Watching an elderly family member or friend suffer from dementia or Alzheimer’s disease is one of the hardest things to witness in this life. As elderly patients lose precious memories, they gradually lose the ability to care for themselves. When their mental capacity is diminished to the point of incapacitation, it’s usually necessary for someone to step in and assist with handling their healthcare, living situation, and finances.
What is Guardianship?
When an adult becomes incapacitated, the court can appoint a guardian to care for the elderly individual. In guardianship proceedings, the caretaker is referred to as a guardian, and the incapacitated person is known as the ward. Generally speaking, a guardian has the same rights and powers that a parent has over their biological child (ARS 14-5312).
When is Guardianship Warranted?
A guardianship can only be established for minors, adults with disabilities, and adults who are mentally incapacitated. An individual is considered incapacitated when they lose the ability to make ration decisions for their care and wellbeing, and/or when they lose the ability to communicate important decisions. Incapacitation usually requires certification by a doctor or psychologist.
What Does a Guardian Do?
While most guardians are granted broad power to handle all of a ward’s affairs (financial, healthcare, living, etc.), the court can limit the guardian’s authority to certain activities depending on the extent of the elderly individual’s incapacitation. A guardian’s responsibilities will hinge on what activities the ward has demonstrated difficulty handling on their own, and what activities one could reasonably assume that they’ll need help with going forward. It’s not uncommon to see guardianship situations where the ward needs help handling their finances and living situation but retains enough mental capacity to make the final decisions regarding their healthcare and treatment.
Following is a list of some of the activities that guardians are usually responsible for:
- Accessing medical records and private documents
- Applying for and administering benefits
- Buying and selling property
- Collecting debts and income
- Determining the ward’s living situation and care plan
- Filing income tax returns
- Giving consent for medical treatment
- Giving consent for non-medical services (e.g. counseling), and monitoring interactions with non-medical professionals
- Keeping an accounting of expenditures
- Managing financial assets
- Paying bills
Who Can be Appointed as Guardian?
Family members are appointed as guardians in the majority of cases. That said, a guardian can be any interested party who is qualified to care for the ward. In most cases, the party who petitions the court for guardianship will be appointed as guardian. If there are multiple parties who are petitioning for guardianship, the judge will determine who is best qualified for the position. In cases where there are no qualified petitioners or when the qualified parties are heavily contested, the court can appoint a public guardian.
How to Get Guardianship of an Elderly Adult with Dementia
The guardianship process begins with a family member or friend submitting a petition to the county court. The court will schedule a hearing, and the petitioner will be required to serve notice to the elderly adult, his or her family members, and applicable agencies. The hearing can only commence when proof of notice for all of the interested parties has been filed with the court.
Considering how guardianship strips someone of their natural right to govern themselves, granting guardianship is not a light matter, and the elderly adult deserves due process and proper representation. Before the hearing, the elderly adult will be assigned a public attorney (unless he or she can afford to hire their own attorney), and the court may assign an investigator to look into the guardianship claim.
At the guardianship hearing, the petitioner will submit evidence of the elderly adult’s incapacitation. Of primary importance is the certificate of incapacitation from the elderly adult’s physician or psychologist. In addition to the certificate, the petitioner can offer their own testimony and evidence, and can call on other parties to attest to the need for guardianship as well as the petitioner’s qualifications to serve as guardian. During this process, the elderly adult’s attorney will ensure that their rights are protected, and if guardianship is necessary they’ll do their best to make sure the most qualified individual is appointed as the guardian.
The judge will probably attempt to speak with the elderly adult to gauge the extent of their incapacitation, and to ascertain their preferences as to who should serve as their guardian. If the elderly adult has a will or advance directive, the judge will review those documents and appoint the guardian who was nominated by the testator.
Once the guardian has been appointed, they will be required to report their activities to the court periodically. Most updates will be in the form of an annual accounting and report, but the court may ask the guardian to appear in court if necessary. If at any time the court finds that the guardian is remiss in their duty of care, the court will dismiss the guardian and appoint a new one.
How Long Do Guardianship Proceedings Take?
Every case is different, and the timeline will vary based on the case’s complexity and opposition. If there aren’t any contests to the guardianship or the prospective guardian’s appointment, guardianship proceedings can wrap up in as little as 1 – 2 months. If anybody contests to the guardianship or rejects the prospective guardian, the proceedings could take 3 – 4 months.
Emergency Guardianship
In some cases, it’s impractical to wait several months for the court to appoint a guardian. If there is ever a risk of death or severe bodily harm to the elderly adult, the court can appoint an emergency guardian to care for them until a permanent guardian can be appointed. On extremely rare occasions, the Court will grant an emergency guardianship without notice. However, the Court will typically require that a proposed Ward receive notice of a hearing by personal service before an emergency appointment is granted. Standard procedure is a denial from the Court of an emergency without notice, requiring that the Petitioner serve the Ward with notice of an emergency hearing. The Court’s denial will typically then set an emergency hearing within about two weeks, and an attorney will be appointed to review the pleadings and opine on the appointment at a hearing set on an emergency basis. At the hearing, the petitioner will need to prove that the elderly adult is incapacitated, and present evidence that the situation warrants an emergency guardianship. Some of the most common situations that warrant emergency guardianship include:
- The elderly adult is facing impending death
- The elderly adult is facing impending bodily injury
- The elderly adult has an urgent need for medical treatment
- The elderly adult is living in an abusive situation and needs to be immediately removed
- The elderly adult is abusive to others and needs to be immediately relocated
- The elderly adult is living in an unsafe home and needs to be immediately removed
If the Court grants emergency guardianship, it is typically in the form of a temporary appointment. This temporary guardianship will typically expire in less than six months based on a date set by the Court. If the Ward still requires emergency guardianship as the expiration date nears, the temporary guardian’s authority can be extended by the Court until a permanent guardian is appointed through standard guardianship proceedings.
Call Guardianship and Conservatorship Attorney Colton Johnston at (480)467-4313 to discuss your case today.
