Legal Issues when someone has Dementia – 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.  Today’s installment will discuss guardianship.

So far this series has discussed what can happen when the person with dementia has advance directives in place (i.e., has appointed someone to make decisions for him or her through Powers of Attorney documents) and the actions that should be taken if the person does not have advance directives in place but still has the legal capacity to make his or her decisions.  Today’s installment will discuss what may be necessary if the person with dementia does not have advance directives and does not have legal decision-making capacity.

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.  Unfortunately, guardianship is not often a pleasant experience.  I describe it as Purgatory at its best and Hell at its worst.

In Ohio’s guardianship process, the would-be guardian applies to the probate court asking to be named guardian over a proposed ward.  The would-be guardian can be family member, a friend, or a professional guardian (someone who earns a living acting as guardian, usually for several people.)  If the would-be guardian is a family member or friend, the would-be guardian probably has reason to believe that the proposed ward cannot handle his or her own affairs.  If the would-be guardian is a professional, the proposed ward has probably been referred to the probate court by a social worker or other similar professional.  A hospital social worker may refer a patient to the probate court, for example.  Similarly, an investigator from Adult Protective Services may refer a proposed ward to the court.  Anyone who has knowledge (and usually experience) in the needs of people who have limited legal decision-making ability, such as a police officer, a paramedic, a nurse, a doctor, etc., can make a referral.  If there is not a family member or friend who agrees to act as guardian (and receives court approval to act as guardian,) the court may ask one of the professional guardians who routinely work with the court to apply to be guardian.

The decision on guardianship is a 3-step process (in Ohio, anyway.)  The probate court must determine whether the proposed ward is “incompetent.”  The probate court must determine whether there are “less restrictive alternatives.”  Finally, the probate court must decide whether the applicant is the appropriate person to be guardian.  (There is an expedited process for when a guardianship is necessary quickly, like for an accident victim who suddenly loses the ability to handle his or her affairs.  In Ohio, the expedited process can result in an emergency guardianship or an interim guardianship, but both of these are only temporary.  If the need for a guardianship will be long-term or permanent, an emergency or interim guardianship may be replaced by a “regular” guardianship after the full guardianship process is completed.)