Do I need to hire an attorney, or should I hire an attorney, if I need to petition for emergency guardianship in another state?
I am 100% certain my father is unable to care for himself in all aspects of his life expect for his basic ADL’s, he can clean, dress, and feed himself, but he is not capable of making rational decisions about his future due to short term memory loss and hearing loss. He does not know how to do anything related to paying bills, finances whatsoever, washing clothes, proper food preparation/storage because he has ALWAYS been catered to and dotted on by a woman his whole life. His narcissistic-egocentric personality, and archaic/ignorant views on what’s “women’s work”, has limited his pool of support people he can call on for assistance. He has a reputation in his town, known to be verbally abusive and quite demeaning towards women in general, but truly doesn’t discriminate when he is “feeling his oats”, though he has no clue he is doing it and will argue against it if you confront him as a true narcissist will every time.
Anyway, when I was there caring for mom, dad mentioned assisted living for himself all on his own. So, I told him what I knew about the current state information since I last worked as a CNA in MT 10+ years ago. One of his limitations for being informed himself is a lack of internet access in the home and his inability to use ANYTHING that’s remotely digital in nature, outside a TV remote! Proof, their new-ish oven is push button digital display, they’ve had 5 years and he started learning to use it 3 years ago; I had to write out signs telling him how to use it and pin them up next to the oven. Even after 3 years he still needed someone to tell him how to operate the oven. I don’t mean tell him proper cooking temperatures, but full steps-how to turn it on, set temp, start, AND WAIT FOR IT TO REACH TEMPERATURE. He still burned food or undercooked foods because he didn’t set timers or can’t hear the timers, no short term memory and hearing loss!
I was constantly worried about him burning the house down because he heats the house with wood stoves. He would take half burned pieces to load more, I don’t know or understand why because that’s not what he taught me to do growing up. He’s on blood thinners and hand cuts the wood with an axe every day. He nicks himself constantly. And he climbs on to the roofs to clean the chimneys every other month by himself. So, he has a lot of various situations that put him in danger and he doesn’t ask for help.
Because I know he is a danger to himself and should not be living alone in his home, I want to petition for guardianship of him. I only just found information that I can petition for emergency guardianship if I can prove that he is a threat to himself. Because I am now his attorney on his POA, since mom’s passing, and 20+ years ago both my parents named me executor of their wills, meaning in his “right mind” he believed I would have his best interests at heart (and do), I think those documents would support my case. I also feel his own doctors would support my claim based on evidence of my support and intervention on his behalf for medical and mental health care during and after mom’s death.
Do any of you know if it’s required to have an attorney to file for an emergency guardianship if I live in a different state from my parent?
4 Answers
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"... I am now his attorney on his POA..."
Therefore you do not need emergency guardianship but what you do need is to read the PoA document to see what is required to activate your authority. In most cases it is 1 medical diagnosis of incapacity, and sometimes even 2. This means you have to go with him to his appointment with your PoA paperwork and discretely ask the doc to give him a cognitive exam and then have the doc put it on the clinic letterhead and into his online chart. This is what activates the authority. I literally just did this this week for my Mom. It hasn't been going easy since.
Hopefully you aren't misinterpreting things: being Executor of their Will gives you no authority to do anything until your Father passes away. Then you distribute his estate per the instructions in the Will.
But unless you have a PoA document that both you and your Father signed in front of a notary (which could have been in the attorney's office) then you are NOT his PoA.
FYI even if you are actively his PoA or emergency legal guardian, it doesn't solve the problem of *forcing* him to accept whatever care you then put in place. You can send aids to his house, but will he let them in? You can find a good facility for him but will he get in the car to go? Or not try to leave the facility?
Please clarify if you are indeed his legally assigned PoA.
Realistically imho no judge is going to issue a Guardianship to someone who is NOT a resident of their state and some judges won’t like doing this even for those who are not even a resident of their county. A judge has to be able to be assured that the guardian is responsible and accountable to their court… like your butt is in their chambers for a EOW request if need be. You’re living and legal resident in another State will never ever be that. You can appear to have zero ties to the community. This is why you need to have a local attorney to be there to shepherd the process for you and act in your stead when necessary.
Please pls realize, the judges usually have a list at the ready of vetted and approved folks who can be named to be an Emergency Guardian. The probate court staff will have a list as they so often get a APS that has an elder in dire straits who needs one done like yesterday. That list is where a judge - imho - will go rather than to some family member from another State who shows up without an attorney in their court.
and yes allow for 7-12K for Guardianship costs. If you are appointed, then you can be reimbursed from your wards assets. Not a DIY.
You should first in my opinion look at the wills to see if there is what is called "Spring Power of Attorney". Most good attorneys do these and there may be you already listed.
Step two, if there is none, it is time to speak with the MD about the possibility of these letters.
Time to speak with Dad about a move.
Let us say that Dad refuses and MD says he is not incompetent in his opinion.
Then there is zero you can do other than to call in the local APS, police, sheriffs for wellness checks, tell them you have no POA/guardianship and cannot get same. Let the state take him on with a Fiduciary appointed.
In short, yes, I think you are going to be looking at a few hours with Elder Law Attorney. You may want to try APS first. Tell them what you told us. Ask them if they can help to apply for "Temporary Emergency Guardianship. This would help get him placed. They often can do this with a call to a judge in the State of Cali. Don't know about where you will be. The law is loathe to take any citizen's rights from him or her.
I wish you good luck. I do think being in the office of an Elder Law Attorney would assist you in getting the answers and options you need.
I do think the local APS would help. But none of this will be easy and being in charge of someone who has seen their darling daughter move into caregiver and rulemaker is going to rebel big time, especially when faced with the loss of home and independence. This is something I would never want to do long distance. Just the financial management would be an utter nightmare. For instance, the SS doesn't recognize POA and you would have to be representative payee. Another thing to go through. Then there would be the meticulous record keeping. Tough when you are not there, the getting registered with the ALF, the supplemental insurance, etc. I was trustee of trust and POA for a brother at the other end of my own state, who was very well organized and who sold his last property leaving meticulous records. And it was STILL and enormous job.
Watch what you wish for. This can break you, make you so anxious you will jump out of your skin on a regular basis. I honestly would never do it again, even at best.