Why is there always so much month left at the end of the money?—Anonymous.
Adult children of parents with dementia come to see me when they are at their wit’s end. They need to vent. I let them, because I myself have been there, done that. Although I have not had the experience, often spouses need the same encouragement along with a discussion of what to do next.
When an independent adult begins the earliest stages of dementia – which never goes backward, but always progresses – they are often reluctant to accept needed help from children, spouses or care givers. They are reluctant to give up their car keys because they don’t understand that their reflexes have slowed to the point of being unsafe, and they have gotten lost several times. They don’t want to give up their checkbook, even though they are beginning to spend the funds saved for their old age and care on foreign lotteries and paying “bills” that are not actually owed. They don’t want to release control of their medication even though they often forget to take it, making their situation worse.
Advanced age, unfortunately, is often accompanied by dementia. This used to be called senility, I guess, but is now caused by Alzheimer’s Disease, vascular dementia, strokes of varying degree and any number of various illnesses, accidents and disease.
Seniors with dementia can also be at great physical and financial risk due to their own risky decisions and their susceptibility to abuse, either physical or financial or both. Depending on the situation, protecting seniors with cognitive impairment, as well as those around them, can be one of the biggest frustrations of life.
What can family members do when a parent or other loved one should stop driving, but refuses to do so? What if the parent responds to every telephone solicitation with a hefty check? What if a loved one refuses help in the house, or steadfastly resists moving to an assisted living facility?
Sometimes, seniors can be cajoled to do what’s best for them. Often someone they trust, such as the child who never visits but is welcomed as the “angel” of the family when they do show up. Sometimes a pastor or other trusted advisor can point out a wise course of action that will be accepted by the elder. However, too often they will not budge. In such instances, there is the legal remedy of guardianship. Unfortunately, as we shall see, the law can be a blunt instrument.
Every American has the right to determine where she will live, who can come into her home, and how she will spend her money. This personal autonomy can only be taken away by a court’s determination that an individual is so impaired that she will be injured unless someone is appointed to step into her shoes and make decisions for her.
In Maryland, the person the court appoints is named the guardian. This person, depending on the papers and requests filed, can be named either the “guardian of the person” or the “guardian of the property” or both. Guardianship procedures are problematic on a number of levels: a guardianship takes away the protected person’s rights – he can no longer make decisions for himself. He is called a “ward” and is declared to be incompetent, which can be hurtful. There is the cost of hiring attorneys and doctors to get through the process.
Additionally, the protected person’s situation and finances become part of the public record and the guardian must make annual reports to the court. Finally, many financial and estate planning steps that may be advisable can only be taken with court approval, which causes delay and increases legal fees.
Guardianship can be adversarial, as often the potential ward is angry and fights the appointment of a guardian. This adds to the time spent to get court approval and, correspondingly, to attorney’s fees. It can create rifts in the family which may never heal.
If guardianship is so difficult, why does anyone use that procedure? The answer is either because there is no alternative, or there has been a lack of important pre-planning for disability.
Frequently, guardianship can be avoided through planning while the senior is healthy and competent. By appointing agents through durable powers of attorney, health care proxies, will and trusts, an individual can choose, before he is no longer able to do so, who will make decisions for him. This can often avoid family disputes and the cost and delay of guardianship proceedings.
However, even with proper planning, family members sometimes have to resort to the courts. This is often the case when the senior has become so stubborn (is there a nicer word?) and is putting himself or others in danger, or perhaps when a third party is unduly influencing the senior. In such instances, going to court may be the only solution.
Senior Moments is grateful to Boston Elder Law Attorney Harry Margolies for many of the insights in today’s column.
Thank you for reading. Stay well. See you soon