Legal Issues when someone has Dementia – Picking the Best Guardian

Note:  There was no blog last week (Thanksgiving.)

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.  Today’s installment will discuss the Probate Court’s examination of who should be the 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.

When a proposed ward is determined to be incompetent and to have no viable “less restrictive alternative,” the probate court must decide whether the applicant is the appropriate guardian.  If the proposed ward’s family has some sort of internal strife, the choice of guardian is another point that is easy to contend.  If the applicant cannot convince the probate court that he or she is the right person to be guardian, the court might consider another family member or another interested person.  If no one with a prior connection to the proposed ward is both acceptable to the court and willing to serve as guardian, the probate court will turn to one of its local people (usually an attorney) to act as guardian.  (If someone other than the original applicant is to be named guardian, that person may need to complete an application.  The medical statement isn’t necessary on this substitute application, so the new application is less time consuming than the original application.)

Acting as a guardian is no small undertaking.  It requires a certain amount of training and time dedicated to visit the ward periodically.  It also requires time to manage the ward’s finances and property (if the guardian has responsibility for the estate) and to report to the probate court.  Because of a series of articles in the “Columbus Dispatch” describing some of the practices of professional guardians and of the probate court in Franklin County, Ohio (the county that includes Columbus,) the state of Ohio has instituted rules requiring more training for guardians and mandating more visits with wards.  Guardianship is not a responsibility to be taken lightly.

When a guardian is named, the guardian is put in charge of the ward’s estate and the ward’s person.  The guardian being in charge of the ward’s person means that the guardian is in charge of the ward’s health and body.  The guardian makes all health care decisions, and the guardian decides where the ward will live.  If necessary, the guardian will decide what the ward will where.  (That is not an issue except in special circumstances, for example, when a ward wants to dress in summer clothes in the winter when an adverse health consequence might occur.)  The guardian even decides who can visit the ward.  (This is not usually an issue except when someone is trying to take advantage of the ward or when the guardian is the child of the ward and has some deeply entrenched rivalry with a sibling.)  This guardianship of the person power is what allows a guardian to order that a ward must stay in a nursing home when the ward, left to his or her own choice, would leave the nursing home.

The guardian is also put in charge of the ward’s estate.  The ward’s estate is all of his or her possessions, money, and other assets.  The guardian is now in charge of the ward’s bank account, the ward’s house, the ward’s clothes, the ward’s furniture, and everything else that the ward owns.  The guardian must see that the ward’s bills are paid and that the ward’s income actually comes in.  (As an example of how detailed the “estate” obligation can be, a friend of mine who acts as a guardian had to approve the removal of a dead tree from the ward’s property.)  The guardian must report periodically to the probate court to show proper management of the ward’s assets.  The guardian for acting as guardian from the ward’s assets and income.  If the guardian also acts as the ward’s attorney (which sometimes happens with professional guardians,) the attorney fees are paid in addition to the guardianship fees.  When the ward is married and the guardian is not the spouse (which happens sometimes,) the guardianship over the estate can become very tricky or even contentious because the spouse must share money management with the guardian, an outsider to the marriage.

In some circumstances, a guardian of the estate can be a different guardian than the guardian of the person.  That is unusual and can cause disagreements between the guardians.  For example, if a guardian of the person wants the ward to live in a particular community and the guardian of the estate does not like that community, the guardian of the estate has the power to withhold payment.  As a result, split guardianships are rare.

If a ward is on Medicaid for long term care (which means that the ward has very few assets,) a guardian of the person can be appointed to make non-financial decisions.  (Because of the few assets, the need for care, and the Medicaid system, the financial decisions pretty much sort themselves out.)  Because of the ward’s limited funds, such guardians-of-the-person only are volunteers.  (In fact, I am a volunteer guardian for a gentleman on Medicaid.)  A volunteer guardian may be necessary when the ward has no family or when the ward’s family feels incapable of making difficult decisions.

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