Category Archives: Legal Issues when Someone has Dementia

HIPAA Release as part of Estate Plan in case of Long Term Care

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Last week’s installment (May 19, 2017) discussed everyone should include a HIPAA Release as part of an estate plan in case of emergency.  This week’s installment will discuss the importance of a HIPAA Release when someone needs long term care.

As mentioned last week, a HIPAA release allows a person’s health care providers to share private health information with whomever is named in the HIPAA release.  Also as discussed last week, the person’s health care providers may not feel able to share such information even with the person’s Health Care Agent until the patient is unable to make decisions for himself/herself.  (Remember, the Health Care Agent is the person appointed in a Health Care Power of Attorney to make health care decisions when the patient, called the Principal for purposes of signing the HIPAA Release.)  Fortunately, or unfortunately, the privacy requirements also apply to long term care providers.

The applicability of the HIPAA’s privacy requirements to long term care providers is fortunate because we all should be able to keep our health information private and to expect our providers to keep it private as well. It helps us maintain our dignity (even in the face of the frequent indignities that accompany long term care.)

On the other hand, the applicability of HIPAA’s privacy requirements to long term care providers is unfortunate because it sometimes keeps concerned family members out of the loop.  In fact, sometimes long term care providers use the privacy requirements to stifle pushy family members.  Concerned family members can (and should) ask questions about a loved one’s care.  Concerned family members should try to participate in the quarterly care conferences required for people receiving long term care.

However, when the staff gets tired of the family member’s pushiness, the staff can invoke the HIPAA privacy requirement to explain the need to stop sharing information with the family members.  A member of management might apologize for the inconvenience and for the inadvertent sharing of information in the past (“until we realized our mistake.”)  Nonetheless, the staff might suddenly invoke the privacy requirements to exclude the pushy family member from care conferences and maybe even day-to-day discussions of the loved one’s care and condition.  The staff might even invoke the privacy requirement against a Health Care Agent if the Principal (the loved one receiving care) hasn’t been legally deemed incompetent.

The staff’s real goal might not be adherence to the privacy rules but might be extricating themselves from someone they consider a bother.  It may not be fair.  It may not be right.  Yet, caregiving staff has a tough enough job.  Shutting down someone they deem an interference might bring them a little relief.  (Not everything that we like or want is fair to others.)

So, people who want their family members and or friends to be able to advocate for them in long term care should execute a broad blanket HIPAA release as part of an estate plan.

HIPAA Release as part of Estate Plan in case of Emergency

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Powers of attorney are part of a well considered estate plan.  Powers of attorney, both “general” powers of attorney and health care powers of attorney, help the principal (the person who signs the powers of attorney and extends his/her authority to someone else) prepare for a time when the principal might not be able to handle his/her own affairs.  The principal might have an accident of some sort leaving him/her unconscious, or the principal might suffer from dementia late in life.  In any such instance, powers of attorney can put someone in the position to speak for the principal and make decisions when the principal can’t.

A comprehensive estate plan should also include a blanket HIPAA release.  HIPAA, the Health Insurance Portability and Accountability Act of 1996 created the health information privacy requirements for providers of health care services.  HIPAA’s privacy rules prohibit health care providers from sharing patients’ private health information with anyone whom the patient has not authorized to receive such information.

Now, the agent appointed in the principal’s health care power of attorney is generally considered to be authorized to receive the principal’s private health information when the principal is deemed not able to handle his/her own affairs.  That makes sense.  We wouldn’t want a health care agent making health care decisions without knowing the principal’s health care situation.  That would be dangerous.

Some people believe that the health care agent doesn’t have the right to receive the principal’s private health information until the principal cannot speak for himself/herself.  That situation concerns me.  What if, as in my example above, the principal is unable to speak for himself/herself because of a car accident or for some other sudden reason?  That principal needs health care decisions made in an emergency.  Now, of course, emergency medical providers will provider the medical care necessary to deal with the emergency.  However, what if the principal has some non-obvious medical condition that the emergency personnel need to know?  If the agent has not been able to receive the principal’s health information, then no one might be able to warn the emergency personnel about the principal’s unusual condition.

