The hospital is filing for mom's guardianship. How do I get the state to appoint a family memember as guardian as opposed to the state?

You need to get a court to appoint you guardin.

middledaughter, thank you for your comment and sharing your experience in VA. I'm researching elder law attorneys, but not moving fast enough. My mother fights everyone who opposes her point-of-view. Ideally, I would like to move her into assisted living, but she would likely leave the facility without consent and go home (walked out of three hospitals against medical advice). Regardless of the guardian (state or family), she will fight to remain independent; however, it is clear she needs assistance.

All - thank you for your comments and recommendations. Your perspectives and information are helpful as I continue to refine my approach and options.

Helpingson, I went to court to get guardianship over my mother in the state of Virginia. She fought it and the court appointed her a lawyer to represent her, and a guardian ad litem to make an independent assessment about what would be in her best interest. I had my attorney. It was not cheap: cost $18,000 for the three attorneys. (Fortunately, this came out of her assets per the law in Virginia.) As guardian/conservator, I can make all decisions about her health and welfare. I immediately moved her out of her condo and into assisted living (she has dementia).

I think a consultation with a lawyer is the appropriate way to go with this. It's very important to try and get legal matters set up before our parents lose their ability to do things for themselves and we need to do it while they are in their "right" minds. We almost waited too long ourselves but thankfully got things worked out. My mom was 80 when she had a stroke which started making her short term memory bad. We went to an Elder Lawyer to get things done. Hope it works out for you.

Your family needs to hire an estates and trust admin attorney. Her doctor needs to write a letter that she is mentally incompetent or can state evaluated hospital records regarding mental incapacity. A court of law can appoint a family member based on medical written documentation she is not within her right mind. Until that happens, she can tell hospital staff anything and they have to comply. Good Luck.

It must be some relief to you that she is now bleeping away on everybody's radar, I hope?

Don't underestimate the value of someone else volunteering to be the bad guy, will you? I'm so sorry, I just can't imagine the strain and sadness this must be putting you through.

Countrymouse, thank you again for sharing. My mother will soon find that after her pending discharge, going home may not be a simple task due to the increased awareness by county/state agencies and hospital assessments of her physical and mental health. So my immediate short-term priority is to assess and recommend options. I will meet with her hospital Dr and staff today per their request (finally) ... they do not believe they can make a safe discharge, even though my mother wants to leave now. I'm searching for an elder care attorney, but that is to discuss long-term plans.

Savitaa, that is exactly the point - why? would you not want the state to take over your loved one's care?

You have to bear in mind that in the OP's case we are talking about a loved one who *has consistently been* adamant that she does not want her family involved. So why go against those wishes when her needs can be met outside the family? What, at this point, could HelpingSon do for his mother that cannot be done much less painfully and just as effectively by the state's own officials? These people are paid, they are experienced and trained, and above all they are not emotionally vulnerable in this situation.

State guardians must act in the best interests of their ward. They will not prevent the OP's mother from seeing any of her children or other family members if she wishes to; and they will not ignore reasonable input from the family.

I cannot see what either HelpingSon or his mother stands to gain from fighting this battle.

I would go to an elder attorney immediately.
I would not want the state to take over my loved one's care. I'd fight all the way.
Your mom cannot possibly see the big picture in her condition.

All the best to you!!!

There are way too many issues here for a simple solution. I recommend you talk to a Virginia family law attorney ASAP, before you decide on any course of action. You need specific guidance on proper procedures in VA, so you don't waste time and money or make a significant error. Assuming you have your mother's best interests at heart, here are some of the issues you should think about before your first meeting with the attorney:

1) What is your mother's actual health status and prognosis? Some hospitals have religious affiliations that underlie their desire to pursue heroic therapies in terminal patients, when it may not be in the patient's best interest. Some of what you have said makes me think your mother might be best off receiving in-home hospice care, if her untreated prognosis is for less than 6 months of life expectancy.

