FIND OUT EXACTLY HOW YOU ARE DOING AS A DEMENTIA CAREGIVER

TAKE ASSESSMENT

Dementia is a complex and progressive condition that affects millions of families across the globe. While the medical aspects of dementia are often discussed, the legal implications and preparations are equally crucial. This blog post delves into the importance of legal readiness for those diagnosed with dementia and their families.

Understanding Dementia Guardianship and Power of Attorney

When someone is diagnosed with dementia, one of the first and most important steps is to establish legal documents. These documents are not just about managing assets; they're about ensuring that the individual's wishes are honored when they can no longer express them. Guardianship and power of attorney are two legal tools that serve this purpose, but they are not the same.

Guardianship, or conservatorship, is a legal status where a court appoints an individual to make decisions for someone who is no longer able to do so. This process can be lengthy and emotionally taxing. On the other hand, a power of attorney is a document that allows a person to appoint someone they trust to make decisions on their behalf. This can be specific to healthcare decisions or financial matters.

senior with dementia along his lawyer

The First Step: Legal Paperwork

The moment a dementia diagnosis is confirmed, it's time to get the legal paperwork in order. This includes a will, a healthcare power of attorney, and a durable power of attorney for financial decisions. These documents are crucial for a smooth transition of decision-making power when the individual is no longer capable of making informed decisions.

The Will: Your Voice Beyond Life

A will is a fundamental document that outlines the distribution of your assets after death. It's a common misconception that wills are only for the elderly or the wealthy. In reality, everyone should have a will, regardless of age or financial status. A will ensures that your belongings are distributed according to your wishes, not the state's.

Durable Power of Attorney: A Trusted Decision-Maker

A durable power of attorney for financial decisions allows you to appoint someone to manage your financial affairs if you become incapacitated. This can include paying bills, managing investments, and other financial activities. Similarly, a healthcare power of attorney gives someone the authority to make healthcare decisions on your behalf. These roles can be filled by the same person or different individuals, depending on your preference and their expertise.

Guardianship: The Last Resort

Guardianship should be considered a last resort, used only when no other legal documents are in place. It's a court-supervised process that can be avoided if the aforementioned powers of attorney are established. Guardianship can be a complex and invasive process, so it's best to prepare in advance to avoid it.

Legal Counsel: Your Guiding Light

While it's possible to navigate these legal waters without an attorney, seeking professional legal counsel is highly recommended, especially if the attorney specializes in elder law. They can provide guidance, help avoid common pitfalls, and ensure that all documents are in compliance with state laws.

senior with dementia along his lawyer 2

State-Specific Legal Processes

It's important to note that the legal process for setting up guardianship or powers of attorney can vary significantly from state to state in the U.S., and even more so internationally. Always check your local laws and regulations to ensure that you're following the correct procedures.

Personal Experiences: A Case Study

Sharing a personal anecdote, the speaker describes how they managed their parents' legal preparations. They divided the roles of healthcare and financial power of attorney between themselves and their sibling, based on their respective areas of expertise. This division of responsibilities ensured that their parents' wishes would be honored in all aspects of their care.

End-of-Life Decisions: The Hardest Conversations

One of the most challenging aspects of dementia care is making end-of-life decisions. These decisions can be specified in advance through legal documents, which can outline specific wishes like whether to receive tube feeding or undergo resuscitation efforts. Having these difficult conversations early and documenting choices can spare families from making these tough decisions during emotional times.

The Takeaway: Act Now, Not Later

The overarching message from this blog is clear: don't wait. Legal preparations for dementia care are not just about the person diagnosed; they're about the family and loved ones as well. By setting up the necessary legal documents promptly, you can ensure that the person with dementia has their wishes respected and that their dignity is maintained throughout their journey with the condition.

senior with dementia along his lawyer 3

Conclusion: Empowerment Through Preparation

Dementia care is undoubtedly complex, but with the right legal preparations, it doesn't have to be complicated. By understanding and utilizing tools like wills and powers of attorney, individuals and families can navigate the future with confidence. The key is to act early, seek professional advice, and communicate openly with loved ones about these critical decisions. In doing so, you can focus on providing the best possible care and quality of life for those affected by dementia, knowing that the legal aspects are securely in place.

