Is it time for guardianship for your mother or father?

 

There comes a time in many of our lives when we believe our parents are unable to care for themselves any longer. If you are in that situation, you should understand what you can do outside of having legal authority over your parents and what you can do if you have a court Order.  This article will hopefully help you understand that.

The first thing that you should do is ensure that your parents have a Durable Power of Attorney for their financial affairs, as well as an Advance Healthcare Directive for their medical affairs. These documents must be completed and signed by the person appointing another to make decisions.  These documents must be signed while that person is legally competent.  It is too late after that person lacks capacity to make decisions for themselves.  Therefore, while your parents are younger and in good health and spirits, sit down with them and urge them to create these two documents.  The person appointed by these two documents, generally speaking, will never need a court Order for any purpose.  As with all rules, there are exceptions to this generalization.  If you have a Durable Power of Attorney for your parents’ financial affairs, most businesses, banks, and institutions will accept this power in lieu of your parents actually participating in whatever business transaction you are conducting.  If you have an Advance Healthcare Directive, medical providers will work with you to assist your parents. Hospitals will accept the Advance Healthcare Directive and allow the appointed person to begin making medical decisions for their parents. However, here we are talking about how to handle the situation if your parents have failed to generate these documents.

A guardianship is a court ordered position where the court has found your parent lacks capacity to make reasonable decisions for themselves. This generally will occur when the person can no longer feed, clothe, bathe, take medications and otherwise generally care for themselves. There is no absolute standard for guardianship. It is left to the discretion of the judge after hearing testimony from interested people, including the person over whom the guardianship is proposed. You should consider seeking a guardianship for your parent whenever they begin making irrational decisions or when the medical providers tell you they can no longer accept your directions for your parent. With the new HIPPA laws, doctors and hospitals are prohibited from sharing a person’s medical records with anyone. Unfortunately, this covers the situation of children taking care of their elder parents. You will probably notice your parents need for a guardianship first as it relates to their financial affairs. They will begin either giving their money away (or hoarding their assets) through irrational decisions. Each is a common characteristic of a person who is losing their capacity to manage their affairs. Guardianship hearings in the Probate Court are very emotional hearings. Rarely does the person over whom the guardianship is proposed want the guardianship imposed on them.

One condition for which a guardianship will not be granted is when a person quits taking his medication.   In some instances, people have been diagnosed with mental illnesses and prescribed medications to control that illness.  So long as that person takes the medication, they are generally, fine, but when the person stops taking this medication, they become irrational or uncontrollable.  The court, generally speaking, cannot impose a guardianship over that person because while on medication, they are perfectly safe to be alone and are capable of caring for themselves.  Furthermore a guardianship does not give the Guardian the power to make the ailing person take medications.  There are no laws on the books that can be used to force a person to take drugs they do not wish to take.  Therefore, you cannot use a guardianship as a means to enforce some type of medicine therapy. The court is taking the individual’s rights away as it relates to that person’s ability to make decisions about living arrangements, doctors, and generally any other normal day-to-day decisions that most of us take for granted. Because of the seriousness of this Order, many safeguards are in place to ensure that the person who’s rights are going to be affected has representation at the trial as well as, in many cases, another person appointed to generally investigate the condition of the person. These trials might take an hour or many days depending upon the issues to be decided and the evidence to be heard. Generally, guardianships are quite expensive.

Included with the general topic of guardianship is also a conservatorship. Conservatorships are simply guardianships over a person’s property, whereas a guardianship is control over the person himself. The two positions are usually asked for in the same decision and evidence as to both positions are heard in the same trial. The standard used to determine whether a Guardian is needed or whether a Conservator is needed is slightly different. Therefore, there are instances where one may be granted, a conservatorship but not a guardianship, or the other way around. In most cases, both positions are either granted or denied. Any adult relative can file for guardianship with the preference being the spouse of the ailing individual and if there is no spouse, then adult children of that parent.  If none of the children are willing to seek guardianship over their parents, then, any other interested person may apply and in some case, even the State will apply to take control over the parents.  This is the last resort and hopefully not one that anyone is subjected to.

If you have need help with the guardianship or conservatorship, feel free to call our office to speak to one of our attorneys.

 

 

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