2) What is the nature of your mother's mental incompetency? Recently developed dementia? Longstanding behavioral health issues? A combination? The hospital(s) probably have enough objective evidence to support their opinions on her incompetence, but you will somehow need to get access to it. Due to HIPAA, that may be difficult before an actual legal proceeding is initiated.

3) What is your objective opinion of your mother's mental state and competence? Do you think she is significantly worse, or was your mother always contrary and conflicted? In other words, do you think she would have checked herself out against medical advice and then called an ambulance shortly thereafter to get back in, 10 yrs. ago? What changes in her behavior can you document?

4) What were your mother's expressed wishes when she was mentally competent? Was she someone who wanted to live to the bitter end? Or was she rejecting of lying in an ICU full of tubes, being kept alive by machines? Even without an advance directive executed on her part, your knowledge of what she wanted is critical. And it will be extremely helpful if most family members are in agreement on this when it comes to making decisions going forward. If you mother ever executed a will, a POA, or any other legal document with bearing on the situation, and even if it is out of date and not fully valid, you should try to get your hands on each of those and see what they say.

5) Are there any assets involved? If there are, people will seemingly come out of the woodwork and insert themselves, if they think there is something for them to gain financially. This can be the case when there is as little as a few tens of thousands, and even if it is all tied up in your mother's house at the moment. If the hospital is appointed guardian, they will likely be able to charge a fee for the service. So would a private third-party, and sometimes even a family member serving as such. Depends on the state's laws.

These questions are for you to think about and try to answer before you meet with the attorney.

Mthr was in a similar state as you described with memory loss instead of dementia diagnosis from her cancer. She had a bleeding cancer which dropped her hemoglobin # to almost unlivable. This is what oxygenates the brain and allows it to function- so without a transfusion, she had no memory power or reasoning skill. The docs said later that without the transfusion she'd have just gone to sleep and faded away. Not a bad way to go since she'd already dealt with the worst pains of cancer.

She also had personality disorder symptoms. Very difficult to manage. It really would be best to allow non family to be in charge as guardian because they are immune to the horrible words and guilt trips that emerge. Being family means that you have some feeling for the person and you can be damage by the wounds that the person inflicts. Professional guardians do not have that vunerability and thus can get your mother better care when she is murderous!

Please reconsider state guardianship. Had I not been protecting my inheritance it would have been the best route for us to take with mine.

Helpingson, if your mother has, God forbid, developed brain metastases and is no longer capable of mental functioning, then an application for guardianship will need to be made for purely practical reasons. But the family does not have to do that.

She could not have made it much clearer that she does not want her family directly involved in her decision-making. That is her right. The deep-rooted reasons for her strong feelings may not be known to you, may indeed have no basis in rationality, may be terribly unfair in their reflection on her relatives; but if you wish her to enjoy peace of mind might it not be better, as well as easier, just to respect them? Then you would be free to focus on offering her comfort and reassurance, as far as she will allow, instead of spending time on administration.

After all, the outcome in terms of her care plan won't be affected, just the personnel making the arrangements.

TNtechie

Thank you for describing guardianship and its roles and responsibilities. Clearly needed since my mother will not give up control for any decision making authority such as an advanced directive and durable power of attorney for medical and finances.

HelpingSon, Guardianship is not necessarily care giving. The Guardian is the decision maker, much like a parent is for a child. You could make all medical, living, and financial decisions. For example, you could choose to place your mother with your aunt or in a SNF; whether your mother gets a certain treatment, when a DNR is applied, etc. The Guardian either appears before the court or at least files paperwork at least annually providing a status and accounting for expenditures - different states have slightly different procedures for obtaining guardianship and the guardian's responsibilities. I am most familiar with the process in TN, but have also researched laws in neighboring states where extended family live.