Let me know in the comments below if you have questions about dementia that you need answered.

Read More:

One Mistake A Dementia Caregiver Makes By Not Traveling With Kathy Smith Shoaf

Check the other podcast: https://www.thinkdifferentdementia.com/category/podcast/

Email me: [email protected]

Message me at Instagram: https://www.instagram.com/thinkdifferentdementia/

Navigating the Journey Empowering Strategies for Dementia Care

Introduction and Purpose of the Episode

[0:00] Thank you guys for coming and yet again I'm here to serve you tonight.

This is Dementia Made Simple, where we know dementia is complex and progressive, but that doesn't necessarily mean that it has to be complicated.

So my job is to try and make dementia as simple as possible for everybody to understand.

And I have been working with clients over the past 30 years as an occupational therapist Um, and my goal is to try to give you guys, uh, reliable information and actionable strategies to make it easier for you to take care of your loved one with dementia as well as to give them their best quality of life, improve your relationships and delay their decline.

And so tonight's episode is going to be talking about guardianship.

So what is guardianship? And it was kind of fun and interesting.

[0:57] Excuse me, because I actually work in home health and I went to our social worker.

I'm like, I'm getting a lot of questions on guardianship.

And she's like, well, okay. So she kind of helped me through this a little bit.

So what do we need to know about guardianship? Let's talk about guardianship.

Is there a difference between guardianship and a power of attorney?

Is there a difference between guardianship and a medical power of attorney.

What does the term guardianship mean? So I thought I would start a step back.

Let's talk about your loved one, somebody you know, yourself, you're diagnosed with dementia.

The very, very first thing that I always recommend people do is make sure that they have their legal paperwork set up, right? And what do I mean by that.

Everybody needs a will. If you're 22 years old, you need a will.

If you're 52 years old, you need a will. If you don't have a will, you need to go get a will. Everybody needs a will.

We know a few things in life for sure. Everybody's going to die.

[2:04] Nobody's going to get out of this world alive. Unless the Lord comes before we die, everybody is going to die.

So every single person needs a will. What does a will do?

A will just tells people where your stuff's gonna go.

Nobody's gonna take it with them, right? Hi, Kathy, great to see you here.

Nobody's gonna take anything with them. We had an old joke.

You never see a hearse pulling a U -Haul, right? Because the person who's passed away cannot take it with. So everybody needs a will.

The Need for a Will and Power of Attorney

[2:37] Even if you don't feel like you have assets, you need a will.

The second thing everybody needs, even if you're 22 years old, you need a durable power of attorney for financial decisions.

Every single person needs a durable power of attorney for health care decisions or a health care power of attorney.

They can be the same person. They do not need to be the same person.

[3:04] I use my parents as an example frequently. Um, in the case of my parents, they have two kids, two daughters.

We in September, between September, we signed them in December, but we started working on getting their paperwork together.

[3:20] We got them a will, an updated will, a durable power of attorney for financial decisions and a healthcare power of attorney.

So the healthcare power of attorney and the durable power of attorney can be the same person, but they do not need to be okay. Okay.

So in case of my parents, I have a medical background, so I am the medical power of attorney.

My sister is the secondary. So if something happens to me before my parents pass away, my sister gets to be the power of attorney.

Hey, Lori, great to have you here. So glad you're here.

So I'm the medical power of attorney and my sister is their financial power of attorney. So we worked it out.

She's the financial power of attorney. I'm the medical power of attorney.

Attorney, if something happened to my parents and they are unable to make their own decisions for them, we have a document in place that says, okay, from a medical power of attorney perspective or from a medical, medical healthcare power of attorney perspective, um, I have the discretionary power to make the decision for them knowing that their wishes are not to have life sustaining measures. Right.

And I told them, I promise I will make the decision. or pull the plug. I will pull the plug.

May not like pulling the plug, but I will pull the plug.

Making Difficult Decisions and Legal Options

[4:40] But not everybody has a situation like that. You have to know the people that you are going to be asking.

