How to Get Emergency Guardianship of an Aging Parent: Step-By-Step

Certified Care Manager, Aging Life Care Professional, and National Master Guardian Emeritus

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If you are considering emergency guardianship for a loved one, you have reason to believe that this is the only recourse left to protect that person. Guardianship should always be a last resort as it takes away people’s rights to make decisions for themselves. 

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An emergency guardianship will be temporary and might also be limited in its scope just to the decisions necessary to remove someone from a threatening situation. Suppose you have already completed long-term care planning. In that case, this will help your cause since you may already have healthcare power of attorney and advance directives that indicate that you are the designated guardian. 

We suggest making sure you have explored all other least restrictive options before petitioning the court for emergency guardianship. If you hold power of attorney, those powers may not be sufficient to protect someone. In that case, petitioning for emergency guardianship will make sense.

Why Might You Need Emergency Guardianship for an Aging Parent?

There are several reasons why you might consider an emergency guardianship for an aging parent, but you will need to be prepared. There are countless cases of families thinking that an emergency guardianship is the best way to protect a loved one, but the court may disagree.

Whether temporary or permanent, guardianship should be a last resort when the power of attorney is inadequate to protect a person. Many judges will want to see other efforts to help an incapacitated person before granting guardianship, even if it is temporary. 

Immediate physical danger

If an older person has dementia or severe cognitive difficulties, this can lead to neglect or abuse. The neglect can be self-neglect or at the hands of a trusted family member or caregiver. Regardless of the identity of the perpetrator, these are some of the physical danger signs that might warrant an emergency guardianship.

  • The older person has neglected their physical needs to the point where they have become malnourished, dehydrated, or otherwise too ill to function. 
  • The person has been physically, sexually, or emotionally abused. Unfortunately, this sometimes happens at the hands of a family member. Another person can petition the court to make an emergency appointment to stop the alleged abuse. Other times the abuse may occur from a caregiver either in a home setting or even in senior living. 
  • The older person places themselves in physical danger by wandering out in the cold without adequate clothing. There are cases of people dying under these circumstances. 
  • They may be dangerous driving and put themselves and others at risk of harm. The evidence for this would be multiple accidents and a refusal to stop driving.
  • Drug or alcohol abuse contributes to risky and dangerous behavior, including but not limited to neglect, vulnerability to sexual or financial exploitation.

Unsafe home environment

An unsafe home environment can develop over time despite your best efforts. You may live at a distance, and your loved one does not permit anyone to come into the house. Upon visiting, or reports from neighbors or others, you find out that the home environment has deteriorated to the point where it is unsafe. Here’s what unsafe can mean:

  • Neglected plumbing and electrical problems leading to unsafe living conditions. 
  • Your loved one leaves the stove on, creating a fire hazard.
  • Hoarding has created unsanitary conditions in the home, with rodent and pest infestations. 
  • Other home maintenance issues like damaged roofing, neglected landscaping, safety features like grab bars or railings are missing.

Keep in mind that these issues alone may not be enough to warrant emergency guardianship. There must be proof that the home problems are creating an imminent and present danger. There are plenty of people who choose to live in squalid conditions because it is their choice.

Surgical procedure

A person who has dementia or some other mental health problem may neglect medical care. Making a choice not to go to the doctor or take medications is not grounds for emergency guardianship. Otherwise, the courts would be packed with older adults who meet these criteria.

However, if a person is presumed not to have the capacity to make well-reasoned healthcare decisions and refuses a lifesaving procedure, this might be grounds for guardianship. In these cases, time may be vital. Any person can refuse medical treatment unless they are under guardianship. People refuse medical treatment every day, but if there is evidence of dementia, mental illness, or substance abuse, emergency guardianship might be the only avenue to protect a person from irreparable harm or death.

Discharge from a hospital

In cases where someone has an emergency admission to a hospital due to neglect, or abuse, discharge can become tricky. For one thing, the person may request to be discharged against medical advice. Or, if they are discharged back to an unsafe environment like those described above, they may be putting themselves in danger. 

An emergency guardianship will allow the temporary guardian to secure a safe and appropriate environment for discharge in these situations. A hospital social worker can help put together a plan that includes support resources to protect the incapacitated person until a more permanent arrangement is made. 