In most states, when the state/judge appoints a guardian it is often an attorney if the person has any money and a state social worker if private funds are not available. A judge is likely to appoint a family member over a social worker unless your mother can convince the judge she has a good reason not to accept a family member; although some judges will appoint the social worker if your mother states any objection at all.

GardenArtist,

Thank you for all of the information you provided on guardianship. I'll definitely review the websites. I hope to hear from hospital # 4 soon and an opportunity to to talk to the doctors and case workers. Her cancer has likely metastasized but I don't know if it has gone to the brain. A neurologist at hospital #2 mentioned this and want to do some tests, but my mother declined. Perhaps the hospitals have a "small areas which act as hospice." I don't know, but this is a difficult situation since my mother has recently emphasized privacy and the "Do Not Announce" code. I haven't spoken to my mother in a week.

I appreciate your input.

Countrymouse,

Thank you for your time and feedback. The one thing you wrote I agree with 100% is that my mother has a "genuine aversion to her business being discussed within the family" or really anyone. As I wait to hear from hospital # 4, I'll research options like what it really means to file for guardianship, and becoming a "ward of the state" , and obtaining an attorney. Depending on the severity of her recent hospitalization, my focus may shift to making her feel most comfortable during this time and may need to rely on hospital / state resources.

I've been feeling unsettled about this situation and my suggestions on guardianship, so I just reread and reread again all the previous posts, some of which I missed.

The issue of possibly being closer to death is one which makes me think over my suggestions and wonder if the whole guardianship issue should be dropped unless (a) it can get her a place in a facility providing hospice, or (b) it can otherwise create immediate care for her as an end stage patient. JoAnn's post made me think of this.

HelpingSon, some hospitals do have small areas which act as hospice; my sister spent her last days in one.

That might be something to consider. It would be a lot safer for everyone, including your aunt and your mother.

Four - 6 weeks leaves her in a position of being in limbo, close to dying but literally nowhere to go. In addition, your mother's fierce independence may specifically be b/c she knows she's in a terminal state and wants to die on her own terms, w/o intervention or people around her. And she has that right.

Perhaps that should be the immediate focus instead of guardianship;

I'm not prying, but wonder if her cancer has metastasized to her brain, and if so, has she had radiation to the brain? There's also a phenomenon known as "chemo brain", which affects the ability to think clearly. I've experiened this personally.

I'm wondering if that's motivating her behavior. Or maybe she just wants to die alone, w/o family around. Her "mental issues" may just be her own way of insisting that she passes on her own terms, w/o family around.

Thanks for your responses. Your mother has really been through hospital circuits, hasn't she?

To answer your questions, as best as I can:

VA has some very specific guidelines for emergency guardianship. Michigan was different, when I worked in Juvenile Court decades ago. It was a function of Probate Court, and sometimes we court reporters were called on to substitute for absent or ill PC reporters.

A few of the cases I covered were emergency commitments, and I believe some were related to emergency guardianships, but that was a long time ago. I recall vaguely that under extraordinary circumstances, emergency commitments or appointments were possible.

This is a link to Virginia guardianships generally:
valegalaid.org/resource/adult-guardianship-and-conservatorship

This is a link to the Virginia emergency "custody orders":

vacode.org/2016/37.2/4/11/37.2-1103/. If the "https" is truncated, google "Emergency guardianship, Virginia", and click on the first link. The requirements seem to be very specific.

And I must "stand corrected." It appears as if the time for an emergency custody order has already passed. It also appears that Paragraph B, an apparent prerequisite, isn't applicable. I apologize for leading you astray; it wasn't my intention.

Apparently under VA statutes, "emergency" means exactly that - right now! So the time for initiating an emergency guardianship proceeding would apparently have been on admission, or soon thereafter, but not a few days later.

There may be situations in which the "emergency" could be extended, but it would require research to determine what those situations are.

And it wasn't how I remember emergency guardianships being handled, although I confess that my experience in that area is not recent, and was not in Virginia.


