Legal Issues when someone has Dementia – Family conflict in Guardianships

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.  Today’s installment will discuss the family disputes that can arise during a Guardianship proceeding.

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.  Unfortunately, guardianship is not often a pleasant experience.  I describe it as Purgatory at its best and Hell at its worst.

In Ohio’s guardianship process, the would-be guardian applies to the probate court asking to be named guardian over a proposed ward.  By making a guardianship application, the would-be guardian has alleged that the proposed ward (frequently a family member of the would-be guardian) is incompetent to handle his or her own affairs.  This allegation of incompetence can provide the spark that triggers any bad feelings in the family to explode.  This is where the sibling rivalry (or any other family dysfunction) mentioned in the introductory post of this series (April 30, 2015) can raise its ugly head.

Upon learning that the would-be guardian has asked the probate court to find the proposed ward “incompetent,” the proposed ward is likely to feel angry.  If the would-be guardian is one of the proposed ward’s children, the proposed ward is likely to feel betrayed.  Other family members who have influence over the proposed ward and who, at the same time, have their own anger or resentment toward the would-be guardian, can help the proposed ward oppose the guardianship application.  If the family members’ anger and resentment toward the would-be guardian is large enough, the family members might try to get the proposed ward to feel anger, resentment, and mistrust toward the would-be guardian.

Imagine for a moment the Smothers brothers, Tommy and Dick.  (If you’re not old enough to remember the Smother Brothers show, look it up on the internet.)  One of the long-running jokes was Tommy’s complaint to Dick that “Mom always liked you best.”  (I know that this example is from show business, not reality, but I can’t use clients’ names in a public article, can I?)  Suppose that Mom Smothers really did love Dick best.  Now, suppose that Mom was stricken by a disease that causes dementia and has not planned ahead with Powers of Attorney.  Dick, being the son emotionally closest to Mom, applies for guardianship.  Tommy, who has always resented Mom’s favoritism of Dick, tries to turn her against Dick by making her feel betrayed because Dick says she’s incompetent to handle her own affairs.  (That’s what a guardianship application means.)  Remember, Mom suffers from dementia.  Mom may not remember that she loves both of her sons.  She may not remember that Dick has been looking out for her for decades.  Because of her dementia, it might be easy for Tommy to exert undue influence on Mom and turn her against Dick.  Tommy might then help Mom oppose Dick’s guardianship application, even if Tommy believes that Mom needs a guardian.  If this happens, Mom has become the pawn in the sibling rivalry between Tommy and Dick.  Unfortunately, this kind of thing happens in real life too.

To be fair, Tommy might feel that Dick is overreacting to Mom’s illness.  Tommy may feel that Mom is not incompetent and deserves to be allowed to continue to control her own life.  Unfortunately, it’s impossible for anyone to know what Tommy and Dick feel in their heart of hearts.  The probate court (and the rest of the world, for that matter) can see only Tommy’s and Dick’s actions.

Because of family relationships (and occasionally, friend relationships,) it may not be just the decision of the proposed ward that determines whether the guardianship application is opposed or unopposed.  It can also be a decision by another interested family member or friend influencing (for righteous reasons or for selfish reasons) the proposed ward to oppose the guardianship application.  This is the tipping point that determines whether the guardianship process feels like Purgatory or feels like Hell.  If the proposed ward does not oppose the application, expect Purgatory.  If the proposed ward opposes the application, expect Hell.

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