Of course, the agent might not be available in an emergency situation because the emergency personnel will probably not be able to look for the agent (or even a health care power of attorney document) while trying to attend to the principal’s emergency.  Health care professionals won’t withhold emergency treatment while looking for the health care agent.  Emergencies don’t usually lend themselves to waiting for legal niceties.

In the aftermath of the emergency, though, medical providers will want permission from the principal or the health care agent to provide follow-on care.  This follow-on care will not be “emergency,” but it may be pressing.  Because of whatever created the need for emergency care (like a fall, an accident, or a stroke, for example,) the principal may not be able to make a decision or may not be able to communicate his/her decision on health care matters.  As a result, the agent may need to make these decisions and, in some circumstances, may need to make these health care decisions quickly.  When time is of the essence in a health care setting, I’d hate for the principal’s care to wait while the agent learns for the first time about the principal’s potentially complicated health conditions.

So, I prefer that the principal have thought ahead about the possibility of such an emergency.  I prefer that the principal have created a broad HIPAA release to allow the sharing of health information to the agent and the successor agents named in the principal’s health care power of attorney.

In addition, the principal might want to include others that might be involved with the agent at the time the principal needs care, such as the family attorney or an elder law attorney, or a member of the clergy.

Legal Issues when someone has Dementia – The Spouse’s Advance Directives

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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.  The January 14, 2016 installment discussed the termination of a guardianship.  The January 21, 2016 installment discussed alternatives to guardianship.  Today’s installment will discuss the need to revisit the spouse’s Advance Directives and other planning issues.

Someone who has a disease that causes dementia often is married.  The dementia of the one spouse might leave the other spouse without someone to make decisions in an emergency or in the event of his or her own cognitive decline.

Most married couples, if they have prepared Powers of Attorney, have named each other the Agents in those Power of Attorney documents.  The spouse that now suffers from dementia is no longer the appropriate person to have as the Agent for the “well spouse.”  That “well spouse” should have new Power of Attorney documents prepared, if possible.

The “well spouse” may have successor Agents named in his or her Power of Attorney.  If so, that makes new Powers of Attorney less urgent but no less important.  If something were to happen to the “well spouse” that made it necessary for an Agent to start making decisions, there could be a delay in accepting the successor Agent while awaiting confirmation (from a doctor, perhaps) that the primary Agent (the spouse with dementia) cannot act as Agent.  That delay can’t be good for the second spouse.  So, when someone suffers from dementia, the spouse of that someone should redo his or her Powers of Attorney and name someone other than the “ill spouse” as Agent and the successor Agents.  With the new Powers of Attorney, the spouse who does not have dementia should also prepare a HIPAA release and a living will (if wanted.)

If the “well spouse” has new Advance Directives set up, he or she should also at least consider the other preparations that have been discussed in this series:
– Long Term Care plan,
– Do Not Resuscitate Order (if appropriate,)
– Right of Disposition designation (naming who is in charge of funeral implementation),
– Last Will and Testament,
– Updating beneficiary and “transfer on death” designations on assets and financial accounts,
– Pre-planning a funeral and final resting place,
– Medical Insurance,
– Consider Long Term Care insurance,
– Designate someone whom the “well spouse” would prefer to be guardian, if one should be necessary (sometimes included in a General Power of Attorney document,) and
– Talk with an Elder Law Attorney about what planning for the future.

These new Advance Directives and other preparations aren’t necessary the next day after learning that one’s spouse has dementia, but the sooner the better.  Certainly, a month should be long enough to have the new Advance Directives prepared.

(Ed. Note:  This is the end, for now, of the series on Legal Issues when someone has Dementia.)

Legal Issues when someone has Dementia – Alternatives to Guardianship

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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.  The January 14, 2016 installment discussed the termination of a guardianship.  Today’s installment will discuss alternatives to guardianship.

When someone has dementia and he or she seems to no longer have the ability to make decisions necessary to prepare powers of attorney and, for whatever reason, a guardianship is not appropriate or not wanted, options for having one person specific person able to make decisions have become limited.