"'How likely would a state appointed attorney recommend guardianship to a family member?" I'm sorry, I just don't know. My experience was from the court side, and I rarely knew what happened after a case was adjudicated. And states are different, it depends on the individuals, etc.

From the second citation above though, it sounds as though the state will work with the family.

At this point, I 'm thinking that it might be a good idea to find your own attorney with experience in hospital initiated guardianships and get some guidance, as well as representation.


"I've reached out to county offices that support the aging to initiate discussions about meals-on-wheels, in-home assistance, and other resources. "

That's a good step, and should support the desire for a family member to handle guardianship. Bear in mind that someone in late or end stage cancer will require different levels of care, including different diets as sometimes food no longer has much appeal or taste.

What I would do is contact the attorney who reached out to you and specifically ask if there's a way to expedite the 4 - 6 week process, especially given the late stage cancer. That's a strong basis for quicker action.

Ask if there are exceptions to the standards for an emergency hearing, based on that issue. It's not w/I the normal parameters as I read them, but that doesn't mean that there can't be exceptions.

But I would also seriously consider hiring an attorney so your mother isn't bounced around between facilities until adjudication is made.

And I sincerely apologize for the inaccurate suggestion that an emergency guardianship was in fact a consideration at this particular time, and absent other factors.

Helpingson, you mean the wider family would consider it shameful for your mother to be a ward of the state?

I understand that; but when you think it through this then becomes a matter of putting family pride or honour above your mother's own wishes, which she has made consistently clear, and possibly her best interests too.

She may have mental health issues, but she can be as nutty as a fruitcake and still have a genuine aversion to her business being discussed within the family.

As you say, and I'm sure you're right, there are issues at play here which are quite different from what you have all managed (great credit to you) to deal with before.

With your mother's being as ill as she is, perhaps you could persuade everyone that going with the flow for the sake of peace and quiet, and your mother's peace of mind as far as possible, would be for the best. The idea of the state's stepping in might still go against the grain, but these people are experienced professionals and the job will be done right. Nor will you be excluded from all discussion about her care, particularly not if you demonstrate that you want to co-operate.

I wish you the best of luck dealing with this very difficult situation.

JoAnn29

Currently, I don't have the resources to be a guardian. This is one reason why my aunt offered to assist. I also believe she is approaching her final days and know the court process may take longer than she has to fight her diseases. I'll need to research medicaid; however, her cash flow is limited. As next of kin, it is my understanding I can make decisions such as DNR (ER Dr suggested I could decide).

Thanks.

baskethill1

Thanks. I'm going to research guardianship, get a better understanding of the responsibilities and have a discussion with my extended family.

Ahmijoy

My mother asserts her independence. She knows she is sick, but simply says she has issues and tries to deal with them as best as she can. Without treatment, I believe she is nearing her final days. My short term goal for her is to live in a safe environment. I believe she would prefer to have a family member manage her affairs; however, her judgement is poor ... thinking she can handle challenges and affairs because of un-diagnosed mental illness.

She needs a NH and Hospice. She could pass by the time this gets thru the courts. At this point, I don't know why u don't go for guardianship. If Mom has money, Medicaid allows you to use her money, in case you may need Medicaid. It seems that Mom will pass sooner than later. As guardian you will be able to put a DNR in effect. You also will be able to place her into a NH with Hospice. All her needs will be met in the home. You can enjoy visiting. I think its nice of ur Aunt but like you said she has cared for other people. She may be a person who can't say no. Caregiving is not easy especially for an older person.

Countrymouse

By offering to care for my mom after hospital #2, my aunt understands this will not be an easy task, but she cares for her sister. Family members acknowledge my mom could choose to simply walk away ... this is real. My extended family (Aunts and Uncles) takes care of family. My maternal grandmother had Alzheimer's and lived with several of my Aunts and Uncles before she went to a nursing home when it was no longer feasible to provide her the proper care. This situation is different and may be a "job for professionals." A ward of the state ... I'm not sure I'm ready for that and what it may entail.

