My client came to see me at her wits end about what to do about her father. He was suffering from early Alzheimer’s disease, but would not accept help. He ate irregularly and was losing weight. He refused to give up driving, although he had gotten lost several times. My client had a power of attorney for her father, but was sure that if she used it, he would revoke it.
Advanced age, unfortunately, is often accompanied by dementia, whether from Alzheimer’s disease, strokes, small and large, or any of a number of other illnesses. By some measures, half of those over 85 suffer from dementia. The more severe the dementia, the more assistance seniors need getting through the day.
Seniors with dementia can also be at great physical and financial risk due to their own risky decisions and their susceptibility to abuse, either physical or financial. Depending on the situation, protecting seniors with cognitive impairment, as well as those around them, can be difficult.
What can family members do when a parent should stop driving, but refuses to do so? What if the parent responds to every telephone solicitation that comes their way? What if a loved one refuses help in the house or resists moving to an assisted living facility?
In many instances, seniors can be cajoled to do what’s best for them—but as with my client, that’s not always the case. In such instances, there is the legal remedy of guardianship. Unfortunately, as we shall see, the law can be a blunt instrument.
Every American has the right to determine where she will live, who can come into her home, and how she will spend her money. This personal autonomy can only be taken away by a court’s determination that an individual is so impaired that she will be injured unless someone is appointed to step into her shoes and make decisions for her.
What is Guardianship?
The person the court appoints is named either a “guardian” or “conservator” depending on the state’s nomenclature and rights transferred. In many states, a “guardian” is appointed to make personal decisions, such as where the protected person will live and what health care she will receive, while the “conservator” makes financial and legal decisions. The two roles can be filled by separate people or by the same person.
Guardianship proceedings are problematic on a number of levels.
- They take away the protected person’s rights – he can no longer make decisions for himself.
- He is declared to be incompetent, which can be hurtful.
- There is the cost of hiring attorneys and doctors to get through the process.
- The protected person’s situation and finances become part of the public record and the guardian and conservator must make annual reports to the court.
- Finally, depending on the state, many financial and estate planning steps that may be advisable can only be taken with court approval, which causes delay and increases legal fees.
In my client’s case, she was sure that if she sought guardianship, her father would be very angry and fight the appointment. This would add to the time spent on getting court approval and correspondingly to our charges as attorneys. It could also create a rift between my client and her father which may or may not heal over time.
Avoiding Guardianship
So, if guardianship and conservatorship are so difficult why does anyone use these procedures? The answer is either because there is no alternative or due to lack of planning.
Often, guardianship and conservatorship can be avoided through estate planning while the senior is healthy and competent. By appointing personal representatives through durable powers of attorney, health care proxies and trusts, an individual can choose who will make decisions for him before he is no longer able to do so. This can avoid family disputes and the cost and delay of guardianship proceedings. It can also give the appointed person more freedom to take the appropriate steps to protect the senior.
Nevertheless, even with proper planning, family members sometimes have to resort to the courts. This is often the case when the senior has become obstreperous and is putting himself or others in danger, as in the case of my client’s father, or when a third party is unduly influencing the senior. In those instances, going to court may be the only solution.
I advised my client that she really had no choice but to act or her father and, potentially other drivers and pedestrians, are at great risk.
In terms of the car, we took two steps. We notified the department of motor vehicles that he was at risk so that they would ask the father to come in for a test. And my client removed the carburetor from the car. While her father was upset, he could not determine why the car would not start.
To protect most of her father’s funds, with the cooperation of her other siblings, our client used her durable power of attorney to move them to a separate account in her father’s name. She left a limited amount of funds in his bank account that he could control and spend as he chose.
Harry Margolis founded Margolis & Bloom LLP, a six-lawyer Boston law firm in 1987. He has been a designated “Super Lawyer” since 2005 and is Founder and President of ElderLawAnswers that supports seniors, their families and their attorneys by providing various online tools and resources.
