This is the first of two blogs (today and tomorrow) on an important topic. I hope you find it helpful.
In a perfect world, we could move through our lives from cradle to grave without such things as guardianships and conservatorships. But in order to achieve this perfect world, we have to do advance planning to provide for our own care if we become impaired or incapacitated, and we need trustworthy, responsible and financially astute family members who are willing and able to assist us. For some, these "perfect world" conditions do exist; others are not so lucky.
The most likely scenario we are faced with in our practice is with seniors that comes to us, often brought by their children or children-in-law, when mental incapacity has set in, and although they appear to have willing and able family members who can care of them, assist with making personal care and living decisions and manage their finances, they have not executed the necessary documents to empower these helpers to serve as their agents.
Here are some scenarios you may not be aware happen all to frequently:
- Seniors have documents in place, but the people named are dead or no longer available, willing or appropriate to serve.
- The people who the senior trusted and anticipated would be appropriate have become exploitive and abusive to them.
- Seniors have been conned into paying for, or agreeing to pay for, fraudulent products and/or services.
- Elder abuse in its many forms – including fraud by unscrupulous "vendors," financial exploitation, and physical or emotional abuse by "friends" and relatives – is a huge problem in the United States. The topic is being exposed in the 21st century much like child abuse and spousal abuse came into public view and began to receive legislative solutions during the late 20th century.
- Another increasingly common situation is where seniors do not have agent-delegation planning in place and end up in a medical or living condition crisis where they are putting themselves or others at risk. Loyal family members and friends are very concerned, but nobody has the power to assist once they learn what needs to be done.
- Alternatively, seniors may have excellent voluntary delegation planning in place, but the seniors are noncompliant about what they now need to do for their own safety and care. For example, they may need to live in an assisted living community or nursing home, but they voluntarily check themselves out and depart. They are free to make their own decisions, even though imprudent or unsafe, so they can walk right out and put themselves in danger. If they have access to an automobile, they put the general public at risk as well.
- In emergencies, where the seniors are unwilling to cooperate and their intransigence is putting themselves or others at risk, often the first call should be to Adult Protective Services (APS). APS is a state agency, typically within the department of "human services" or "social services" of the particular state. APS generally will appoint a social worker or other staff person to investigate, perhaps with local police in order to gain access to the senior and entry into the home.
Whether or not Adult Protective Services gets involved, and whether or not the case is an emergency or just a situation where the senior needs help and is not willing or able to sign voluntary agent-delegation documents, the solution is often a guardianship ( for healthcare decisions) and conservatorship (for financial decisions) over the senior, if he or she meets the applicable standards of incapacity. (Less commonly, where mental illness other than dementia is the apparent cause, "involuntary commitment" may be necessary to place the senior is a hospital psychiatric ward for analysis.)
Part II of this series is tomorrow’s blog