When Guardianship Goes Awry
Sadly, guardianship often goes awry. It did for Patricia and Ada.
Patricia says her mother’s last words to her, spoken in that courtroom: ‘My lawyers promised me that they would destroy your family.’
Patricia wanted to be appointed Adas guardian because shed been growing increasingly anxious about signs of her mothers decline, including apparent dementia and numerous auto accidents. In 2011, Ada failed a written test and lost her license. In February 2012, when Ada was taken to Chilton Medical Center due to dizziness and fainting, she threatened to kill herself and her family and was then committed to Ramapo Ridge Psychiatric Hospital for observation. She was returned to Chilton and later voluntarily readmitted to Ramapo Ridge. While there, a doctor diagnosed her as suffering from bipolar disorder and senile dementia of the Alzheimers type.
Patricia was especially worried about Adas depression and suicide threats. Once, Patricia found an ice pick in Adas room. Her mother also kept a rope under her bed and had threatened to hang herself. Her bouts of paranoia terrified Patricia. On top of that, Ada resisted medical care for serious cardiac and respiratory issues.
But Patricia recalls frequent temper tantrums and constant mistrust eroding their relationship. They were the reason Ada refused to relinquish control over her affairs to Patricia and deeply resented the guardianship proceeding.
Do They Meet The Standards To Qualify For Guardianship
In Illinois, assuming guardianship of an adult is a legal process and the person in need of care or support must meet the states legal standard for disability. Broadly speaking, a person may be a suitable candidate for guardianship under Illinois law if they are 18 years of age or older and are not fully able to manage their person or estate due to mental deterioration, mental illness, or physical incapacity. The courts may also consider guardianship in cases where a person exposes themselves or their family to want or suffering and wastes their estate due to gambling, idleness, debauchery or excessive use of intoxicants or drugs.
In order to appoint a guardian, the court must find that an allegedly disabled person meets the qualifications described above by clear and convincing evidence.
The most important thing to keep in mind is that disability must prevent the person from making or communicating responsible decisions about his or her personal affairs, as the Illinois Guardianship & Advocacy Commission has put it. In such cases, guardianship may be necessary to protect the person and to promote the interests of others, such as service providers or creditors.
What Are My Duties As A Guardian
There are three types of guardianships. One is a guardian of the estate. A guardian of the estate only has the authority to manage assets for the protected person. A guardian of the person only has the authority to make decisions for the person, much as a parent does for a child. The third type is a guardian who has responsibility for the protected person and their finances.If you have guardianship responsibilities for the estate, you must manage their assets including cash, collecting rents, paying bills, managing real estate, investments, and other assets.
The guardian of the estate must also:
- Provide an inventory of the assets to the court within 60 days
- Post a bond as protection against mishandling of the protected person assets
- Periodically file an accounting of assets, income, and expenses with the court
- Obtain court approval to spend or invest the protected person money
- Obtain court approval for the sale of real estate
A guardian of the person can decide where the protected person will live and is responsible for providing food and medical care for the ward. A Guardian of the person must provide for the necessities of living such as food, clothing, shelter, emotional and medical needs of the ward. The guardian of the person must obtain court approval before authorizing life-threatening medical treatments or committing them to a psychiatric facility.
Recommended Reading: Alzheimers Dement
What Is The Difference Between A Surrogate Mother Traditional Surrogate And Gestational Carrier
There are two types of surrogacy: traditional, and gestational.Traditional surrogates are women who are genetically related to the child they are carrying. They are impregnated and carry the child with the intention of having another person care for the child as a parent upon birth. Sometimes they are referred to as a surrogate and egg donor.Gestational surrogates are those who carry the child in their wombs but are not genetically related to the child. This means that another woman’s eggs are used for conception . In such cases the embryo is created outside the body and transferred to the surrogate’s uterus shortly after conception.The term âsurrogate motherâ is used as an umbrella term and includes both traditional and gestational surrogates. The term âcarrierâ is often used by professionals in the fertility industry instead of âmotherâ to avoid suggesting that the woman carrying the child is a parent.Women who are impregnated with donor sperm who are genetically related to the child and who intend to raise the child themselves are not considered surrogates â they are simply called the mother. In female same-sex relationships the partner who is not carrying the child is often called the âco-motherâ.
Why Do I Need To Get Guardianship For My Parents
If one or both of your parents have been unable to handle their own affairs, youll need guardianship to have the legal authority to manage their affairs for them and to make healthcare decisions. The inability to handle their affairs can be persistent or intermittent.For example, someone with intermittent incapacity might be too ill to handle their affairs for more than a week or so at a time. A problem such a person might face would be if they have investments in the stock market and something happens that indicates they should sell a particular investment, but they dont because of their temporary incapacity.
