By Chuck Roulet, Estate and Elder Law Attorney | Licensed in Florida and Minnesota
You searched for this question because you are already in a difficult situation. Your parent has dementia, they can no longer make their own decisions, and there is no power of attorney in place. Maybe you just found out. Maybe you have known for a while but kept hoping things would work themselves out.
Here is the honest answer — and then the path forward.
Without a Power of Attorney, You Have No Automatic Legal Authority
Many adult children are surprised to discover that being someone's son or daughter does not give you the legal right to manage their finances or make medical decisions on their behalf. Banks will not let you access accounts. Doctors may not discuss your parent's care with you. Government agencies will not talk to you about their benefits.
A power of attorney is the document that grants that authority. When a parent loses capacity before signing one, that document can no longer be created. The opportunity to plan privately and inexpensively has passed.
But that does not mean you are without options.
The Legal Path Forward: Guardianship and Conservatorship
When someone loses capacity without leaving a power of attorney in place, family members can petition the court to be appointed as their legal guardian or conservator. In Florida this process is called guardianship. In Minnesota it may be called guardianship (for personal decisions) or conservatorship (for financial decisions), or both.
A court-appointed guardian has the legal authority to make personal care and medical decisions for the incapacitated person. A conservator manages their financial affairs — paying bills, managing investments, handling property.
What the Process Looks Like
To begin, a family member files a petition with the probate court in the county where the parent lives. The court appoints an examining committee or evaluator to assess the parent's capacity. A hearing is held, and if the court finds that the person is incapacitated and that guardianship is appropriate, it appoints a guardian.
In Florida, this process typically takes three to six months under normal circumstances. Emergency guardianship — available when there is an immediate threat to the person's safety or finances — can be granted much faster, sometimes within days. In Minnesota, the timelines are similar.
What It Costs
Guardianship is not inexpensive. Between attorney fees, court filing fees, the cost of the examining committee, and related expenses, families in Florida and Minnesota typically spend between $5,000 and $15,000 or more to establish a guardianship. Ongoing annual reporting requirements also add to the cost over time.
This is precisely why elder law attorneys stress the importance of putting powers of attorney in place before a crisis. A durable power of attorney drafted in advance costs a fraction of a guardianship proceeding and gives far more flexibility.
Can a Guardian Still Protect Assets From Long-Term Care Costs?
This is the question most families ask once guardianship is in place. The answer depends on the state, the specifics of the parent's financial situation, and how quickly you act.
In some circumstances, a court-appointed guardian can petition the court for permission to take certain asset protection steps — such as transferring assets into a trust or restructuring finances to improve Medicaid eligibility. These steps are more limited and more complex than what can be done with advance planning, and they require court approval rather than simply acting as an agent under a power of attorney.
An experienced elder law attorney can assess what is still available in your specific situation and advise on the most protective path forward.
What to Do Right Now
If your parent has lost capacity and has no power of attorney in place, the steps are:
- Contact an elder law attorney immediately to begin the guardianship process
- Do not move, transfer, or give away any of your parent's assets until you have legal authority to act and have received guidance on the Medicaid lookback rules
- Gather documentation of your parent's finances — bank statements, investment accounts, property deeds, insurance policies
- If there is an immediate safety or financial threat, ask your attorney about emergency guardianship
For a full explanation of everything involved in planning when a parent has dementia — including what to do when capacity still exists — read our complete guide by clicking here.
Ready to Protect Your Family? Call Us Today.
If your family is facing this situation right now, the most important step you can take is a conversation with an experienced elder law attorney. There is no obligation and no pressure — just clear answers about what is still possible for your family.
Florida Office (Sarasota County, FL): 941-909-4644
Minnesota Office (Minnetonka, MN): 763-420-5087
Or fill out the contact form on this page and a member of our team will reach out to schedule your consultation.
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Chuck Roulet is an estate and elder law planning attorney at Roulet Law Firm, P.A., with offices in Minnetonka, Minnesota and Venice, Florida. He is licensed in both states and has nearly 30 years of experience helping families protect their homes, life savings, and legacies.
This page is for informational purposes only and does not constitute legal advice. Please consult a licensed attorney about your specific situation.
