As our parents age, our roles often reverse. We take on the role of parent, making sure they take their medications and get to doctors’ appointments. Our parents revert to the role of adolescent, often hiding health care information from us, or conveniently forgetting to tell us they have not been paying their bills. Sometimes, we are in the dark about what is going on until a friendly neighbor mentions, “Hey, did you know your mom’s electricity was shut off last week?”
So you start helping mom pay her bills. At first, you sit with her and organize the bills so that she can write out checks. You seal the envelopes and take them to the post office. Over time, you write out the checks and she signs them. Then you get to the point where mom does not want to deal with any of it, or maybe she is losing focus. Either way, it is easier if you just sign the checks too.
If this scenario sounds familiar, then hopefully you have already made sure that mom has updated her estate plan and signed powers of attorney and health care proxies. If mom names you as her agent in the power of attorney and gives you the necessary powers, you will then have the ability to sign the checks on her behalf. This will make things easier for a while.
However, even with a valid power of attorney, there are times when you will need to petition for guardianship. Here’s when.
- Refusal to sign a power of attorney. This is not uncommon. I have had clients whose parent refused to sign any estate planning documents, even after the parent was diagnosed with early signs of dementia. In this case, you can have mom sign checks for as long as she knows what she is doing. At some point, you may have the uncomfortable feeling that she will sign anything you put in front of her. When this occurs, call your attorney and file for guardianship.
- Real property or investments have to be sold. Even if mom has signed a power of attorney, there may be instances where a guardianship is still required. Depending on the laws of your state and the type of power of attorney mom signed, you may have to have a guardian appointed in order to sell mom’s home or other investments.
- Disagreement over nursing home. If you need to admit mom to a nursing home and she will not agree to go, you must petition for guardianship in order to admit her to the facility.
- Medical intervention beyond the health care proxy. There are certain instances where you will need guardianship to protect your mom’s health. For instance, you may have to authorize mom’s medical care providers to administer certain drugs to her such as antipsychotic medications. Or, if mom cannot consent to medical treatment due to her inability to comprehend, you will often need guardianship. Sometimes, this court authority is required even if a health care proxy is in place.
- Decision-making is compromised in some areas. There may be instances where you want to ask for a limited guardianship. Courts are increasingly aware that individuals need help with one area of their lives, but can retain control over other areas. The courts sometimes prefer to allow for limited guardianships rather than taking away complete control from an individual. If the court finds mom still has some decision-making abilities, it may limit the guardian’s authority. For instance, if mom can still decide who she wants to run the family business, the court may allow her to make that decision while giving the guardian authority of other assets.
Filing for guardianship can be costly and time consuming. Any time you ask the court to act, you are at the court’s mercy and time schedule. Guardianships can often be avoided by implementing an effective estate plan. While mom still has capacity, talk to her attorney and consider creating a revocable trust where assets can be transferred now. Mom can be a trustee with a co-trustee named to serve with her. That way, the co-trustee can act if or when mom no longer can or wants to.
Also, make sure your parent’s power of attorney and health care proxy are up to date. Unfortunately, even with an effective estate plan, there are times when a guardianship cannot be avoided. Knowing what those times are will make you more prepared to deal with them.
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