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“Do I need to become a guardian for my parent?” Boston Elder Law Attorneys Specializing in Medicaid Planning Cohen & Oalican, LLC 617-263-1035- Boston 508-821-5599 – Raynham 978-749-0008 - Andover
This scenario may be all too familiar: your mother has dementia and is living alone at home. She’s always been a fiercely independent person. However, she’s beginning to “lose it”.
Bills are not getting paid. Last week she left the stove on after making breakfast. You and your siblings just got together for the holidays and it seems clear you need to do something. Everyone has ideas but no one has a clear plan.
It can be a difficult transition when a parent is no longer able to care for themselves. It may be unclear when its appropriate to take control of financial matters or health care decisions. Growing up as children we are used to our parents telling us what to do and looking out for our well-being. What happens when the children have to parent their parents?
When a family member has cognitive impairments they may not be able to make decisions for themselves or their ability to participate in complicated decisions may be limited. Our clients want to respect their parent’s wishes and independence but they also want to make sure their parents are safe.
Clients often ask us do I need to become guardian for my mother? Hopefully the answer is no. You can have legal authority to make decisions for another person in one of two ways. First is by having the Probate Court appoint you as guardian.
Guardianship and conservatorship are legal relationships where the Probate Court gives one person (the guardian or conservator) the power to make decisions for another. Whenever possible we try to keep our clients out of court and that includes guardianship cases. We try to avoid guardianship for several reasons
First you are bringing your family’s private affairs into the public realm. Second the courts move slowly. Finally, the legal fees can be quite high, especially if there is any disagreement regarding who should serve as guardian. These problems have only gotten worse with the recent changes in the Massachusetts guardianship laws in July, 2009.
The second way to get decision making authority is by having your parent directly give it to you with a durable power of attorney or health care proxy. A power of attorney is a document that allows a client to appoint an individual to act as the client's agent ("attorney-in-fact") on financial matters should the client ever become incapacitated.
A health care proxy gives another person (the agent) the authority to make health care decisions should the principal become incapacitated. These documents are also called “advanced directives”.
They are great way to make sure that you have the legal authority to make decisions for your family in the event they become incapacitated. Even if your parent has already been diagnosed as suffering from Alzheimer’s or has dementia that does not automatically mean you need to be come their guardian.
The first question to look at is whether your parent has enough understanding to sign a durable power of attorney or health care proxy. Our goal is to help families in the simplest, most cost effective way possible. Using advanced directives instead of guardianship is one way to do so
Boston Elder Law Attorneys Specializing in Medicaid Planning Cohen & Oalican, LLC 617-263-1035- Boston 508-821-5599 – Raynham 978-749-0008 - Andover