Now, even though the person seems to longer have the ability to prepare powers of attorney, he or she might have some lucid moments in which to make such decisions.  The family can seek the help of an estate planning attorney.  If the attorney is satisfied that the person can decide to sign powers of attorney, the attorney can prepare them.  These new powers of attorney designate who can make decisions when the person’s lucid moments have gone.

In the absence of the person’s own ability to make decisions and the absence of someone appointed to make decisions (ether through a power of attorney or a guardianship,) the caregivers for someone with dementia have to rely on guidance from the next of kin (which can be very tricky if the family disagrees.)

If even input from the next of kin isn’t available, the caregivers are left to their consciences.  They must do what is necessary for the person with dementia and do what they know in their hearts to be the right thing to do.

With the difficulties, inconveniences, and sometimes strife that can come from a guardianship proceeding, some families in which someone suffers from dementia might choose to forego guardianship and, instead, muddle through as best they can.  I can’t fault families that make this choice.

Unfortunately, some people with a disease that causes dementia will not have a designated decision-maker.  In such cases, caregivers are forced to do their best with only their own caring hearts and their experience to guide them.

 

Legal Issues when someone has Dementia – Terminating a Guardianship

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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.

 

Legal Issues when someone has Dementia – Difficulties with a Professional Guardian

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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.  Today’s installment will discuss the difficulties that a family might face if a professional guardian is appointed for a loved one.

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.  To establish a guardianship, a Probate Court must determine that the proposed ward (the person with the dementia-related disease) is, in fact, incompetent (i.e., unable to handle his or her own affairs because of a mental impairment) as discussed two weeks ago.  If the court determines incompetence, the court must then determine if there is a less restrictive alternative available, as discussed last week.  If the court determines that the proposed ward is incompetent and that no less restrictive alternatives are available or will work with this proposed ward, the Probate Court must then determine who is the best available guardian. While, after the discussion in last week’s installment, a family member or friend may not wish to act as guardian, there can also be difficulties for a family if an outsider is guardian.

An outside-the-family guardian is sort of like a new family member.  Everyone has to work at the relationship.  It can’t be one-sided and be successful.  The family members (the real ones) must get used to the idea that a relative stranger will be making decisions for a loved one, OR the family members must make an effort (perhaps a great effort) to help the guardian be less of a stranger.  The guardian won’t automatically know the relationship that the family has had with the ward in the past.  Neither will the guardian automatically know the relationship that the family wishes to have with the ward going forward.  (Obviously, something has happened to the ward that has triggered the need for a guardian, and that same something that has happened to the ward will probably also affect relationships with family and friends.)

Unfortunately, to a professional guardian, the ward is part of the job.  The guardian may have several wards at the same time.  No one ward is enough to support a professional guardian.  (If a professional guardian makes enough money to support himself or herself from just one or two wards, a close examination of the guardian’s handling of the wards’ money is in order.)  Because the guardian will have several wards, a close relationship with the wards’ different families is difficult.  (That being said, many if not most wards of professional guardians have no family remaining involved in their lives.  The guardian is the closest thing that these wards have to family.)

The family may not agree with how the guardian handles the ward’s money.  In fact, the family may be uncomfortable or even outraged that some of the ward’s money is being used to pay the guardian for services.  Well, that’s just tough!  No family member was both willing and able to serve as guardian.  A professional guardian should not be forced to serve as guardian for free if the ward has money that must be managed.  Handling the money is time-consuming.  (If the ward has no money, a professional guardian may not be involved, but a volunteer guardian might.)  Now, if the family has real concerns that the guardian is mishandling the ward’s money, the family may monitor the guardian’s work through the periodic account reports that the guardian must file with the Probate Court.  If those account reports show excessive fees for the guardian or other money mismanagement, the family may challenge the reports in a Court hearing.

