Legal Issues when someone has Dementia – Alternatives to Guardianship

This week’s blog continues the discussion of Legal Issues when someone has Dementia.  The introductory installment (April 30, 2015) put forth the issue of “Who can speak for someone with dementia?”  The May 14, 2015 installment discussed the situation where the person with dementia has Advance Directives in place.  The May 21, 2015 installment discussed the legal issues in determining whether a dementia sufferer can choose to have new Advance Directives prepared.  The May 30, 2015 installment discussed options in preparing a Health Care Power of Attorney.  The June 4, 2015 installment discussed how to decide whether to prepare a Living Will.  The June 11, 2015 installment discussed some of the basic issues in preparing a General Power of Attorney.  The June 18, 2015 installment discussed the importance of making the General Power of Attorney “durable.”  The June 25, 2015 installment discussed the importance of NOT making the General Power of Attorney “springing.”  The July 2, 2015 installment discussed revoking prior Powers of Attorney.  The July 9, 2015 installment discussed Do Not Resuscitate orders.  The July 16, 2015 installment discussed the Right of Disposition designation.  The July 23, 2015 installment discussed the Will (or Last Will and Testament.)  The July 31, 2015 installment discussed beneficiary designations on life insurance policies, IRAs, annuities, etc.  The August 6, 2015 installment discussed whether to pre-plan a funeral.  The August 14, 2015 installment discussed choosing a final resting place.  The August 28, 2015 installment discussed pre-planning the funeral ceremony.  The September 3, 2015 installment discussed when and how to pay for the pre-planned funeral.  The September 10, 2015 installment discussed medical insurance choices.  The September 17, 2015 installment discussed long term care insurance.  The September 24, 2015 installment discussed how an elder law attorney can help.  The October 1, 2015 installment introduced the concept of guardianship.  The October 8, 2015 installment discussed the application process for guardianship.  The October 22, 2015 installment discussed the family disputes that can arise during a Guardianship proceeding.  The November 12, 2015 installment discussed the Probate Court’s examination of the alleged incompetence of the proposed ward in a guardianship proceeding.  The November 19, 2015 installment discussed the Probate Court’s examination of “less restrictive alternatives” to guardianship.  The December 4, 2015 installment discussed the Probate Court’s examination of who should be the guardian.  The December 10, 2015 installment discussed the difficulties that a family member might face if appointed guardian.  The December 17, 2014 installment discussed the difficulties that a family might face if a professional guardian is appointed for a loved one.  The January 14, 2016 installment discussed the termination of a guardianship.  Today’s installment will discuss alternatives to guardianship.

When someone has dementia and he or she seems to no longer have the ability to make decisions necessary to prepare powers of attorney and, for whatever reason, a guardianship is not appropriate or not wanted, options for having one person specific person able to make decisions have become limited.

Now, even though the person seems to longer have the ability to prepare powers of attorney, he or she might have some lucid moments in which to make such decisions.  The family can seek the help of an estate planning attorney.  If the attorney is satisfied that the person can decide to sign powers of attorney, the attorney can prepare them.  These new powers of attorney designate who can make decisions when the person’s lucid moments have gone.

In the absence of the person’s own ability to make decisions and the absence of someone appointed to make decisions (ether through a power of attorney or a guardianship,) the caregivers for someone with dementia have to rely on guidance from the next of kin (which can be very tricky if the family disagrees.)

If even input from the next of kin isn’t available, the caregivers are left to their consciences.  They must do what is necessary for the person with dementia and do what they know in their hearts to be the right thing to do.

With the difficulties, inconveniences, and sometimes strife that can come from a guardianship proceeding, some families in which someone suffers from dementia might choose to forego guardianship and, instead, muddle through as best they can.  I can’t fault families that make this choice.

Unfortunately, some people with a disease that causes dementia will not have a designated decision-maker.  In such cases, caregivers are forced to do their best with only their own caring hearts and their experience to guide them.


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