Financial exploitation and neglect

Financial exploitation due to scams and fraud are vastly underreported. According to the National Council on Aging, “estimates of elder financial abuse and fraud costs to older Americans range from $2.9 billion to $36.5 billion annually.” 

A surprising and disturbing fact is that most financial abuse is perpetrated by family members, followed by friends and neighbors. Common tactics include withdrawing large amounts of money for the person’s accounts, changing a will, or otherwise intimidating the person into giving cash and access to the estate. The only way to stop a family member from draining a vulnerable adult’s estate is to file for emergency guardianship.

Other financial exploitation issues involve scams and fraud such as romance scams, telemarketing, Medicare fraud, identity theft, and investment schemes, to name a few. The list goes on. The question for a judge considering an emergency guardianship is whether the person has the capacity to make these bad decisions and if these decisions are causing irreparable harm.

Another common financial neglect issue is paying bills. When an older person stops paying bills and their utilities are turned off, or their home is foreclosed, these are serious issues. It is not that unusual for an older person to be in senior care, and suddenly, the family member responsible for paying the bill stops paying. Why? Because they are taking the money for themselves.

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Steps for Getting Emergency Guardianship for an Aging Parent

Don’t expect to get emergency guardianship for an aging parent just because you feel it is the best option. Judges may vary in their decisions, and criteria differs state by state. Our steps may provide needed guidance for obtaining emergency guardianship.

1. Call Adult Protective Services

If your loved one is in immediate danger, call 911. If there is no immediate danger, call Adult Protective Services.  Whether they can help or not, is your duty and responsibility to report the problem.

And it might help your case. If Adult Protective Services finds that your loved one is in immediate danger, they can help expedite an emergency guardianship. Don’t be discouraged if Adult Protective Services can’t help. Continue to proceed with the steps of petitioning the court for emergency guardianship.

2. Obtain a doctor’s letter

Obtain a doctor’s letter stating the reasons why your loved one requires guardianship. You must have professional support for your petition, and most courts require such information.

If your loved one has had the same physician, they will have evidence of incapacities such as mental status exams or other proof that the patient can’t care for themselves.

3. Gather supportive documentation

You can’t be too prepared. This is a court case, and you need evidence. Compile your documentation in writing to present to the court. Include everything you have observed and if possible, compile bank account information if financial exploitation is an issue.

Take pictures of the home and make sure to ask the physician for medical evidence of neglect or abuse. 

4. Hire an attorney

Hiring an attorney is not necessary, but might help. Depending on the state where you are filing, the petition process can be complicated. An attorney can help you follow the correct procedures. If the guardianship case is contested, you will want an attorney as things could get very messy.

The family member you are seeking emergency guardianship of will also be appointed an attorney. In some cases, a court-appointed volunteer might visit the proposed protected person before the hearing. Be prepared for your loved one to deny and contest the guardianship. Courts are accustomed to people with dementia challenging the guardianship so this is not unusual but can distress everyone. 

5. File a petition to the court

Once you have everything in place, you will need to file for emergency guardianship. Generally, it can take between 24 to 72 hours for the guardianship to be appointed. The length of time will depend on state laws, the judge’s discretion, and any backlog of cases that could delay a decision. State statute determines the length of any temporary emergency guardianship.

The proposed protected person will be notified of the proceeding, and a court date will also be scheduled. Currently, many of these cases are conducted virtually. The state where you live will also determine how long after filing for the emergency guardianship you have to file for permanent guardianship.

6. Be willing to accept a professional guardian if the guardianship is contested

During a contested guardianship by a family member or anyone else, the judge might be unable to reach a decision, so he or she may recommend a temporary professional guardian.

The purpose of this action is to provide immediate safety to the person who needs protection. Meanwhile, you can petition for permanent guardianship. The judge may also choose to refer the case to mediation.

Getting Emergency Guardianship of an Older Adult

An emergency guardianship is a stressful process. The conditions that lead to such a decision can be disturbing and upsetting.

Being prepared to go through the process and assuming the immense responsibility of guardianship could be stressful, but know that in the end, you are doing what you can to protect your loved one from harm.


Sources:

  1. “Elder Abuse Facts.” National Council on Aging. https://www.ncoa.org/public-policy-action/elder-justice/elder-abuse-facts/
  2. “Statistics and Data.” National Center on Elder Abuse. https://ncea.acl.gov/What-We-Do/Research/Statistics-and-Data.aspx

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