Monday, October 20, 2014

Petition for Guardianship: Beginning the Transition

One of the things most elder law attorneys deal with are guardianship petitions.  Someone, often but not always a relative, petitions the court asking that another person have responsibility for the care and decision making of another person.  This guardianship can be for full decision making, or limited decisions such as health, housing, or finances.  This can be due to an accident, but the cliched guardianship situation is when an elderly relative has the early signs of dementia and refuses to get help.

Clients often ask what I believe is the best time to petition for a guardianship.  The easy is answer is not too early, but just before it is too late.  The reasonable question, then, is what is too early, and what is too late?  Too early is when there appear to be signs of danger ahead, but no immediate concerns about day to day capacity.  If someone has trouble remembering things, but can still take their medication every day, pay their bills, and drive to their favorite restaurant, it is time to plan ahead, but not time to file.  Taking away a person's decision making is a serious step.  A court will not do say based on worries about the future or a hunch.  When a client comes to me in a situation like this, I tell them to encourage the person to sign a durable power of attorney to avoid a guardianship in the future, and if not, to keep in touch with me so we can determine when the time would be right to tile.

Just before it is too late is the real key.  Too late often means after a broken bone, or a bad car accident, or a withdrawal of cash to spend thousands at bingo.  For transitional reasons, however, the key to the definition of "too late" is when people live alone.  Stepping in and appointing a guardian before someone requires full time care is ideal for someone who lives alone and does not believe they need help.  A legally incapacitated person needs valuable transition time, when they can still be in their own home or apartment but now have someone to assist them and make decisions for them.  I have often seen bitter fights over a guardianship petition when someone needs to go straight from their house to a nursing home or full time care facility.  The important transition time at their own home eases the emotional damage when a person is, from their perspective, "losing their rights."

The best thing, then, when a relative appears to have Alzheimer's, dementia, or any other oncoming physical or mental incapacity, is to consult with a lawyer early and often, so that when the day comes a guardianship petition is filed at the opportune time.

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