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Turning a Guardianship into an Emergency Temporary Guardianship

Siblings arguing about their incapacitated parent can make for a difficult guardianship in the best of circumstances. Family issues, issues of trust, favoritism, money, childhood issues and more can cause difficulties and acrimony when they are arguing over their parent's care.  I recently got involved in a difficult guardianship case and had a successful result, thus far.  I will leave out names, although they are on the public record. 

In our situation, Mom has a long history of mental issues. As she is getting older, Mom is also having dementia creep in to the situation. The good thing is that our client, the responsible son ("Good Son"), was put in charge of Mom's financial legal affairs many years ago. Good Son was named as his Mother's power of attorney and health care surrogate. Before his father died, his father created a trust for his wife's benefit, naming Good Son as the trustee of  assets, as the family recognized that Mom needed someone to handle her financial affairs.  Their planning is a good example of how estate planning can help prevent a guardianship.  But, it should be recognized that even the best estate planning cannot always prevent a guardianship.

In our situation, things were going fairly well for Mom - she is in her 80's but living in a good assisted living facility. Good Son was in charge of all finances and Mom was getting good care.  The problem was that Bad Son entered the picture. Bad Son - who unfortunately has mental issues of his own - started causing problems for everyone. Bad Son kept going to the assisted living facility and bothering Mom - asking for money, disrupting things, and getting Mom upset.  Bad Son even got Mom to sign a new power of attorney, even though it was widely recognized that Mom did not have capacity to make her own decisions.  Bad Son was acting so badly, Mom is being evicted from the assisted living facility.

With all this going on, Good Son contacts us regarding helping. After evaulation, we realize that despite all of their good previous estate planning, due to Bad Son's interference, we must file a guardianship action to help make sure Mom is protected. So we file a petition to determine incapacity and appoint Good Son as guardian. But, Bad Son still interferes - he still communicates with Mom and gets her to refuse to see the medical examiners from the examination committee. Bad Son may have still been exploiting Mom financially as well.  But due to Mom's refusal to allow herself to be examined, we had to take the extraordinary steps of converting the regular guardianship to an emergency temporary guardianship.  Although we were not in an emergency when we first started the process, things were not going fast enough due to Mom's upcoming eviction from the assisted living facility and the Bad Son's interference. 

With a court hearing already scheduled, we filed a petition for emergency temporary guardianship. In the hearing, I was able to demonstrate that due to Bad Son's interference, Mom was (both):

  • in imminent danger that his or her physical or mental health or safety of the person will be seriously impaired; and 
  • that her assets were danger of being wasted, misappropriated, or lost unless immediate action is taken. 

Now that we have the Good Son appointed as the temporary guardians, we will now, hopefully, have a more orderly process to get the full guardianship in place in order to protect Mom.

Also, the Bad Son was shown to be unable to help Mom and at the hearing, where we also learned that Bad Son had a warrant out for his arrest for grand theft auto (he was arrested today).

The moral of the story is this - if you have a contested guardianship, you need a good attorney to help you during difficult times.  With my litigation background, I am glad to provide the counsel for my client to help make sure their loved one is protected, both financially and health care wise.

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Kevin J. Wimmer
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Florida Guardianship and Probate Attorney
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