Legal Issues when someone has Dementia – “Less Restrictive Alternatives” analysis in Guardianship Hearing

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.  Today’s installment will discuss the Probate Court’s examination of “less restrictive alternatives” to guardianship.

When a person’s dementia-causing 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 last week.  If the court determines incompetence, the court must then determine if there is a less restrictive alternative available.

The probate court looks for alternatives because, frankly, managing a guardianship relationship can be a pain in the butt for the guardian, the ward, the ward’s family, and the probate court.  Imagine balancing your checkbook and then having the probate court double-check your work.  That is a fair description of the financial side of a guardianship.  (As a practical matter, the probate court might start with the “less restrictive alternative” analysis because it’s easier and less emotionally charged than the incompetency decision.)

The classic example of “less restrictive alternative” is the existence of valid Powers of Attorney, both for business decisions and health care decisions.  If the proposed ward had planned ahead for his or her own possible incompetency, he or she might have put in place these Powers of Attorney (as discussed in the May 14, 2015 installment.)  If, however, as discussed previously, there are disputes on the validity of the Powers of Attorney, the probate court may have to rule that they are not good alternatives, even if less restrictive than a guardianship.  (These disputes can be especially ugly when the Powers of Attorney were prepared only recently (i.e., at a time when the proposed ward was probably already suffering from the dementia-causing disease.)  Perhaps the ugliest version of these disputes is when the recent Powers of Attorney replace and revoke older Powers of Attorney, from obviously long before the dementia-causing disease had started.)

In a more frequent, and difficult, situation, the dementia sufferer resides in a secure dementia unit but has not adapted to staying on the unit.  Perhaps the resident frequently tries to elope and does not respond to distraction or redirection techniques.  Perhaps, the resident becomes belligerent and physical or exhibits other difficult behaviors.  As a matter of law, unless a probate court has declared that resident to be incompetent, the resident has the legal right to leave.  Leaving, however, may not be a safe situation for the resident.  Even if the resident has Powers of Attorney in place, the Agent named in those Powers of Attorney does not have the legal authority to make the resident (the Principal in the Powers of Attorney) stay on the dementia unit.  The Powers of Attorney do not take away the Principal’s legal authority to make his or her own decisions.  The Powers of Attorney merely empower the Agent to make certain decisions in the place of the Principal or for the convenience of the Principal.  If the Principal makes a different decision (wanting to leave a secure unit, for example,) the Agent is not legally authorized to overrule the Principal.  In such a situation, existing Powers of Attorney do not provide a sufficient alternative to a guardianship.  A guardian the legal authority to make the ward (the person with dementia) stay on the secure unit.

NOTE:  Do not expect a blog installment next week (Thanksgiving.)

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