Legal Issues when someone has Dementia – Difficulties for a Family Member as Guardian

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.  Today’s installment will discuss the difficulties that might arise for a family member acting as guardian.

When the person’s disease has taken away the decision-making ability and the person has not prepared advance directives appointing someone else to make decisions, the next legal alternative is guardianship.  To establish a guardianship, a Probate Court must determine that the proposed ward (the person with the dementia-related disease) is, in fact, incompetent (i.e., unable to handle his or her own affairs because of a mental impairment) as discussed two weeks ago.  If the court determines incompetence, the court must then determine if there is a less restrictive alternative available, as discussed last week.  If the court determines that the proposed ward is incompetent and that no less restrictive alternatives are available or will work with this proposed ward, the Probate Court must then determine who is the best available guardian, often looking to family members. A family member offering to act as guardian should be aware of the expectations of a guardian and what challenges might be ahead.

In Ohio,  a guardian needs training  The introductory guardianship course is 6 hours of training in a day-long course.  The training requirements became tighter, especially for attorneys, in 2015 as a result of a scandal in Columbus when certain professional guardians were found to have responsibility for more than 300 wards.  After a series of newspapers articles on the county’s guardianship program, questions arose regarding the level of involvement that a guardian could have with so many wards.  (Because the training is so new and is supposed to apply to guardians already in service as well as to new guardians, the training requirements are only slowly being implemented.  As a result, family members and friends volunteering to be guardians may not be required to undergo training immediately, especially in populous counties.)

In addition to spending time in training, the family member willing to be guardian has to undergo the examination of the court regarding his or her fitness to serve as guardian.  That will include a background check tied to the would-be guardian’s social security number.

If the guardianship is contested or there is a family fight over who should serve as guardian, the examination will go far beyond the background check.  The prospective ward and the other family members who oppose the guardianship or the would-be guardian might pull out all the stops.  There might be very demanding information requests during the “discovery” process.  (Remember, this is court litigation.)  There might also be very harsh testimony in the court’s hearings.  (Despite the oath to tell the truth, the whole truth, and nothing but the truth, do not be surprised if the testimony includes accusations, feelings, gossip, and exaggeration.  A contested guardianship is very much like an ugly divorce trial.  It’s not just “the facts and nothing but the facts.”  There’s lots of anger.)

If the family member becomes guardian, the guardian becomes responsible for all of the affairs of the ward.  Unless the guardian is for the person only, the guardian is responsible for the ward’s business affairs.  Imagine balancing someone’s checkbook and then having someone double-check your work.  That’s not far off from the court’s oversight of a guardian’s handling of the ward’s money.

But the business affairs can go beyond just the checkbook.  One friend of mine serving as a guardian had to determine whether to have a tree in the yard cut down.  Guardianship is a real hands-on job.

In a particularly painful case that I’ve experienced, a daughter reluctantly agreed to be her mother’s guardian.  Her mother was in a nursing home.  The guardian dutifully paid for the nursing home every month until Mom’s money had all been spent.  (The guardian had not talked with an elder law attorney about the possibility of sheltering any of Mom’s life savings from the costs of long term care.  Even if she had brought in an elder law attorney, the sheltering of assets within a guardianship is tricky because of the obligation to use the ward’s assets only for the good of the ward.)  When the money was gone, the daughter put Mom’s real estate up for sale.  (Unfortunately, this was during the recent real estate market meltdown, so no offers came.)  At the same time, the daughter/guardian applied for Medicaid.  The Medicaid caseworker, however, denied the application incorrectly.  The guardian, not knowing what else to do and finding no one (including the nursing home’s social worker) who would help, all but collapsed emotionally under the pressure.  After more than two years of non-payment for Mom’s care, the nursing home sued the guardian personally, alleging that she was negligent in managing her Mom/ward’s affairs.

As if managing the ward’s business affairs weren’t difficult enough, the guardian (unless a guardian of the estate only) is responsible for the ward’s personal affairs.  That means that the guardian has to make choices on where the ward will live, who can visit the ward, whether a reluctant ward will be required to shower, and many other similar choices.  Some of these can be pretty tough to handle emotionally.  For example, the guardian might have to decide whether to maintain life support for a gravely ill ward.  Even more often, a guardian must decide whether to keep up an active fight to maintain an aging ward’s health or to adopt a symptom and pain management approach such as palliative care or hospice care.  In other words, some of these decisions are life-and-death decisions.

It can be very hard to be the guardian for a loved one.


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