Finally, the most difficult situation might be when the ward is married.  The spouse might not be able to be the guardian.  (Perhaps the spouse has his or her own health issues.)  The guardian’s duty to look out for the ward can be really tough on the spouse.  A decision that the ward (before needing a guardian) might have made for the good of the marriage may not be the same decision that the guardian makes because the guardian isn’t in a position to make sacrifices for the good of the marriage.  The guardian might choose a care community that is not close to the spouse’s home, making it harder for the spouse to visit.  The guardian might have to take control of half of the couple’s finances to make sure that the ward’s needs can be paid for.  It could be almost impossible to maintain the same relationship that the couple had before a guardianship became necessary.

While there are reasons that a family member may not wish to be guardian to a loved one, there are also reasons that the family member may not wish to have a non-family-member guardian for a loved one.  That dilemma often leads to what amounts to almost a game of stare-down among family members.  The guardian is the family member who “blinks” first.

Note:  With Christmas and New Year’s Day coming, I do not expect to post a blog installment for the next two weeks.  Happy Holidays!

Legal Issues when someone has Dementia – Difficulties for a Family Member as Guardian

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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.  Today’s installment will discuss the difficulties that might arise for a family member acting as guardian.

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.  To establish a guardianship, a Probate Court must determine that the proposed ward (the person with the dementia-related disease) is, in fact, incompetent (i.e., unable to handle his or her own affairs because of a mental impairment) as discussed two weeks ago.  If the court determines incompetence, the court must then determine if there is a less restrictive alternative available, as discussed last week.  If the court determines that the proposed ward is incompetent and that no less restrictive alternatives are available or will work with this proposed ward, the Probate Court must then determine who is the best available guardian, often looking to family members. A family member offering to act as guardian should be aware of the expectations of a guardian and what challenges might be ahead.

In Ohio,  a guardian needs training  The introductory guardianship course is 6 hours of training in a day-long course.  The training requirements became tighter, especially for attorneys, in 2015 as a result of a scandal in Columbus when certain professional guardians were found to have responsibility for more than 300 wards.  After a series of newspapers articles on the county’s guardianship program, questions arose regarding the level of involvement that a guardian could have with so many wards.  (Because the training is so new and is supposed to apply to guardians already in service as well as to new guardians, the training requirements are only slowly being implemented.  As a result, family members and friends volunteering to be guardians may not be required to undergo training immediately, especially in populous counties.)

In addition to spending time in training, the family member willing to be guardian has to undergo the examination of the court regarding his or her fitness to serve as guardian.  That will include a background check tied to the would-be guardian’s social security number.

If the guardianship is contested or there is a family fight over who should serve as guardian, the examination will go far beyond the background check.  The prospective ward and the other family members who oppose the guardianship or the would-be guardian might pull out all the stops.  There might be very demanding information requests during the “discovery” process.  (Remember, this is court litigation.)  There might also be very harsh testimony in the court’s hearings.  (Despite the oath to tell the truth, the whole truth, and nothing but the truth, do not be surprised if the testimony includes accusations, feelings, gossip, and exaggeration.  A contested guardianship is very much like an ugly divorce trial.  It’s not just “the facts and nothing but the facts.”  There’s lots of anger.)

If the family member becomes guardian, the guardian becomes responsible for all of the affairs of the ward.  Unless the guardian is for the person only, the guardian is responsible for the ward’s business affairs.  Imagine balancing someone’s checkbook and then having someone double-check your work.  That’s not far off from the court’s oversight of a guardian’s handling of the ward’s money.

But the business affairs can go beyond just the checkbook.  One friend of mine serving as a guardian had to determine whether to have a tree in the yard cut down.  Guardianship is a real hands-on job.

In a particularly painful case that I’ve experienced, a daughter reluctantly agreed to be her mother’s guardian.  Her mother was in a nursing home.  The guardian dutifully paid for the nursing home every month until Mom’s money had all been spent.  (The guardian had not talked with an elder law attorney about the possibility of sheltering any of Mom’s life savings from the costs of long term care.  Even if she had brought in an elder law attorney, the sheltering of assets within a guardianship is tricky because of the obligation to use the ward’s assets only for the good of the ward.)  When the money was gone, the daughter put Mom’s real estate up for sale.  (Unfortunately, this was during the recent real estate market meltdown, so no offers came.)  At the same time, the daughter/guardian applied for Medicaid.  The Medicaid caseworker, however, denied the application incorrectly.  The guardian, not knowing what else to do and finding no one (including the nursing home’s social worker) who would help, all but collapsed emotionally under the pressure.  After more than two years of non-payment for Mom’s care, the nursing home sued the guardian personally, alleging that she was negligent in managing her Mom/ward’s affairs.

