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Legally Coping with Alzheimer’s

May 05

With life expectancies constantly rising, having a parent with Alzheimer’s or dementia is becoming more and more common. Someone recently e-mailed me the following question: “How do I legally become guardian over my father who suffers from Alzheimer’s disease?”  The easiest way to manage a parent’s affairs who has Alzheimer’s, dementia, or some other mentally debilitating disease is for that parent to have previously signed a power of attorney when he or she had the legal mental capacity to do so.  As I mentioned in an earlier article, A power of attorney is a legal document in which one person (the principal) authorizes another (the agent) to act on his or her behalf. Financial powers of attorney allow your agent to make decisions regarding your property. Healthcare powers of attorney allow your agent to make decisions regarding your health care needs. Having a power of attorney in place that automatically comes into effect when you need it (a springing power of attorney) is invaluable for you and your family.

No one likes to think about needing such a document, or being unable to handle their own affairs, but as we age, the possibility becomes more likely. It is very important, and very easy, to prepare for this possibility by signing a springing power of attorney while you have the proper legal mental capacity. A springing power of attorney saves your family from potentially having to obtain a guardianship and/or conservatorship over you through probate court, which is a more costly and less private undertaking.   

After a parent or loved already has Alzheimer’s or dementia, he or she usually doesn’t have the legal mental capacity to execute a power of attorney. In these cases, a child seeking to legally take care of his or her parent usually has little choice but to try and obtain a legal guardianship and/or conservatorship over that parent. 

A Guardianship is a legal relationship where the probate court gives a person (the guardian) the power to make personal decisions for another (the ward). A family member or a friend can initiate the proceedings by filing a petition in the probate court in the county where the individual resides. First, a medical examination by a licensed physician is usually necessary to establish the individual’s condition. The probate court will then hold a hearing to determine 1) whether the ward is able to meet the essential requirements for his or her health and safety and 2) whether the person applying for the guardianship is suitable. A guardian, however, does not have the legal authority to manage the ward’s finances. If a child wants to be in legal control over his parent’s finances, he also has to file a conservatorship with the probate court.

A conservatorship is a legal relationship whereby the probate court gives a person (the conservator) the power to make financial decisions for another (the protectee). The court proceedings are very similar to those of a guardianship except the court determines whether an individual lacks the capacity to manage his or her financial affairs. If so, the court appoints a conservator to make monetary decisions for the individual. A conservatorship and guardianship can be filed at the same time in probate court and the court will usually appoint the same person to act as both guardian and conservator for the individual.