EMERGENCY GUARDIANSHIP OF AN ELDERLY PARENT
It’s shocking but true: more than half the reports of elder abuse or neglect that were investigated (most recently in 2018) stem from self-neglect as reported by the Department of Health and Human Services. That’s more than the next most numerous categories— financial exploitation, emotional abuse, physical abuse and sexual abuse—combined. Self neglect can be one of the saddest circumstances that call for emergency guardianship of an elderly parent.
Surprisingly, the concept of guardianship dates back to ancient Greece and Rome yet, to this day, remains uneven in its implementation. And, while guardianship can be applied on behalf of people of any age, when it comes to guardianship of an elderly person, especially emergency guardianship of an elderly parent, a court decision may intervene. This can happen should family conflicts preclude you, as the adult child, taking on that role.
So, what is guardianship and how does it differ from other legal relationships that are designed to provide care for an elderly parent unable to provide it for her/himself? It’s often seen as a last resort option, resulting from a court hearing that confirms a medical opinion of incapacity of the elderly parent.
In New Mexico, guardianship deals with a person: their mental or physical health, nutrition, religion, education. In an emergency guardianship of a parent, it’s often recognized as a need during a holiday when adult children have arrived to discover all is in disarray – mail piled up, rotting food in the refrigerator, dirty dishes strewn about and all is just a mess. Sadly, this is not a unique situation but, in fact, quite common. The kids will then approach an elder care attorney who, when approaching the court system, will appeal for guardian ad litem who then begins an investigation into the parent’s state of mind or ability to care for her/himself.
The goal is to determine what is best for that parent’s continued health and ability to manage their living needs; a doctor, guardian, social worker will assess capacity. Essentially, the decision rests on this: the parent is in dire emergency straits and, unless something is done immediately, is vulnerable to injury or death.
And, ironically, while this position exists to avoid what could be tragic results, its implementation can be tragic as well in its upset and cost. To minimize adding additional upset, especially when deciding to implement emergency guardianship of an elderly parent, consider these steps:
- Consider your own future needs when you may rely on others for care; planning can ensure that you’ll have a say in who will look after you if you ever need help.
- Make peace with your loved ones. Judges often appoint professional guardians, so try to effect peace before problems escalate. Whatever the cost, it will likely be cheaper than a professional guardian. And, despite the feuding that may be in place now, your goal is for peace among loved ones in future, when you may depend upon them for your continued health.
- Create one durable power of attorney for finances and another for medical care. One person can fill both roles, and you can also name your POA designee as your guardian of choice.
- Do you know in advance who you’d like to fill this critical role? Explain to your designee how to do the job; some good insight, especially when someone else will handle your funds, can be found here.
- And, be prudent – create checks and balances by requiring your appointee to provide a periodic accounting to another trusted friend or relative.
So, to be clear: with full guardianship of an elderly parent, a judge transfers the individual’s civil rights — including the right to sign contracts, make medical decisions, and choose with whom to associate and where to live — to the guardian. And, while the vast majority of guardianships maintain a conscientious relationship and responsibility to their clients, there are disasters that lead to fraud, embezzlement and conspiracy with an audience sadly vulnerable to this unscrupulous behavior.
When it’s time to place mom or dad under the care of a guardian, emergency or otherwise, here are the steps you’ll need to take:
1. Obtain a Physician’s Certificate or Doctor’s Letter
If you have a parent who you think needs emergency guardianship, you must obtain a physician’s certificate or letter. This form is a document that attests to the patient’s mental acuity and physical ability. Before that step, you might need to assess your parent given clues found throughout their home; you can learn more about this here.
2. File the Application for Guardianship
Filing the application in a probate court for guardianship is a pretty standard procedure. If the elderly person has refused medical examination you can always ask the court to order one later. The court will undertake guardianship proceedings to determine whether you are fit to be guardian.
3. Give Notice to the Proposed Ward & Relatives
When you file the application for guardianship you will also notify the proposed ward of the application, as well as any family members or others with the legal right to know about the petition of guardianship. You can see why it’s important to make peace with family long before this emergency need arises.
4. Seek Least Restrictive Alternative to Guardianship
Are there alternatives that are less burdensome than a guardianship? One of them, Power of Attorney, is fully discussed in our free report; you’ll find it here on our home page.
If you have evaluated alternatives and have found them to not be feasible then it may very well be that guardianship is the best solution for your loved one.
5. Attorney Ad Litem / Guardian Ad Litem
If you file for guardianship, no matter what, the court has to appoint an attorney to represent your loved one, the proposed ward. This is the Attorney Ad Litem. Their job is to do what the proposed ward, their client, wants.
If the court, or the attorney ad litem, believes more investigation is necessary, a Guardian Ad Litem may also be appointed. This person is not the guardian but is a court-appointed person who acts as the court’s eyes and ears. They are involved in the process and their job is to determine and make recommendations on what is in the ward’s best interest.
The decision to wrest complete control from the person who’s had such a controlling influence over your own life can be wrenching. When it’s not planned and is, instead, an emergency guardianship of your aging parent, it’s life changing. And then, it can become worse when conflicting interests – personal, medical or legal – feel compelled to do battle with you. It’s costly both in terms of money and state of mind for all parties which, ironically, can degrade the ability to make good choices on behalf of the aging parent whose decline was the impetus for this changing scenario.
As a long-time professional guardian, I’m one of fewer than 100 Certified Master Guardians in the United States. I welcome your call; no obligation is implied:
Celebrating Decades: The 80’s
The first guardianship symposium was held in 1988, leading to the National Guardianship Network. Professionals who recognized the problems of aging adults, unable to properly make decisions or care for themselves, combined with a huge boomer population destined to become elderly, led to this historic event. Over time, the Network has tackled standards, reform and federal responsibilities to an aging population. To learn more, click here. If you wish to explore this role, either for yourself or a loved one, please connect with me, either at the phone numbers above or here.
National Guardianship Network, Aging Life Network podcast
Informative and helpful guide that everyone can refer through for their guardianship needs. Thanks for it.