As if managing the ward’s business affairs weren’t difficult enough, the guardian (unless a guardian of the estate only) is responsible for the ward’s personal affairs.  That means that the guardian has to make choices on where the ward will live, who can visit the ward, whether a reluctant ward will be required to shower, and many other similar choices.  Some of these can be pretty tough to handle emotionally.  For example, the guardian might have to decide whether to maintain life support for a gravely ill ward.  Even more often, a guardian must decide whether to keep up an active fight to maintain an aging ward’s health or to adopt a symptom and pain management approach such as palliative care or hospice care.  In other words, some of these decisions are life-and-death decisions.

It can be very hard to be the guardian for a loved one.

 

Legal Issues when someone has Dementia – Picking the Best Guardian

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Note:  There was no blog last week (Thanksgiving.)

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.  Today’s installment will discuss the Probate Court’s examination of who should be the guardian.

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.  To establish a guardianship, a Probate Court must determine that the proposed ward (the person with the dementia-related disease) is, in fact, incompetent (i.e., unable to handle his or her own affairs because of a mental impairment) as discussed two weeks ago.  If the court determines incompetence, the court must then determine if there is a less restrictive alternative available, as discussed last week.  If the court determines that the proposed ward is incompetent and that no less restrictive alternatives are available or will work with this proposed ward, the Probate Court must then determine who is the best available guardian.

When a proposed ward is determined to be incompetent and to have no viable “less restrictive alternative,” the probate court must decide whether the applicant is the appropriate guardian.  If the proposed ward’s family has some sort of internal strife, the choice of guardian is another point that is easy to contend.  If the applicant cannot convince the probate court that he or she is the right person to be guardian, the court might consider another family member or another interested person.  If no one with a prior connection to the proposed ward is both acceptable to the court and willing to serve as guardian, the probate court will turn to one of its local people (usually an attorney) to act as guardian.  (If someone other than the original applicant is to be named guardian, that person may need to complete an application.  The medical statement isn’t necessary on this substitute application, so the new application is less time consuming than the original application.)

Acting as a guardian is no small undertaking.  It requires a certain amount of training and time dedicated to visit the ward periodically.  It also requires time to manage the ward’s finances and property (if the guardian has responsibility for the estate) and to report to the probate court.  Because of a series of articles in the “Columbus Dispatch” describing some of the practices of professional guardians and of the probate court in Franklin County, Ohio (the county that includes Columbus,) the state of Ohio has instituted rules requiring more training for guardians and mandating more visits with wards.  Guardianship is not a responsibility to be taken lightly.

When a guardian is named, the guardian is put in charge of the ward’s estate and the ward’s person.  The guardian being in charge of the ward’s person means that the guardian is in charge of the ward’s health and body.  The guardian makes all health care decisions, and the guardian decides where the ward will live.  If necessary, the guardian will decide what the ward will where.  (That is not an issue except in special circumstances, for example, when a ward wants to dress in summer clothes in the winter when an adverse health consequence might occur.)  The guardian even decides who can visit the ward.  (This is not usually an issue except when someone is trying to take advantage of the ward or when the guardian is the child of the ward and has some deeply entrenched rivalry with a sibling.)  This guardianship of the person power is what allows a guardian to order that a ward must stay in a nursing home when the ward, left to his or her own choice, would leave the nursing home.

