Legal Issues when someone has Dementia – Terminating a 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.  Today’s installment will discuss the termination of a guardianship.

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.  The guardianship can be terminated if the ward has few enough assets that a guardianship of the estate seems no longer necessary or advisable.

When considering the termination of a guardianship, the probate court must find that the termination of a guardianship is in the best interest of the ward before terminating.  I must admit that I feel this “best interest of the ward” seems, to me, an impediment to the termination of almost all guardianships except where the ward has gotten “better” and is no longer incompetent or has passed away.  For a ward that remains incompetent, the termination of a guardianship takes away the person who can make health care decisions for the ward.  That seems, to me, an overriding reason not to allow a guardianship to terminate.

If the ward passes away, the guardianship ends automatically.  The guardian will need to prepare a final accounting of the now-deceased ward’s business affairs, but the ward’s demise ends the need for a guardian.

Also, if the ward no longer needs a guardian, the probate court can end the guardianship once the court is comfortable of the ward’s renewed ability to handle his or her own affairs.

A guardianship can, theoretically, be terminated upon a demonstration that less restrictive alternatives have been put in place since the commencement of the guardianship.  (This one is unusual because the probate court has every reason to wonder why these alternatives were not in place before the guardianship application.)

A guardianship that became necessary because the ward repeatedly tried to elope from a care community can be terminated if the ward’s health deteriorates, taking away the mobility necessary to elope.  (A termination for this reason is unusual because the deterioration of the ward’s health that took away the ward’s mobility also makes the life expectancy short, making a change in the guardianship status seem not worth pursuing.)

A guardianship can also be terminated if the ward’s assets fall to a low level (in Ohio, that amount is $25,000.)  At that level, a ward has very little with which to pay the guardian for services.  This possibility of terminating a guardianship because of poverty disturbs me.  The guardianship of the person is at least as important as the guardianship of the estate, but the ward’s need to have someone look out for his or her health and bodily welfare does not end because of poverty.  I can’t see how terminating a guardianship because of poverty is in the ward’s best interest, but it does happen.

 

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