Guardianship versus POA

mlmyers

Hi, first time poster here and a newbie at being a caregiver. A little background: my father was diagnosed with Parkinson’s a few years ago but hid his diagnosis from his family. He also has moderate dementia, and we suspect has been declining for a long time. We have known for years something was wrong (both physically and mentally) but we were dismissed any time we asked questions. We also didn’t press very much because my stepmother is a retired nurse and we knew my Dad was in capable hands. 

 

 

Then last year he and my stepmother separated. We found out that my Dad had been on dating sites and thought he “could do better” than my stepmom, and he became intolerable and it was impossible for her to stay. After the separation he became obsessed with finding another woman to come take care of him, and was willing to put him self in danger, both physically and financially to do so. It became clear, however, that he wasn’t actually dating anyone, but instead became the victim of online scammers. For the last year we tried to talk to him, to warn him about what was going on, but he refused to listen. He wouldn’t let us hire a caregiver, wouldn’t let us help manage his finances, and accused us of trying to steal from him and send him to a home.

 

A couple months ago I got a call that he had again fallen in his house, this time he was on the floor overnight. Since then he has gone from the hospital to a live in rehab facility, back home with a full time care giver, back to the hospital, then to a (horrible) skilled nursing facility, back to the hospital for back surgery, and now a much nicer skilled nursing facility with a full time sitter. My husband and I have become his caregivers, I’m managing his personal details while my husband manages his finances. During this time we have become more aware of how bad his situation is, including not paying his property taxes, utilities, damage to his house and car, hallucinations, mismanaging medications, as well as thousands and thousands of dollars lost to scams over the last year.

 

So far my Dad has slowly become more accepting of our “inference” in his life. While he was home in between hospital stays he was more agitated than he is now, mainly because he was still conversing with his “girlfriends” who wanted him to send money. We’ve since been able to take his cell phone, which has calmed him down but he still insists he wants to go back home and resume managing his life. 

 

Here is my conundrum: we have a letter from his neurologist specifically stating that my Dad can no longer take care of himself, and that he should be in MC. We had explored the option of seeking guardianship months ago (we made the mistake of mentioning this to Dad, which set him off), but are not sure if that should be the immediate avenue to take. I have medical power of attorney but not durable. My husband and I have been debating on having a conversation with my Dad, laying out his diagnosis (we haven’t told him they officially diagnosed him with dementia), and see if he will agree to sign a durable power of attorney. However, my concerns are that 

A) he obviously won’t fully understand that what he is signing and agreeing to 

that a durable power of attorney won’t be of assistance if the best place for him is a MC, and he refuses to move. 

He is scheduled for a neuropsychological test in a month, so I hope to know more then where he is at and what the next steps are. Ultimately we are trying to save ourselves the work and money that seeking guardianship will cause, but I don’t know if we are setting ourselves up to have to file anyway. My Dad was stubborn on his best day, and now is even more so, and I don't know how much protection a POA will give us if he starts to insist on trying to get back online or drive or pay his own bills. 

 

Does anyone have any thoughts or advice? Again, we are so new to this, I would appreciate any help. 

Jane Smith

Apologies in advance for the brief reply; I do not intend to be terse or unkind. 

I am so sorry to hear about your difficult situation and can only imagine the stress you must be under. 

My mother was in middle stage, possibly even early later stage, dementia when she made a dPoA and then revised one. 

Both times, the attorney doing the paperwork did her/his own assessment as to whether or not she was capable of completing the paperwork.  I had been very transparent with the attorneys about her cognitive ability, mental status, and diagnosis. That is how it works in my state, at least. 

A POA is going to be faster, easier, less expensive, and less traumatic for everyone. If you have sole PoA and full legal and financial authority, then you make the decisions. 

I would suggest you locate a reputable elder law attorney in your area. I cannot recall at the moment how to find the list, but I got names from my regular attorney, and off the record from my local Council on Aging. 

Under no circumstances would I try to explain or discuss any of this with your dad, at any time.

 

Sadly, the dementia causes brain damage that means reasoning does not work correctly any longer.  Often trying to have a conversation or explain something or ask permission, ends only in anxiety, distress, confusion, or worse. 

Also, the attorney, if they are worth their charges, will come to you. 

All best to you and your family.

star26

If you are able to get by with just a durable POA at this point I think you will be lucky. I say this because your Dad is already in moderate stage, already has a letter from an MD saying he can't care for himself, and he has a medical history with plenty of notations of his dementia including that he requires a full time sitter. To get and use a POA at this point, not only will you need to get your Dad to sign the documents but you will need an attorney to agree that he is competent to sign the documents (has full understanding) and then you will need everyone who is receiving the documents (such as MC facilities) to accept their validity. If you are using the POA with a person/entity that is well aware of his dementia they may not accept a POA signed so recently. And if there's anyone in your Dad's life that would not be happy with you taking over, that person has a decent case at contesting the validity of the POA. Plus, your Dad has been difficult in the past and POA does not give you the irreversible power that you need at this point.  