When the duration of temporary incapacity is long enough for their power to be turned off or unpaid bills to cause damage to their credit rating, it is a sign that they need a guardian.
Read Also: Alzheimer Awareness Ribbon
How To Get Legal Guardianship
When someone is unable to make rational decisions about their life, or even to participate in discussions about issues affecting them, they may need a court to appoint a legal guardian for them.
Thats especially true if the person refuses to cooperate, such as moving from their old house to assisted living or a nursing home when they need that increased level of attention. Its also true if families do not agree on a course of action. You can help your loved one get power of attorney if they have the mental capacity, but if the person is too incapable to sign a power of attorney or another advanced directive , they need a guardian.
That does remove some of their legal rights as an adult, but in some cases it is necessary. When a court appoints you as someones legal guardian, that creates a fiduciary relationship between the two of you. You are legally responsible for them, and under the legal obligation to place their best interests above your own.
Can A Person With Dementia Change Their Power Of Attorney
The person living with dementia maintains the right to make his or her own decisions as long as he or she has legal capacity. Power of attorney does not give the agent the authority to override the principals decision-making until the person with dementia no longer has legal capacity.
Recommended Reading: Dementia Ribbon Tattoo
Lasting Power Of Attorney
A lasting power of attorney is a legal document that allows you to choose a person you trust to act on your behalf if you’re no longer able to make your own decisions.
This person is referred to as your attorney and must be over 18 years old.
You may think that if you’re married or in a civil partnership, your spouse would automatically be able to deal with your bank accounts and pensions, or make decisions about your care if you’re no longer able to.
But this isn’t true. Without an LPA, your spouse wouldn’t be able to act on your behalf.
An LPA can only be used after it’s been registered at the Office of the Public Guardian .
There are 2 types of LPA covering:
- property and financial affairs
- health and welfare
You can choose to do both LPAs at the same time, or just one. You can choose the same person to be your attorney for both. Or you can have different attorneys.
Things Needed To Claim The Guardianship Of An Elderly Parent
- If you have a parent who you think is in need of guardianship, youll need to obtain a physicians certificate or doctors letter. After an application is filed, the court will then go through its standard guardianship proceedings to determine whether you are fit to be a guardian.
- There are two common alternatives that lessen the burden of guardianship. Power of Attorney and Medical Power of Attorney grants a person the right to make financial and medical decisions when an elderly person becomes incapacitated.
- If you file for guardianship, no matter what, the court has to appoint an attorney to represent your loved one, the proposed ward.
When we think of guardianship we often imagine a child moving into the care of a friend or family member . But the process can also be used to obtain legal rights over elderly or aging adults who are losing their mental and physical capacities. For the most part the process is similar, but there are five key differences wed like to discuss when considering guardianship of an elderly parent. You want to carefully consider all aspects of the process to make sure its the best course of action for you and your aging loved ones.
Recommended Reading: Dementia Awareness Color
Seek Least Restrictive Alternative To Guardianship
Are there things that can help your parents that if put in place are less burdensome than a guardianship? Absolutely. Two common alternatives are:
- Power of Attorney This grants a person the right to make financial decisions for you when you become incapacitated. This is usually done by the elderly person when theyre putting their estate planning documents together.
- Medical Power of Attorney Like the Power of Attorney this person is responsible for all health related decisions of the incapacitated person.
Naming someone as your agent under a Power of Attorney is a private decision that does not involve a court. They are less costly than the guardianship process and they can be used by the elderly person to have more control over who takes care of them. These are by no means the only less restrictive alternatives to guardianship as there are a variety of supports and services that may be beneficial to your loved one. Of course, alternatives may have certain drawbacks that do not work for your particular situation.
If you have evaluated alternatives and have found them to not be feasible then it may very well be that guardianship is the best solution for your loved one.
What Are The Iowa Supreme Court Guardianship Forms
The Iowa Supreme Court has issued user-friendly forms for the guardians initial care plan and annual report for guardians of both adults and minors as well as the conservators initial care plan and annual report. The Supreme Court forms must be used by guardians that are not represented by an attorney.
Recommended Reading: Aphasia Alzheimer’s Disease
Submit Your Supporting Documents
Again, states have different requirements but on the whole, most want documentation that supports the need for guardianship.
Examples include a letter of competency from a physician, psychiatrist, or neurologist attesting to your parents inability to make safe and reasonable choices about their healthcare and finances.
How To Get Guardianship Of An Elderly Parent
When an older adult loses the ability to think clearly, it also affects their ability to make informed and meaningful decisions. This may occur due to the onset of Alzheimers disease or other related dementias, stroke, brain injury, mental illness or other serious health issues. If the person you are caring for is unable to make rational, clear-headed decisions about their health care, finances or other aspects of life, seeking legal guardianship may be necessary to ensure their safety and quality of life.
