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By Jill Poser, CGCM, CMC, CDCP

JULY 15, 2024

Evelyn, a 95-year-old woman, lives on her own in the home she lived in with her husband until he passed 5-years ago. She and her husband were married for close to seventy years and were very devoted to each other. They had four children together, all of whom seem very dedicated to Evelyn’s care and well-being. While her husband was alive, the couple named Audrey, their oldest daughter, as health care proxy and attorney-in-fact. The other three children accepted their parents’ decision to give Audrey these authorities and at the time felt comfortable that she would take proper care of their folks and accepted Audrey’s role as medical and financial fiduciary. Evelyn deeply missed her husband but seemed to accept the loss and her new normal or so her children thought.

As each of Evelyn’s children came to visit within the first couple of years after their Dad passed, it became evident that Evelyn was more forgetful and was not as capable to oversee all of her own care needs in the way she used to. It became concerning to the other three children that their older sister was not communicating about any of the decisions she was making on their Mom’s behalf. Audrey became very secretive whenever she was approached with a question or a suggestion. However, somehow, collectively they were able to convince their Mom that she needed a little extra TLC and hired a private duty caregiver to help with meal preparation, hygiene and overall companionship a few hours a day a few days weekly. Evelyn and her caregiver grew to have a close relationship and Evelyn relied on her more and more.

This arrangement seemed to work very well for the first few years until Evelyn became a significant fall risk and the three children approached Audrey about increasing their Mom’s care at home. Audrey refused to increase her care. She said that her Mom liked her independence and could take care of herself. Evelyn was hospitalized for three of the four falls and had multiple surgeries as a result. The forgetfulness became more pronounced and her inability to reason became much more apparent leaving her more at risk. Everyone seemed to notice but Audrey.

Deborah, another one of Evelyn’s daughters recently came to visit and upon her arrival the caregiver approached Deborah with great concerns about Evelyn’s care. She informed Deborah that Evelyn was being physically neglected and financially exploited by her older daughter and was willing to provide a detailed affidavit stating as such. Deborah was devastated and contacted her other siblings immediately. Evelyn’s son Brian immediately flew in to meet his sister and look into the allegations. It became clear that their Mom had lost quite a bit of weight in the last month and was more forgetful than ever. The caregiver explained that over the last six months Audrey seemed less able to oversee Evelyn’s affairs. She was not paying her Mom’s bills properly, had spoken with her about making changes to beneficiary status, the check registry did not seem to balance, sums of money were missing and most of all Audrey was not allowing the caregiver to spend the appropriate monies on food and personal items or increase her hours to oversee Evelyn’s care properly.

Deborah and Brian reached out to Audrey by phone to discuss all these issues. She became defensive and was unwilling to budge on her position. She claimed she knows what is best for their Mom and does not need or want their advice. She has the authority to act, they do not and she does not need to include them in anything she chooses to do. Deborah and Brian were stunned and did not know what to say.

Deborah and Brian found themselves at a crossroad and with our help, determined the safest course of action was to bring a guardianship to ensure their Mom’s safety and well-being. They love their Mom a great deal and wanted to be certain she was being cared for in the best way possible.

Our team worked closely with Deborah and Brian to retain the services of a guardianship litigator and ultimately achieve plenary guardianship. Questions we needed to help them address:

1. As a family member are you familiar with the signs of incapacity?
2. Is a person with dementia considered incompetent?
3. Do you know how you prove someone is incapacitated?
4. Are you familiar with the process of mediation and the benefits to solving family disputes?
5. Do you know what guardianship is and the pros and cons?
6. Do you understand why your loved one might need a guardian?
7. Are you familiar with the guardianship process?
8. Do you have strategic alliances with key professionals to problem solve and determine the appropriate course of action for your family?

a. Certified Care Manager
b. Elder Law attorney
c. Guardianship attorney
d. Estate Planning attorney who has strong relationships with Guardianship and/or Elder Law attorneys
e. Financial Adviser who has strong relationships with Guardianship and/or Elder Law attorneys

9. You love your family member and you want to care for them; are you capable and willing to serve in the role as a family guardian for your loved one if it proves to be the appropriate course of action?

These are some of the critical issues we have faced with our clients over the years when addressing the issues of incapacity and maintaining the safety and well-being of a client or loved one. So often guardianships are complicated and have significant consequences and are certainly considered as a last resort because it can negatively impact family relationships permanently.

We are always here to help and look forward to connecting with you to create solutions that address your client’s unique circumstances.

Let us help you create solutions that address your family’s unique circumstances.

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