The guardian is also put in charge of the ward’s estate.  The ward’s estate is all of his or her possessions, money, and other assets.  The guardian is now in charge of the ward’s bank account, the ward’s house, the ward’s clothes, the ward’s furniture, and everything else that the ward owns.  The guardian must see that the ward’s bills are paid and that the ward’s income actually comes in.  (As an example of how detailed the “estate” obligation can be, a friend of mine who acts as a guardian had to approve the removal of a dead tree from the ward’s property.)  The guardian must report periodically to the probate court to show proper management of the ward’s assets.  The guardian for acting as guardian from the ward’s assets and income.  If the guardian also acts as the ward’s attorney (which sometimes happens with professional guardians,) the attorney fees are paid in addition to the guardianship fees.  When the ward is married and the guardian is not the spouse (which happens sometimes,) the guardianship over the estate can become very tricky or even contentious because the spouse must share money management with the guardian, an outsider to the marriage.

In some circumstances, a guardian of the estate can be a different guardian than the guardian of the person.  That is unusual and can cause disagreements between the guardians.  For example, if a guardian of the person wants the ward to live in a particular community and the guardian of the estate does not like that community, the guardian of the estate has the power to withhold payment.  As a result, split guardianships are rare.

If a ward is on Medicaid for long term care (which means that the ward has very few assets,) a guardian of the person can be appointed to make non-financial decisions.  (Because of the few assets, the need for care, and the Medicaid system, the financial decisions pretty much sort themselves out.)  Because of the ward’s limited funds, such guardians-of-the-person only are volunteers.  (In fact, I am a volunteer guardian for a gentleman on Medicaid.)  A volunteer guardian may be necessary when the ward has no family or when the ward’s family feels incapable of making difficult decisions.

Legal Issues when someone has Dementia – “Less Restrictive Alternatives” analysis in Guardianship Hearing

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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.  Today’s installment will discuss the Probate Court’s examination of “less restrictive alternatives” to guardianship.

When a person’s dementia-causing 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.  To establish a guardianship, a Probate Court must determine that the proposed ward (the person with the dementia-related disease) is, in fact, incompetent (i.e., unable to handle his or her own affairs because of a mental impairment) as discussed last week.  If the court determines incompetence, the court must then determine if there is a less restrictive alternative available.

The probate court looks for alternatives because, frankly, managing a guardianship relationship can be a pain in the butt for the guardian, the ward, the ward’s family, and the probate court.  Imagine balancing your checkbook and then having the probate court double-check your work.  That is a fair description of the financial side of a guardianship.  (As a practical matter, the probate court might start with the “less restrictive alternative” analysis because it’s easier and less emotionally charged than the incompetency decision.)

The classic example of “less restrictive alternative” is the existence of valid Powers of Attorney, both for business decisions and health care decisions.  If the proposed ward had planned ahead for his or her own possible incompetency, he or she might have put in place these Powers of Attorney (as discussed in the May 14, 2015 installment.)  If, however, as discussed previously, there are disputes on the validity of the Powers of Attorney, the probate court may have to rule that they are not good alternatives, even if less restrictive than a guardianship.  (These disputes can be especially ugly when the Powers of Attorney were prepared only recently (i.e., at a time when the proposed ward was probably already suffering from the dementia-causing disease.)  Perhaps the ugliest version of these disputes is when the recent Powers of Attorney replace and revoke older Powers of Attorney, from obviously long before the dementia-causing disease had started.)

In a more frequent, and difficult, situation, the dementia sufferer resides in a secure dementia unit but has not adapted to staying on the unit.  Perhaps the resident frequently tries to elope and does not respond to distraction or redirection techniques.  Perhaps, the resident becomes belligerent and physical or exhibits other difficult behaviors.  As a matter of law, unless a probate court has declared that resident to be incompetent, the resident has the legal right to leave.  Leaving, however, may not be a safe situation for the resident.  Even if the resident has Powers of Attorney in place, the Agent named in those Powers of Attorney does not have the legal authority to make the resident (the Principal in the Powers of Attorney) stay on the dementia unit.  The Powers of Attorney do not take away the Principal’s legal authority to make his or her own decisions.  The Powers of Attorney merely empower the Agent to make certain decisions in the place of the Principal or for the convenience of the Principal.  If the Principal makes a different decision (wanting to leave a secure unit, for example,) the Agent is not legally authorized to overrule the Principal.  In such a situation, existing Powers of Attorney do not provide a sufficient alternative to a guardianship.  A guardian the legal authority to make the ward (the person with dementia) stay on the secure unit.