Whether you pursue guardianship or POA you are going to need an elder law attorney. You can find one on Nelf.org under "Find a CELA".  This is not the time for you to do any waiting, including waiting for neuropsych testing in a month. Once that happens, that's just more support for why your POA is not possible or valid.  The cost of the guardianship proceedings can ultimately be reimbursed from your Dad's funds. It takes a long time (many months) to obtain guardianship but you can pursue temporary guardianship on an emergency basis. If I were you, I would contact a CELA and get started with emergency guardianship asap. 

Stuck in the middle

I would file for guardianship now.  

A POA should be signed while the signer is competent, which your father is not.  Further, your father thinks you're trying to steal his money and there is little reason to expect that he will sign a POA.  If you can get a POA, that will help you go forward with whatever you need to do, but I would not delay filing for guardianship.  

For one thing, someone will need to represent your father's interest when/if his wife decides to divorce him.  I'm not a lawyer, but I think his wife is his "next of kin" in the absence of guardianship.  She could challenge your POA, saying he wasn't competent to sign it.

I don't know your stepmother and I am not trying to malign her.  However, I suggest you prepare for the worst, hope for the best.  If you might be at war with your father and his wife, you need all the tools you can obtain.  At minimum, you may need it to get him the memory care placement he needs.

I would skip the neuropsych exam.  It did us no good, and you already know what you need to do next.

M1

I also would advocate guardianship and agree completely with no discussion. You're not going to be able to reason with him and will only feed his paranoia. The day for poa is long past, it sounds like.  Read about anosognosia, many with dementia have it (inability to recognize their deficits) and will insist they're fine.

Welcome to the forum.....

mlmyers

Thank you for your insight, I really appreciate it. We have spoken off and on with a lawyer who was recommended by a business associate, which is how I knew to get a letter from a MD regarding my Dad's mental state. I'm just concerned asking their opinion about guardianship/POA - one of those situations pays them significantly more than the other.

mlmyers

I should also say that the divorce has already been finalized, and I still have a good relationship with my stepmom. I don't think the divorce should have even been granted on the basis of my Dad's dementia, but for my stepmom's sanity I'm glad it did. When my Dad first accused us of stealing from him, his divorce lawyer called to ask if we thought he was competent enough to complete the divorce. I think even then he had concerns about his client, but it was more profitable to say nothing. 

Most of my family is pretty hands off as well, they just don't want to deal with him, it's just too uncomfortable. 

MN Chickadee

There are good and bad attorneys. A good one will give you the best advice for your situation. He may be too compromised to sign a POA now. It's not just a matter of you convincing him, he has to be competent in the eyes of the law for it to be valid. Ask around what elder law attorneys your acquaintances like. Many will do an initial consultation for free so you can get a sense of how they are. Don't wait for the neuro appointments. They are important but you need to get good legal advice immediately and get the ball rolling. Perhaps an emergency guardianship hearing be held so that you can make arrangements for his immediate needs and housing while the rest gets worked out. 

It sounds like you need to use therapeutic fibs on his living arrangements. The rehab nursing home he is in will eventually discharge him and I assume you and your husband don't want to live with him full time? Find a MC for him, get on their wait lists and do the research and tours immediately, get it lined up. Call it more rehab. You're going to a different rehab, Dad. It's nicer and look at all these amenities. It's temporary, sure you can go home when you are stronger or when the doctor says it's ok. Rinse and repeat. Make sure you tell the social worker at the current nursing home you cannot care for him. The SW can help find suitable permanent placement. They can't make you take him home, even if they act like they can or pressure you. 

SparkleMonster

I would do a little research on the types of POA. I would recommend doing the durable POA because you will be able to make decisions going forward when your father isn't able to put his .02 in. Although I fully agree with not getting into detailed discussions, which I am learning first hand right now with my own father, I would just let him know you are taking steps to help him when he can no longer do it himself. That approach has helped for me that we are 'planning for the future' and not that he needs the help now. 

Good luck. This is hard. I think spending a little more money now on the right kind of document, will save you hassle down the line and when you'll have bigger issues to focus on. Im glad you brought up this question because I had to double check which kind we had. So very thankful that my father thought to do these documents decades ago. 

John2.0.1

It appears that some financial institutions put a time limit of 10 years for how long they will honor a DPOA. It's their policy. Not the law. Makes no sense to me when it comes to PWD since they will obviously be even worse off 10 years later but it apparently happens. 

I note that my DPOA has a whole paragraph saying I have the power to sue anyone on my mom's behalf if they do not honor my DPOA. If my mom lasts 10 years I wonder if that will let me recoup her legal costs if I need to get guardianship given that even now my mom is not capable of giving informed consent and it would be impossible to get a new DPOA signed given that fact.