Many older adults value their independence and autonomy and resist the notion that their adult children, or another concerned relative, should begin watching over them or managing their affairs. Would-be guardians should appreciate how emotional such a transition can be for a senior who must confront their own mortality and accept a reversal of the dynamic that has defined their relationship with their children. In many cases, seniors are more receptive to incremental change, such as a limited power of attorney that allows one of their children to pay monthly bills. Over time, these elders are more willing to transfer additional responsibilities.
However, instances do arise where an older adult is in peril because of refusing assistance. Then it becomes necessary to have a competency hearing and get a court order of guardianship. A would-be guardian can petition the court alleging that the senior is, because of mental illness, mental deficiency or advanced age, at risk of losing their health or property. The court makes its finding based on medical records and a written evaluation from a board-certified psychiatrist or physician.
The hearing is an adversarial process, and the senior is entitled to notice and counsel. Legal representation is an essential check on government power; if the court is going to strip an elder of his or her autonomy, there must be credible proof of incapacity. The Nevada guardianship system has come under much criticism for corruption and abuse of elders. Due process helps to ensure that a capable senior is not unfairly deprived of liberty or property. The process is not necessarily comfortable for either side, but with a complete airing of the facts, participants hope that the court can come to a decision that serves the best interests of the senior.
At Tyrell Law, PLLC, our elder care attorneys help seniors and their families through the guardianship process. If you are concerned about the health and welfare of an elder relative, or you need representation at a competency hearing, we can help. To schedule an appointment, call us at 702-382-2210 or contact our Las Vegas office online.
Q: What is estate planning?
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