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What exactly is a guardianship?

People with Alzheimer's and other debilitating diseases often reach the point where they become mentally incapacitated, are unable to execute important legal documents, or refuse care or assistance. When an elderly person reaches this unsafe condition, guardianships may be approved in Arizona if certain conditions are met.

A guardian's authority for the care of an incapacitated adult is like a parent over their child. Generally, they assure that the person lives in safety and dignity, remains free from financial exploitation, and receives necessary long-term and medical care. A court must approve the appointment of a guardian because the incapacitated individual is losing their rights. Court appointment also helps assure that the guardianship does not lead to abuse.

The individual seeking guardianship, usually a family member, must present psychological or medical evidence that the subject person is incapacitated. Very importantly, they must also establish that they will competently and properly execute their legal authority. Having a criminal record, bankruptcies, and using the patient's funds in the recent past seriously diminish a person's chances of being approved as a guardian.

The petitioner should show that there is a guardianship plan and that they will appropriately use the incapacitated individual's funds. The court will review the guardian's actions, such as management of the person's finances and their medical care and long-term care decisions, to ensure that these matters are being carried out appropriately.

Sometimes long-term guardianship is unnecessary, but an individual may have special circumstances that warrant temporary legal care. In these instances, an emergency guardianship may be created.

The first circumstance when an emergency arises is when an individual is being financially exploited. Scam artists target elderly people who are impaired and have no family with them. Sometimes, family members or employed helpers may be engaged in this exploitation. However, a guardianship may avoid this exploitation from occurring.

The next situation is when a person lacks the capacity to make decisions and has not appointed an individual to make decisions in their place. This is often seen when a young person suffers a major accident, stoke, or another catastrophic event. When this occurs, a physician and the court must declare that the person is unable to direct their care and that a willing and capable guardian can act in that person's best interest.

An elder law attorney can help petitioners with seeking court appointment as a guardian. They may also provide advice to court-appointed guardians on executing their powers in compliance with the law.

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