Elder Law Issues Guardianship

Scenario: Margaret and Susan are home for the holidays visiting their elderly father. They discover that while he is still managing to take care of himself personally that his vision is beginning to fail. His checking account is overdrawn and he has money missing from his savings account where he has paid someone to make repairs on the house that were never completed. Further investigation reveals that he has not paid his utilities for several months but thinks everything is current. After talking with one of his close friends, they have reason to believe he is no longer able to handle his financial affairs. What do they do?

The father did not execute a durable power attorney that would allow his daughters to take over his affairs. Their only recourse is to file a petition with the court and ask that the court determine that their father is no longer competent to handle his financial affairs and request that one or both of them be appointed guardian of their fathers property. This would require
Hiring an attorney to draft the petition and file for guardianship with the court;
Paying the appropriate filing fees;
Notifying parties in interest;
Appointing of a Guardian at Litem in most states to represent the interest of the father;
Medical evaluation of the father to determine his mental and physical condition; and
A hearing before the Court to rule on the question of guardianship.

Filing a guardianship petition with the Court can be an expensive and time-consuming affair. The only way to avoid this when dealing with elderly parents is to have executed a durable power of attorney before aging parents become incapacitated. Consult with a competent attorney when executing wills or other testamentary documents to make sure every contingency is considered.

Ryan Hicks Cumpton & Cumpton LLP is a leading provider of expert estate planning guidance in Mobile, AL. For more information on elder law issues and other estate planning services, visit our website.

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