Is Guardianship the Best Course of Action?

Q. My mother hasn’t been herself for some time now. She has suffered from chronic depression throughout her life and now she is in the beginning stages of Alzheimer’s. She often forgets to take her depression medication, so we moved her into our home to ensure she takes her meds and to help with other care that she needs.

Our family enjoys having mom around, but now we feel like we need to keep a much closer watch on her. She can no longer manage her own affairs and she recently told my husband that she was suicidal. She has gotten angry and is even violent at times and exercises poor decision-making skills. I think it’s time to take action, since mom is now out of control. Is guardianship the best course to take, or is there another way?

A. When a senior loses the ability to think clearly, it often affects his or her ability to make informed and meaningful decisions. If the person you are caring for is unable to make rational, clear-headed decisions, guardianship is a step you can take, but it isn’t always the best one.

A guardian is a person who has court-ordered authority to handle the personal affairs of an person who is incapacitated. Typically when naming a guardian, a conservator is also named. The conservator is in charge of managing the financial affairs of the person who is incapacitated. Guardians and conservators have a fiduciary duty to act in the best interests of the person they are appointed to serve.

When a judge imposes legal guardianship and conservatorship, everything changes. After a hearing, the ward or “incapacitated person” is stripped of many rights. He or she may no longer be allowed to decide where to live or whom he or she will see. If a conservator is appointed for you, the conservator will choose whether you get any spending money. You won’t be able to enter into legally binding contracts or demand a different guardian, even if the situation is not working out well.

Guardianship and conservatorship is often the only option in cases where an individual has not signed a Power of Attorney for health care or finances and is incapacitated due to advancing age or a disability.

When Guardianship Seems Like the Best Solution

When it comes to guardianship, a landmark case was settled in court between Patricia Femia and her mother, Ada Vocino, that caused an extreme amount of family unrest. Patricia was Ada’s only child and they were very close at one time. Ada lived with Patricia and her family and helped raise Patricia’s sons and daughter.

Ada’s health began to decline as she got older, and she was diagnosed with dementia and was involved in numerous auto accidents. She lost her driver’s license and soon became paranoid, depressed, and even suicidal, according to her daughter. She was committed to a nearby psychiatric unit several times. Patricia found a rope under her mother’s bed and became terrified of her mother’s paranoia and suicide threats.

According to Patricia, Ada had “frequent temper tantrums and constant mistrust,” which ultimately eroded their relationship. Patricia filed for guardianship of her mother, and Ada refused to relinquish control over her affairs to Patricia and deeply resented the guardianship proceeding. This put a strain on their relationship that could never be mended.

Was Ada Incompetent and Unable to Handle Her Own Affairs?

In the guardianship case, Patricia’s attorney had the burden of proof to show that Ada lacked “capacity” to handle her own affairs. If a person is found to lack capacity, he or she is declared “incompetent.”
Patricia testified about her mother’s declining mental state. Two psychiatrists were called by Patricia’s lawyer and testified that Ada did not have capacity and needed a guardian. The judge was openly skeptical of the testimony of one of the doctors and subjected him to harsh questioning. He did believe the testimony of witnesses called by Ada’s lawyers, who said Ada didn’t need a guardian.

In a pretrial deposition, Ada had been composed, articulate, and clearly antagonistic to her daughter. The judge called Ada “a lovely woman, proud, and clear minded about what she likes and what she doesn’t like.” The judge accepted Ada’s explanation for her suicide threats that she didn’t mean to kill herself or harm others. He concluded that while she was “a little histrionic at times as she fought for control of her own life,” she was not a danger to herself or others.

Although the judge had some kind words about Patricia, he noted, “Ada wants her independence. And we have a Constitution in this state and this country and it says, you know, unless there’s a reason, you’re free even to be foolish. And there is no reason here.”

A Decision is Rendered and a Family is Torn Apart

In the ruling, the judge not only denied Patricia’s guardianship petition — he issued her with a $675,000 judgment, payable to her mom, due to years of intermingled finances and jointly owned assets. An appeal of the judgment was dropped as part of a settlement. Patricia wound up owing about $310,000 in legal bills.

After the trial, Patricia and Ada weren’t in touch at all. Patricia says her letters went unanswered, her phone messages were ignored, and her visitation attempts were rebuffed. When Ada died, alone and despondent several years later, Patricia learned about it in a call from the funeral home.

The guardianship case of Ada Vocino is considered a landmark case among guardianship professionals—not for establishing any great legal precedents, but for the pain it caused.

Advance Planning Could Have Changed the Painful Outcome

The agony inflicted on both sides of the family saga described above could have been prevented by advance planning. Yet many people fail to prepare adequately for elder care and estate issues and then are forced to endure the consequences.

If you look back at the history of the case described, you will see that in 2012, Patricia was looking for an assisted living facility for Ada when she was first diagnosed with dementia. While filling out the paperwork, it became apparent that Patricia had two problems: she had no Power of Attorney to allow her to act on her mom’s behalf, nor a medical proxy that would have given her the authority to make medical decisions for Ada. By then, Patricia thought that it was too late to ask Ada to sign such legal papers since she had been diagnosed as suffering from dementia. Patricia felt that the only alternative route she had was guardianship proceedings.

When is a Person Too Incapacitated to Sign Legal Documents?

Many people are surprised to find out that a person with Alzheimer’s may still be legally competent to sign documents. For instance, when it comes to a Will, under the laws of most states, a person is legally competent to sign if at the time of the signing he or she meets certain tests. Please read my article on this subject for more details.

Guardianship Can Be Avoided if You Plan in Advance

As you can see, guardianship is an extreme form of intervention in another person’s life because control over personal and/or financial decisions is transferred to someone else for an indefinite, often permanent period-of-time. Guardianship should therefore always be a last resort, and everyone should have a Power of Attorney (a legal document to give another person power to act on your behalf) in place to avoid the need for Guardianship. Here are some reasons why it is wise to have a Power of Attorney in place, rather than risking having to go through the Guardianship process:

• The principal retains more control over who makes the decisions and what decisions they can make;
• Power of Attorney has significantly lower costs compared to guardianship;
• No court is involved when creating or using a Power of Attorney;
• No annual accountings are required to be filed with the court when using a Power of Attorney;
• More privacy is maintained with a Power of Attorney (whereas probate court proceedings are public record);
• A power of attorney does not strip away the rights of the principal to make her own decisions so long as she is able (whereas a guardianship requires a declaration of incompetence which strips from the ward the right to make decisions for herself).
• The principal may revoke the Power of Attorney at any time so long as the principal has the mental capacity to do so, whereas a guardianship and conservatorship can only be revoked by the court. Once established, it can be difficult to revoke.

If Ada was indeed competent, a Power of Attorney would have been a preferable option for the Vocino/Femia families, to avoid the nightmare they went through.

Do You Have a Power of Attorney?

If you have not done a Power of Attorney, now is the time to get it done by an experienced Elder Law Attorney as part of a comprehensive Incapacity Plan which includes an Advance Medical Directive and Long-term Care Directive®, or as part of a comprehensive Estate Plan which includes an Incapacity Plan and a living trust to avoid after-death probate.

If you decide to use our firm, be sure to ask about our Lifetime Protection Plan®, which ensures that your documents are properly reviewed and updated as needed, so that they will always have the proper effect under the law.

Please contact us at any time possible to make an appointment for a no-cost initial consultation:

Power of Attorney Fairfax: 703-691-1888
Power of Attorney Fredericksburg: 540-479-1435
Power of Attorney Rockville: 301-519-8041
Power of Attorney DC: 202-587-2797

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