Photo by Sasun Bughdaryan on Unsplash

Question:

My parents are elderly and my sister and brother would prefer that they agree to move out of their home and into either an assisted living center or a nursing home. My father is very demented and my mother has been receiving assistance three times a week from a local hospice to give her aid and respite care. I live out-of-state but visit twice a month.

My sister has been threatening for at least a year to declare my father incompetent in court so she can send them off to an institution. My mother is determined to care for my father at home for as long as she can. She found the assisted living community she visited with my brother ( almost a year ago) “revolting” as she was struck by a perception that none of the inhabitants greeted her or seemed happy in their daily routines.

I am curious to know, once my sister decides to file for a hearing and court order, about how much time would it take to get results? I am trying to determine how seriously I should take her threat, because if it’s months before there is a hearing, the situation could be drastically changed by then.

My sister claims her big issue with the home situation is with my mother helping my father up and down the stairs. IYO, should I start taking videos of my mother going up and down the stairs with my father? She is very careful and has him hold on to the railing, although recently he received a hospital bed that was placed downstairs so that he wouldn’t have to use the stairs except occasionally, perhaps.

Response:

To respond to your specific question about the timing of a guardianship proceeding, if your sister seeks a guardianship appointment over your father she will be required to give notice to your mother, you, and your other siblings, if any, as next of kin. The notice period varies from state to state, but is usually about a month and a hearing on the petition cannot occur until after that month has passed.

However, your sister could also at the same time seek a temporary or emergency guardianship on an expedited basis if she claims your father is at risk of harm. The notice period for that could be just a week or less, though given the backlog in our courts it could take longer.

Given the shorter notice period for a temporary guardianship, you or your mother may want to have a lawyer in place ahead of time so they can step in quickly if necessary. Otherwise, it could easily take you more than a week to locate and engage an attorney to represent you in the proceeding.

In terms of evidence, the videos should be useful. However, since it sounds like your father’s situation is fluid, videos made months before any hearing may be out-of-date by the time of any hearing.

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