GardenArtist,

Hospital # 3 is filing for guardianship b/c my mother needs 24/7 supervision, and flip-flops on medical care. She was hospitalized in two hospitals in March 2018 and her records indicate an inability to make medical decisions (i.e., have recommended surgery/procedures, follow-up, etc.). I believe she has dementia, but hospitals just call it memory loss. A case worker told me she had several conversations with my mom, but my mom can't remember them 30 minutes later. I've had a couple of phone calls with the case worker from hospital # 3 who seemed very aggressive about guardianship. I mentioned my Aunt who volunteered to take care of my mother. The 4-6 week waiting period is because my mom went to hospital # 3 in another county (same state), went home, and then took an ambulance to hospital # 4 (near her house, but different county than hospital # 3). I talked to APS today who mentioned they would be involved (send a case worker) if the hospital sends her home, but also mentioned the hospital could send my mom to a NH and APS wouldn't be involved. No one mentioned emergency guardianship. What is that? The case worker said I and family members would have an opportunity to meet with the state appointed attorney and we could discuss having a family member appointed as the guardian (vs a state-appointed guardian). How likely would a state appointed attorney recommend guardianship to a family member? My mother flip-flops on her desire for treatment and cancelled all appointments after her hospital stays in March. I know because nurses would call me to let me know she cancelled her appointments. I've reached out to county offices that support the aging to initiate discussions about meals-on-wheels, in-home assistance, and other resources. However, upon discussing the calls I made to the county about obtaining resources, my mother reprimanded me and told me not to get involved. Ironically, my mother contacting these same organizations in March and I talked to the same person who offered to help. I think hospital #3 is very concerned about their risk (i.e., letting her sign herself out last week). I'm waiting to hear from hospital #4 where my mom currently resides. Do you have any information about emergency guardianship? Thanks for your prompt response!

I think you should file for guardianship ..or ask the hospital to file in your name not theirs

You mother has made it crystal clear, on many occasions, that she doesn’t want anything to do with anyone, most specifically, it seems, her family. Why were you so determined to cast about, finally finding an aunt who agreed to take her in after everyone else refused? Just because your aunt has done this before doesn’t necessarily mean it’s now her calling. Especially for such a difficult patient. I think from what you’ve written about Mom, you’d be sacrificing your aunt for her. I would not be so certain this arrangement would work and you ay be delaying the inevitable. Having her become a ward of the State may not be as bad as you think.

Well.

Given that your mother has arrived at the juncture as a member of her family, what makes you think that any member of that same family is equal to the task of directing her care now, when she has so effectively seen them off in all the preceding years?

I would say this is a job for professionals in any case. And while it is very sweet of your aunt to extend a welcoming hand to your mother even at this late and extreme stage, for one thing I seriously doubt that your aunt has the faintest idea of what she might have been letting herself in for and for another your mother has already bitten that hand. Has she not.

What do you believe the advantage would be of keeping this in the family?

First, did the hospital rep indicate they're filing for guardianship b/c your mother needs care as well as a greater level of supervision, and is not cooperating with them? Or is there another reason?

Has anyone at the hospital discussed with you your position on this, or that there is a relative who can act?

I'm a bit confused about the 4 - 6 period before a state attorney contacts you. Where will your mother be in the interim? Did anyone mention an emergency guardianship?

I think you need to have a good discussion with whoever the hospital appointed to contact you to delve deeper into their intentions and purpose. It may be that they're leaving the choice of guardian up to the court, so make sure they know there's a family member available.

HOWEVER, even then, there's still the issue of placement. With late stage cancer and CHF, she's going to need a lot of support. Is she getting chemo? Radiation? Taking care of a late stage cancer patient is demanding, and emotionally draining, and from your description, will be a challenge as she won't cooperate.