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Emergency Guardianship

Get instant authority to help a loved one.

· Probate Law,Guardianship

How do I know if emergency guardianship is necessary?

Ask yourself: Is your loved one currently in an emergency or crisis? For example, does your loved one suffer from Dementia or Alzheimer's and is he or she wandering off, refusing to take medications, or hallucinating? Have you tried to solve the problem, but can't? Do the problems continue to get worse? Is your loved one refusing to go into a long-term care or nursing facility even though it would be in his or her best interest?

If you answered "yes," or if you feel like you're currently in an emergency situation that will not get better without court intervention, then an emergency guardianship may be in your loved one's best interest.

What is an emergency guardianship?

An emergency guardianship gives a guardian authority to act on behalf of your loved one for 30 days.

Usually, a spouse, parent, adult child, loved one, or friend, is named by the court as the "guardian" of your loved one. A guardian is responsible for your loved one's health, support, and maintenance. The guardian also possesses the authority to limit your loved one's right to visitation or communication, including the right to visit others or receive visitors, make or receive phone calls, and send or receive text messages, social media messages, and personal mail.

How do I know if my loved one qualifies for an emergency guardianship?

Your loved one qualifies for an emergency guardianship where all three of the following apply:

1. your loved one is "incapacitated";

2. an emergency exists; and

3. no other person appears to have authority to act in the circumstances.

How do I know if my loved one is incapacitated?

If your loved one suffers from at least one of the following, he or she is "incapacitated" according to Alabama law:

1. mental illness;

2. mental deficiency;

3. physical illness or disability;

4. physical or mental infirmities accompanying advanced age;

5. chronic use of drugs;

6. chronic intoxication; or

7. any other cause to the extent of lacking sufficient understanding or capacity to make or communicate responsible decisions.

Ask yourself: Is my loved one incapacitated?

If you answered "yes," then go to the next question.

If you answered "no," before you abandon the idea, you may wish to speak to a doctor, caretaker, or attorney to get a second opinion.

Ask yourself: Is there a doctor's letter or other evidence that proves my loved one is incapacitated?

If you answered "yes," then determine whether an emergency exists.

If you answered "no," then call your loved one's doctor or speak to others who have knowledge of your loved one's incapacitation and make sure they're willing to testify, draft a letter, or sign an affidavit stating the facts concerning your loved one's incapacitation.

How do I know if an emergency exists?

Emergencies come in all shapes and sizes. Sometimes a caretaker, doctor, or other professional will let you know when an emergency exists. Other times, you'll experience recurring problems for which there are no solutions, or the solutions you've tried have proven futile.

If you suspect an emergency exists but you're not sure, it may be helpful to obtain a second opinion from an attorney, doctor, caregiver, or someone with knowledge of or close ties to the situation.

Ask yourself: If I don't do something immediately, will the situation get worse?

If you answered "yes," then determine whether anyone else has authority to act.

If you answered "no," before you abandon the idea, you may wish to speak to a doctor, caretaker, or attorney to get a second opinion.

How do I know if anyone else has authority to act on behalf of my loved one?

Ask yourself: Does anyone have guardianship over my loved one?

If you answered "yes," then someone else has the authority to act on behalf of your loved one and you should contact him or her immediately. If he or she is unable or unwilling to act, you should contact an attorney immediately.

If you answered "no," go to the next question.

Ask yourself: Does anyone have power of attorney over my loved one?

If you answered "yes," obtain a copy of the power of attorney, take it to an attorney, and find out if the person has authority to act on behalf of your loved one in the present emergency.

If you answered "no," then emergency guardianship may be in your loved one's best interest.

My loved one qualifies for emergency guardianship, now what?

To obtain emergency guardianship of your loved one, a petition for emergency guardianship must be filed in the probate court in the county where your loved one lives or is presently located.

The petition for emergency guardianship must show at least the following:

1. your loved one lives or is present in the county where you're filing the petition for emergency guardianship;

2. your loved one is "incapacitated";

3. an emergency exists; and

4. no one else has authority to act on behalf of your loved one.

Is an emergency guardianship permanent?

No! In Alabama, an emergency guardianship lasts 30 days from the date of the judge's order granting emergency guardianship.

30 days is usually enough time to get a loved one admitted to a long-term care or nursing facility. It is also enough time to file a petition in the probate court for a permanent guardianship and/or conservatorship.

Do I need an attorney to file for emergency guardianship?

No. But if you have questions as to how to get started and what the process entails, it is a good indication that you need the assistance of an attorney.

An attorney well versed in the Alabama Uniform Guardianship and Protective Proceedings Act can help reduce stress and costly mistakes in court.

Ask yourself: If I worked with a helpful, knowledgeable attorney, would it help me through the process with greater ease and confidence?

If you answered "yes," then you need the assistance of an attorney.

A former Special Judge of Probate, Brent Helms heard and ruled on guardianship and conservatorship cases as a judge. As an attorney, he focuses his practice on probate law.

Alabama State Bar, Rules of Professional Conduct, Rule 7.2 (e), requires the following language in all attorney communications: No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.

This blog post is made available by Helms Law Group, LLC for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice or to create an attorney-client relationship. This blog post should not be used as a substitute for competent legal advice from a licensed attorney in your state.

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