NOTE:  Do not expect a blog installment next week (Thanksgiving.)

Legal Issues when someone has Dementia – “Incompetence” Determination in Guardianships

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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.  Today’s installment will discuss the Probate Court’s examination of the alleged incompetence of the proposed ward in a guardianship proceeding.

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.  A guardianship proceeding forces the Probate Court to determine whether the proposed ward is, in fact, unable to handle his or her own affairs.  Such a finding is called “incompetence” in eyes of the law.

In determining whether the proposed ward is incompetent, the probate court must decide whether the person is “so mentally impaired [as to be] incapable of  taking proper care of the person’s self or property.”  (Ohio Revised Code section 2111.01(D))  If the application for guardianship has an accompanying statement from a health care professional supporting the applicant’s claim that the proposed ward is incompetent and the court investigator supports the claim of incompetence, the court must have a hearing.

In order to rule that the proposed ward is incompetent, the court must receive “clear and convincing evidence.”  Anything short of “clear and convincing” is not enough to judge someone incompetent (in Ohio, anyway.)  How tough is the “clear and convincing” standard?  If you hit me with your car and I sue you for car repairs and medical costs, I must give the court evidence that shows the collision to be, more likely than not, your fault.  This more likely than not is called “preponderance of the evidence.”  Any evidence that leaves the court more than 50% convinced that the collision was your fault allows the court to rule in my favor.  Now, let’s imagine that the county prosecutor believes that you hit me on purpose and wants to imprison you for attempted murder or vehicular assault or any other crime he or she can find to fit the circumstances.  The prosecutor must convince the court more than the “preponderance of the evidence” standard.  To convict you of a crime, the prosecutor must convince the court that you intended to hit me by providing evidence that leaves the court “beyond a reasonable doubt” that you wanted to hit me.  Unless you’ve never seen Perry Mason or Law & Order, I suspect that you have some familiarity with “beyond a reasonable doubt.”  While the law does not assign a percentage on how sure the court must be to find something “beyond a reasonable doubt,” I describe it as 75% sure.

Actually, there is a real life example of the difference between “beyond a reasonable doubt” and “preponderance of the evidence.”  O.J. Simpson was not penalized criminally for his alleged murder of Nicole Brown Simpson and Ronald Goldman because the jury in the criminal court was not convinced beyond a reasonable doubt that he killed the victims.  The Goldman family, though, sued Mr. Simpson for its personal losses from the death of Mr. Goldman, and the court in this civil case ruled that the Goldman family had proved by a “preponderance of the evidence” that Mr. Simpson had killed Mr. Goldman.  As a result, Mr. Simpson didn’t go to prison for murder, but virtually his entire net worth (and future earnings) were awarded to Mr. Goldman’s family.  The difference was the burden of proof.

“Clear and convincing evidence” is even stricter than “beyond a reasonable doubt.”  Unfortunately, I can’t think of any examples, in real life or in fiction, to demonstrate “clear and convincing evidence.”  However, I describe it as 90% sure.  (As a public policy concern, it takes less proof to send someone to prison or even to the death penalty than it does to declare someone incompetent to handle his or her own affairs.)

As a practical matter, the standard of proof does not matter if the proposed ward does not oppose the guardianship request.  If there is no opposition, the medical statement attached to the application and the probate court investigator’s findings provide enough evidence for the court to make a ruling.  If the proposed ward opposes the guardianship request but does not receive help from family members or friends, the probate court can get a pretty good look at how the proposed ward handles himself or herself and can make a reasoned determination on the proposed ward’s ability to “take proper care” of himself or herself.  If, though, a family member or friend helps the proposed ward oppose the guardianship request, the “clear and convincing evidence” standard is such a high hurdle that the guardianship application can usually be defeated.  The involvement of the family member or friend can help a proposed ward, even a proposed ward who should be declared incompetent, avoid (metaphorically) stumbling over himself or herself in court.