Read Also: Purple Ribbon Alzheimer’s
What Happens If You Don’t Make An Lpa
If you don’t make an LPA and later become unable to make decisions yourself, nobody will legally be able to make decisions for you.
This can make things difficult for your family as they won’t be able to pay bills or make decisions about your care.
When this happens, someone may need to apply to the Court of Protection to become a deputy. This gives similar powers to that of an attorney. But it’s a time-consuming and expensive process.
When Is It Too Late To Create Medical Power Of Attorney Documents
The decision to appoint an agent under a durable medical power of attorney instead of a guardian is not an option when dementia or Alzheimers disease has progressed to where a parent lacks an understandingcalled capacityto understand the purpose and provisions in the document. When an individual waits too long to execute estate planning documents, family members interested in a parents well-being must work through the court system to appoint a guardian or a conservator.
Filing for guardianship of a parent includes gaining an understanding of legal incapacity and the information to include in a guardianship petition. It is also important for the prospective guardian to understand the duties and responsibilities of being a legal guardian.
Recommended Reading: What Color Is Alzheimer’s Awareness Ribbon
Who Should Request An Emergency Guardianship Of An Elderly Parent
If there are multiple children in the family and some of them have a criminal record, the child with a clean record should request a guardianship. It is best for siblings not to fight over who becomes guardian because the court may name a third party instead of feuding siblings to avoid friction in the family.
Schedule Your Free Altcs Pre
Fill out the form below to discuss your best legal options.
The information provided on this website does not, and is not intended to, constitute legal advice instead, all information, content, and materials available on this site are for general informational purposes only.
Don’t Miss: Ribbon Color For Alzheimer’s
Guardianships Of Incapacitated People
Our Senior Partner, Jill Ginsberg, focuses a majority of her practice on protecting some of the most vulnerable members of society from abuse and exploitation. She does this through the Guardianship process. When many people hear the term Guardianship, they think of guardianships of minor children, but that is only one type of guardianship. Jills focus is on adults who can no longer take care of themselves and may need protection from abuse or exploitation.
Living Trust With Bank Trustee
A living trust is a useful document for bypassing probate. It can also be useful if you become incompetent. A bank trustee can manage your assets and youll rest easy knowing that there is regulatory oversight and a fiduciary level of responsibility that ensures the trustee acts prudently and in your best interests.
Whether you need to seek guardianship for an elderly relative with dementia, advice about setting up a Power of Attorney, or advice about acting as POA, contact a guardianship lawyer in Las Vegas for your needs.
For more than 30 years, Attorney Lee A. Drizin has practiced in the areas of estate planning, probate, trusts, guardianship and real estate matters representing clients throughout the state of Nevada.
Drizin Law is providing this information for educational purposes only. It should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. This information is based on general principles of Nevada law at the time it was created and you should be aware laws frequently change. Moreover, the laws affecting you may differ depending on the circumstances. You should consult with a qualified attorney in your own state or jurisdiction concerning your particular situation. Review of this information does not create an attorney-client relationship.
Read Also: Dementia Ribbon Colors
Learn What Life Is Like For A 24/7 Caregiver Or Guardian
Pamela D. Wilson, MS, BS/BA, CG, CSA is a national caregiving expert, advocate, and speaker. More than 20 years of experience as a court-appointed guardian, power of attorney, and care manager serve as Wilsons platform to increase awareness of caregiving as an essential role in life. She is a caregiving speaker and consultant who designs and offers on-site and virtual caregiver education and awareness programs and courses, leads caregiver support groups, offers individual elder care consultations for aging adults and family caregivers. Wilson hosts and produces The Caring Generation® podcasts, is the author of the book The Caregiving Trap, and is active through social media.
Prevalence Of Dementia In The Aging Population
As the population continues to age, the question of what does guardianship of an elderly parent mean will continue as a discussion. Many individuals over the age of 85 have dementia that is undiagnosed.
Elderly parents living alone are at risk if the family is not available to provide support. If you are uncertain about the early signs of dementia, a list of tips exists about signs and the importance of diagnosis.
Chronic disease is also increasing. Chronic disease is a diagnosis that is not immediately life-threatening but affects the quality of daily life. Chronic diseases include heart disease, diabetes, asthma and breathing difficulties, cancer, and arthritis.
Becoming more aware of the effects of chronic disease is important for guardians as these diseases affect the ability of an elderly parent to remain at home.
High contact, high touch is required by guardians to attend medical appointments and to learn about medical treatments. Managing medical care is the primary responsibility of a guardian.
You May Like: Neurotransmitter Involved In Alzheimer’s