{"id":87,"date":"2019-03-28T17:23:04","date_gmt":"2019-03-28T17:23:04","guid":{"rendered":"https:\/\/www.jacksonwhitelaw.com\/guardianships-conservatorships\/?p=87"},"modified":"2023-06-12T18:43:23","modified_gmt":"2023-06-12T18:43:23","slug":"guardianship-elderly-parent-meaning","status":"publish","type":"post","link":"https:\/\/www.jacksonwhitelaw.com\/guardianships-conservatorships\/blog\/guardianship-elderly-parent-meaning\/","title":{"rendered":"What Does Guardianship of an Elderly Parent Mean?"},"content":{"rendered":"
When an elderly parent becomes incapacitated and loses their ability to make rational decisions, a judge can appoint a guardian<\/a>\u00a0to handle the parent\u2019s 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<\/a>). 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.<\/p>\n In guardianship proceedings, the adult who needs assistance is referred to as the ward<\/a>. Taking away someone\u2019s decision-making abilities isn\u2019t 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:<\/p>\n \u201cAny 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.\u201d (ARS 14-5101<\/a>)<\/p>\n The judge who is assigned to your parent\u2019s guardianship case will need to answer two important questions\u2014is the ward mentally incapacitated, and what is the extent of their impairment? The court will usually rely on physician\u2019s 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.<\/p>\n Note that an elderly parent who is making poor financial decisions or who has recently been the victim of fraud or identity theft doesn\u2019t 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\u2019t 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<\/a>\u00a0instead of a guardianship.<\/p>\n While guardians typically have control over all aspects of an elderly parent\u2019s care, conservators are limited to handling the elderly parent\u2019s 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\u2019s 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<\/a>\u00a0to prudently<\/a>\u00a0manage the elderly parent\u2019s assets.<\/p>\n Most guardianship proceedings are uncontested, meaning the ward and their family members don\u2019t 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.<\/p>\n 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.<\/p>\n Guardianship proceedings will vary from case to case. Uncontested guardianship proceedings can usually wrap up in as little as 1 \u2013 2 months, while contested guardianships could take at least 3 \u2013 4 months.<\/p>\n 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.<\/p>\n 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.<\/p>\n There are a number of situations that might warrant an emergency guardianship. A few common circumstances include:<\/p>\n If your elderly parent has a sound mind (meaning they\u2019re not mentally incapacitated, impaired, or subject to undue influence), they can opt for planned guardianship with a durable power of attorney<\/a>. Where an unplanned guardianship forcefully takes away someone\u2019s right to make important decisions for themselves, planned guardianship allows the elderly parent to willfully appoint an agent<\/a>\u00a0to handle their affairs.<\/p>\n 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\u2019s 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\u2019s rights, and it\u2019s significantly faster and cheaper than formal guardianship proceedings since all you need is a short legal authorization and the proper signatures.<\/p>\nWhen is Guardianship of an Elderly Parent Warranted?<\/h2>\n
What is the Difference Between Guardianship and Conservatorship?<\/h2>\n
What is Uncontested Guardianship?<\/h2>\n
How Long Does the Guardianship Process Take?<\/h2>\n
Emergency Guardianship<\/h2>\n
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An Alternative to Guardianship<\/h2>\n