When an elderly parent becomes incapacitated and loses their ability to make rational decisions, a judge can appoint a guardian to handle the parent’s affairs. A guardian for an elderly parent would have the same rights, powers, and duties that their parent naturally has over them, especially concerning their living situation, healthcare, and finances (ARS 14-5312). Some guardianships are limited to certain responsibilities (e.g. arranging for nursing home care and paying the bills), but most guardianships are general and offer complete authority for the guardian to make important decisions for the elderly parent.
When is Guardianship of an Elderly Parent Warranted?
In guardianship proceedings, the adult who needs assistance is referred to as the ward. Taking away someone’s decision-making abilities isn’t a light matter, so the judge will need to see evidence that the ward is mentally incapacitated. The state of Arizona offers the following guidance on what constitutes mental incapacitation:
“Any person who is impaired by reason of mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication or other cause, except minority, to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person.” (ARS 14-5101)
The judge who is assigned to your parent’s guardianship case will need to answer two important questions—is the ward mentally incapacitated, and what is the extent of their impairment? The court will usually rely on physician’s certificates and independent psychological assessments to answer these questions. In some cases, the court can assign an investigator to interview the ward, their family members, and medical professionals. Based on these professional reports, the judge will either grant or deny guardianship, and they will determine whether the guardianship will be limited or general.
Note that an elderly parent who is making poor financial decisions or who has recently been the victim of fraud or identity theft doesn’t automatically qualify as incapacitated. These factors will be considered by the court when the judge is assessing the consequences of potential impairments, but on its own, financial mismanagement doesn’t necessarily warrant guardianship. If the court finds the elderly parent needs financial assistance but can still make rational decisions regarding their healthcare and living situation, the judge may opt for a conservatorship instead of a guardianship.
What is the Difference Between Guardianship and Conservatorship?
While guardians typically have control over all aspects of an elderly parent’s care, conservators are limited to handling the elderly parent’s finances. Conservatorships are usually warranted when the elderly parent can still make sound decisions for their healthcare and well-being, but they have a mental impairment that requires financial intervention. Depending on the situation, the conservator can have general authority to handle all of their elderly parent’s assets, or their authority can be limited to certain activities (such as paying bills and distributing investment income). In some cases, a conservator can even be appointed for a single transaction, such as the sale of the family home. Regardless of whether the conservatorship is general or limited, the conservator has a fiduciary duty to prudently manage the elderly parent’s assets.
What is Uncontested Guardianship?
Most guardianship proceedings are uncontested, meaning the ward and their family members don’t protest to the appointment of a guardian. Uncontested guardianship proceedings are obviously much quicker and more cost-effective, as they include significantly less court costs, legal fees, and professional testimony.
If, however, the ward objects to the guardianship, or if any interested party objects to the individual who is petitioning to be the guardian, contested guardianship proceedings will require additional time and effort. The ward has the right to an attorney, and if he or she cannot afford one, the court will appoint a public attorney to represent them and protect their interests. Opposing sides will have the opportunity to argue their case at a hearing, and both sides have the right to depose physicians, psychologists, and character witnesses to validate their position. If there are several people petitioning for guardianship, the judge will evaluate each candidate and select the person who is best qualified for the position.
How Long Does the Guardianship Process Take?
Guardianship proceedings will vary from case to case. Uncontested guardianship proceedings can usually wrap up in as little as 1 – 2 months, while contested guardianships could take at least 3 – 4 months.
Emergency Guardianship
If your elderly parent is at risk of severe bodily harm or death, the court can appoint an emergency guardian to take control of their affairs. The ward will usually need to be notified at least 24 hours before the emergency guardianship hearing, but a judge can waive that requirement when the circumstances are too urgent to postpone. At the hearing, the petitioner will need to prove that the ward is either temporarily or permanently mentally incapacitated, and that the petitioner is best qualified to serve as the guardian.
The petitioner will also need to show that an urgent situation warrants an emergency intervention. Once emergency guardianship is granted, the guardianship will last for 6 days. If the emergency situation extends beyond 6 days, the guardian will need to petition for an extension until a permanent guardian is appointed.
There are a number of situations that might warrant an emergency guardianship. A few common circumstances include:
- A necessary healthcare treatment that is not necessarily urgent, but should not be delayed during the standard 2 – 4-month guardianship process
- Impending bodily injury
- Impending death
- Forcefully removing a ward from a home that is unsafe
- Relocating a ward who is abusive to others
- Removing the ward from an abusive living situation
An Alternative to Guardianship
If your elderly parent has a sound mind (meaning they’re not mentally incapacitated, impaired, or subject to undue influence), they can opt for planned guardianship with a durable power of attorney. Where an unplanned guardianship forcefully takes away someone’s right to make important decisions for themselves, planned guardianship allows the elderly parent to willfully appoint an agent to handle their affairs.
Based on the terms of the power of attorney, the agent (also known as the attorney-in-fact) can receive broad authorization to handle all of the elderly parent’s affairs, or the document can restrict their access to certain activities. In this case, the elderly parent retains the right to rescind the guardianship arrangement at will. This route is preferable as it retains the elderly parent’s rights, and it’s significantly faster and cheaper than formal guardianship proceedings since all you need is a short legal authorization and the proper signatures.
Call Guardianship and Conservatorship Attorney Colton Johnston at (480)467-4313 to discuss your case today.
