf. You also have ongoing obligations to the court. You have to file reports. You have to maintain records. You have to act in your parent's best interest.
Taking Next Steps
If your parent has already lost capacity and there's no power of attorney, you need an attorney immediately. Contact an elder law attorney in your state who handles guardianship cases. This is not something to delay. While the guardianship case is pending, you might not have legal authority to make decisions, which creates real problems if your parent needs medical treatment or has bills to pay.
If your parent is still living and still has capacity, even if capacity is declining, the priority should be getting a power of attorney signed. A power of attorney is so much easier than guardianship. It's faster, cheaper, and less invasive. If your parent can still understand what they're signing and can execute a power of attorney, that's infinitely better than ending up in guardianship later.
If you're in the middle of this process, focus on what matters most right now. If your parent needs medical decisions made, prioritize getting authority for those. If your parent needs financial decisions made, prioritize getting authority for that. The guardianship will give you comprehensive authority once it's in place, but getting it in place takes time.
Document everything while you're waiting for the guardianship to be finalized. Keep records of conversations with doctors. Keep copies of medical information. Keep bills that need to be paid. Keep notes about your parent's condition and what decisions need to be made. When the guardianship is approved, you'll want to have clear documentation of what you've been doing and why.
This is one of those situations where none of the options are good. Guardianship is not what you wanted. If your parent had signed a power of attorney earlier, you wouldn't be dealing with this. But if your parent has lost capacity and there's no power of attorney, guardianship is often the only way to get legal authority to care for them. It's not fast or easy or cheap, but it's the way the system works. Understanding what you're getting into helps you work through it more effectively.
How To Help Your Elders is an educational resource. We do not provide medical, legal, or financial advice. The information in this article is general in nature and may not apply to your specific situation. If you are concerned about a loved one's cognitive health or safety, consult with their healthcare provider or contact your local Area Agency on Aging for guidance and support.