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Temporary and permanent guardianship in Alabama

· Guardianship,Elder Law,Mom

Temporary and permanent guardianship

Guardianship is defined as an individual, agency, or corporation having care, custody, and control of a minor child or incapacitated person.  

In Alabama, there are two paths to guardianship:

  1. Temporary; and
  2. Permanent.

In the example below, Mom will be protected immediately thanks to an order for temporary guardianship. But Mom’s protection only lasts up to 30 days. Therefore, because Mom’s Dementia will require constant care, a permanent guardianship is necessary for Mom’s long-term protection and care.

Mom’s background

  1. Mom is 81 and has the advanced onset of Dementia.
  2. Mom lives alone and three of her children, all local, check on her at different times of the day and assist with medication, grooming, meal prep, household chores, and other activities such as paying bills, grocery shopping, banking, and the like.
  3. Mom is typically lucid and capable of managing her day-to-day activities.

Mom’s condition over the last month

  1. Mom has become increasingly aggressive, delusional, and paranoid.
  2. Mom has begun to barricade herself inside her home.
  3. Mom sleeps with a gun under her pillow—for protection.
  4. Mom has a knife she carries around in her pocket.
  5. Mom believes her three children, when they try to enter her home, are robbers.
  6. Mom shot at one the children yesterday, but missed.
  7. Mom needs immediate assistance and has been approved for the Dementia unit in a local nursing home.

Mom’s problem

  1. Mom refuses to go to a nursing home.
  2. Mom refuses to open the door.

The short-term solution

  1. An emergency temporary guardianship under Ala. Code § 26-2A-107 (2015).

The short-term process

  1. The children meet with an elder law attorney.
  2. The children file an emergency petition with the local probate court the same day they meet with the attorney.
  3. The court, in less than 24 hours, grants the oldest child temporary guardianship.
  4. The oldest child uses her status as temporary guardian to force Mom into the Dementia unit of the local nursing home.
  5. Mom cannot refuse to go to the local nursing home because the oldest child is Mom’s guardian, which means that the oldest child may, for up to 30 days, make decisions based on Mom’s personal welfare (including medical decisions).

Mom’s current condition

  1. Mom is now safe.

The long-term solution

  1. A permanent guardianship under Ala. Code § 26-2A-102 (2000).

Why a permanent guardianship?

  1. Mom’s Dementia is not getting any better.
  2. Mom will not be able to live on her own or make medical decisions for herself in the future.
  3. A guardian will be able to make decisions for Mom.
  4. A guardian will be able to help Mom get the medical care she needs.
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