Can an emergency guardian for an elderly parent be appointed without you knowing? The answer is yes. Learn the who, what, and how of emergency guardianship petitions for elderly parents, spouses, grandparents, and other elderly family members.
?While an emergency guardianship appointment may seem shocking without any notification to family members, emergency guardians are appointed more often than you might think for older adults with memory loss who fail to plan.
Emergency or temporary guardianship should be of concern to all adults who are single, divorced, widowed, never married, without children, or married but neglecting or financially exploiting a spouse diagnosed with dementia or Alzheimer’s disease.
A Dementia Diagnosis Can Lead to Emergency Adult Guardianship
The number one health condition leading to emergency and permanent adult guardianship is dementia. Advancing dementia can make decision-making, financial management, and personal care difficult if not impossible.
Older adults who live alone may be unaware that they are experiencing memory loss and challenges managing daily life. This lack of awareness can lead to self-neglect, which is the number one reason elderly parents and other adults are reported to Adult Protective Services (APS).
A burned-out or sick spouse may neglect the care of a husband or wife with memory loss. Adult children taking care of an elderly loved one with dementia may neglect or financially exploit.
If you are an older adult, legal planning can help you avoid neglect or exploitation by family members. While it may be unimaginable that a spouse or an adult child will neglect your care, the demands of caring for a person with dementia can be overwhelming.
Legal Planning is Self-Protective
Some adults hesitate or lack knowledge of the benefits of completing an estate plan that includes medical and financial power of attorney, a living will, and a will or trust.
If you or a loved one has multiple health conditions or a family history of memory loss, it is even more important to be proactive to avoid an emergency guardianship appointment by a non-family member.
Health Conditions Can Lead to Dementia
A combination of heart disease, diabetes, a history of stroke, or other circulatory issues can lead to a diagnosis of dementia over time. Additionally, if a family history of Alzheimer’s disease exists, memory testing is a proactive way to identify early concerns.
Aphasia, which can be noticed by difficulty speaking, understanding, reading, and writing, can also be an early sign of dementia.
Damage to the brain that results from a stroke, a traumatic brain injury, an infection, inflammation, or neurological decline can lead to this communication disorder. Primary progressive aphasia (PPA) is a form of dementia.
Putting legal plans in place is important for self-protection and advocacy to avoid legal guardianship.
Appointing a power of attorney agent with a provision for incapacity in the document is the best way to avoid the need for a court-appointed guardianship.
Knowing about
how guardianship works for an elderly parent or loved one is important, whether you accept the professional guardian or wish to be appointed as the guardian.
Adult Children With Parents Living in A Different State
If you are an adult child living in a different state from your elderly parent who has risk factors for memory loss, have family conversations about what happens when memory loss progresses. Make sure your parents complete an estate plan with an attorney with whom you have no relationship to avoid a possible conflict of interest.
While most older adults want to remain living independently in their homes, an early diagnosis of memory loss, often called mild cognitive impairment or MCI, should set off warning bells for the importance of planning. Unless asked, primary care doctors do not screen for memory loss.
Dementia and Guardianship Petitions
As a professional guardian and conservator for 11 years, I have experience with courts appointing me as an emergency, temporary, and permanent guardian. Sometimes, without notification to family members.
I have also served as an
expert witness in fiduciary litigation cases. These cases involved the appointment of a professional guardian at an emergency hearing without the spouse’s or adult children’s knowledge. The family members learned of the appointment and objected to the county court system’s lack of processes and checks.
Emergency or temporary guardianship petitions are usually initiated by hospitals, nursing homes, Adult Protective Services (APS), or attorneys representing these organizations.
The named emergency or temporary guardian may be a staff member of the State or Public Office of Guardianship, a local professional guardian, or an Adult Protective Services worker, rather than a family member.
So, how is it that family members, including a spouse or adult children, are not notified that a guardian has been appointed for a family member?
In emergency or temporary situations, “notice” may not be required for these reasons:
- The appointment is time-sensitive. A legal decision-maker may be needed immediately to manage health and financial matters.
- The older adult’s memory loss may be so advanced that they cannot offer information about family members.
- Adult Protective Services may still be investigating the case to identify family members.
- A hospital, nursing home, or Adult Protective Services may not want to notify known family members who are under suspicion of elder abuse or neglect.
- Court systems may be understaffed or lack processes to request that the petitioner work to identify immediate or family members living at a distance.
In most states, after an emergency or temporary guardianship is granted, another hearing is scheduled within 60 days. The 60 days for a permanent hearing allows additional time to identify family members and mail them notice of the permanent hearing.
Family members who receive notice of the emergency guardianship appointment may object during this period.
Can a Guardian be Appointed Without Notifying Family Members?
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What if You Receive a Permanent Guardianship Hearing Notice?
If you are a family member who receives notice of a permanent guardianship hearing for a parent, aunt, uncle, grandparent, or another family member after an emergency guardianship appointment, and you are interested in your family member’s well-being, attend the hearing, virtually or in person.
While you may lack knowledge of the guardianship and conservatorship process, most county probate websites have information on this topic.
You can learn more about the guardianship process by watching my online course,
How to Get Guardianship of an Elderly Parent.Contact the Petitioner to Obtain Information
The notice of guardianship should list the name of the “petitioner,” who may be a company or an individual. The notice will also list the name of the emergency or temporary guardian.
While your first thought may be to call the emergency or temporary guardian to request background information about the need for the appointment, some states require guardians to be represented by an attorney. Some guardians will communicate with family members without an attorney in the middle.
The attorney for the professional emergency or temporary guardian can act as a “gatekeeper.” This means that the guardian will not speak with family members without the attorney present.
The emergency or temporary guardian may also refuse to talk to a family member who is not represented by an attorney. This factor makes it difficult for family members who cannot afford attorney representation.
More than likely, the attorney or the guardian will suggest that you hire legal counsel if you wish to disagree with the appointment.
The Hard Realities of Non-Family Emergency Guardianship Appointments
Understanding the process of appointing an emergency guardian or objecting to the appointment is difficult for most individuals.
Legal terms can be challenging to understand. State statutes can be complicated.
And if a family member does not have the financial means to hire an attorney or an expert to understand the court process, they may be frustrated or feel powerless. Unfortunately, court systems and guardians with financial access to the ward’s estate create an uneven system that family members cannot compete with.
Definition: The term “ward” means the person over whom guardianship was granted. In this case, your family member may be called the ward or the putative ward.
What Can Family Members Do To Gain Information or Object?
While family members can act as PRO SE parties and represent themselves in court hearings, they are no skill match for experienced attorneys and professional guardians.
Family members quickly learn that probate departments and staff in the county court offices offer little or no assistance.
If you find yourself in a situation where you disagree with the appointment of a non-family guardian, it is essential to understand the process and what you can or are willing to do, and the associated costs.
While it is possible to find low-cost or free legal assistance through a local bar association or legal aid organization, this can be frustrating if the volunteer or pro bono attorney lacks the necessary litigation skills and experience.
If you have the financial means to hire an attorney, it is critical to hire the right attorney.
An estate planning or elder law attorney who is not a litigator may be no match for the Plaintiff’s or Guardian’s attorney. In guardianship cases where disagreements exist, it is important to hire an experienced litigator with a winning track record.
If you wish to hire an attorney, make the time to interview several and ask about their experience specific to your family guardianship case.
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