When Mom Or Dad Needs Parenting: Guardianship For The Elderly When They Are Incapacitated
With the baby boomers retiring, the population of older Americans is growing rapidly. If you have a mom or dad that is no longer able to take care of their own needs, you may have to file for a legal guardianship so that you can handle their affairs. Although procedure varies a bit by state, federal mandates ensure that older adults no longer able to take care of themselves are protected by the law. When your mom or dad needs parenting, it is time for you to begin the guardianship process.
The Guardianship Process Begins with Filing a Petition to the Court
The first step in obtaining guardianship of an incapacitated person is to file a guardianship petition. While you may have the experience or the knowledge to fill one out on your own, it is easier to seek the services of a qualified guardianship attorney. The petition is filed with the court, which outlines your concerns regarding the health and safety of the person you believes needs a guardian. This is only the first step, as all people have the right to due process. Other evidence must be presented to the court that defines and explains the alleged issues that the incapacitated adult faces without a guardian in place.
A Physician Will Need to Supply an Affidavit to the Court
A treating physician will need to provide the court with a written affidavit that outlines the reasons behind seeking the guardianship on behalf of their patient. The affidavit will explain the medications they are taking, their prognosis without intervention, and their ability to care for their own needs without any help. The affidavit from the physician is a critical piece of evidence, and without a doctor's consent, the proposed guardianship won't be approved.
After the Paperwork Has Been Filed
Once you have filed the guardianship paperwork, you will be asked to return to court for a hearing date. If the guardianship is of an emergency nature, the judge may order temporary orders until the permanent guardianship is put into place. The judge will either approve or deny the petition, depending on whether you have proven the incapacity of the person in question. If the guardianship is approved, you (or the person named in the petition) become the legal guardian of the incapacitated person.
If you have been approved as a legal guardian, you must act responsibly. It is your job to protect the assets of the individual you are the guardian for, as well as make sound decisions regarding their medical care. When you are ready to file for guardianship of one of your parents, it's time to sit down with an experienced probate attorney (such as David R Webb Attorney) who can guide you through the process.