If they are people that you don't feel are going to be able to make that hard decision in the moment, then maybe you do want to make that.

Usually people have three choices.

Do everything, do absolutely nothing. Let me go or let my health care surrogate or power of attorney, health care power of attorney make the decision for me.

So typically those are the three choices.

Now, when a person makes the decision that they don't want anything done, there's a further document that kind of line by line can go through.

I do want things like a tube feeding, or I don't want a tube feeding, or I don't want to have, I don't want to be intubated, but you can do chest compressions.

I don't want you to do chest compressions, but you can intubate.

There are lots of legal things that go on regarding these documents.

So, I tell everybody when you have a diagnosis of dementia, when you first get a dementia diagnosis, you want to make sure you have your legal papers in place, a will, a healthcare power of attorney, and a durable power of attorney for financial decisions.

[5:59] It makes it hard when you have families that are not as cohesive or there's a lot of conflict or whatever. It does not need to be a family member.

There are people that you can choose outside to make those kinds of decisions.

It's a legal document. It's a legal process.

So having said that...

Durable powers of attorney For medical and financial decisions are not the same thing as what we're talking about tonight Which is guardianship.

So what is guardianship?

Right a guardianship is a It's a legal process.

It is someone who is Identifying that this person who they're living with or who they are helping are unable to make their decisions for themselves.

There are lots of scenarios. I can come up with thousands of scenarios for you regarding guardianship.

So the other word for guardianship is called conservatorship, right?

These are the legal terms. This is a legal process.

[7:16] And so because it's a legal process, the best thing you can do when you are considering a guardianship or conservatorship is to get legal counsel.

You do not, according to the social worker that I spoke to this morning and she's the one who kind of helps us when we have these kinds of situations occur, you do not technically need to have an attorney in place, right?

You can apply for guardianship or conservatorship for an individual.

[7:52] Each state is different, but you do not have to have an attorney.

Always an attorney is going to make it easier because they know, especially if this is what they do, if it's an elder care attorney, this is what they do. They know the loopholes.

They know what the process is, but technically you do not actually need to use an attorney to get a guardianship of an adult or of a person.

Legal Process of Obtaining Guardianship or Conservatorship

[8:21] You do need to go through the right process. So in the state of South Carolina, and there are 50 states and I cannot speak to foreign countries, every country has their own laws and rules and regulations regarding how to obtain guardianship or how to obtain conservatorship over a person.

But in the United States and specifically here in South Carolina, my social worker friend tells me if you want to pursue guardianship over an adult and you don't want to go to an attorney, which is what we both recommend you do first, is go to an attorney and speak with an attorney, is you go to the probate court.

[9:05] Here in South Carolina, you go to the probate court, there's a big long form that you can fill out to work with people to find the information available to be able to, to go to the court and say, I am seeking guardianship or conservatorship over this person.

So I grabbed a couple of things real quickly online, and I got to put my eyes on because I'm getting old and I can't do it without my eyes.

Like I said, a guardianship is a legal process, right?

It's absolutely a legal process, but it's used to protect the person who is unable to care for themselves anymore by virtue of incapacity or disability.

The court, and this is why it is a legal process. The court actually then appoints the legal guardian.

So you apply to become somebody's legal guardian and when you when you are in essence looking for guardianship of an adult, what you are saying is that person is incapacitated.

They are incapable of making their own decisions.

The Importance of Guardianship

[10:23] It is a special standing, it is a special thing that you have to do in order to make sure that that person is taken care of.

But what that means is the court is going to be looking at this very carefully to make sure that this person truly is incapacitated or unable to make their own decisions.

A guardian is appointed by the court to protect the interests of the elderly person or the incapacitated individual, right?

Because the creation of a guardianship may actually take away some rights of an adult.

[11:07] Very specific steps need to be taken in order to make sure that this is something that happens.

The person who is being, um, taken literally what this means is you're taking your parent to court to say that they're incapable of making their own decisions.

They as an individual have a right to be notified and a right to have representation in a guardianship process.

So it's not you just go into court and saying, okay, I'm trying to get guardianship over or my mom or my dad and here's all the documentation, they are entitled to their own legal representation.

[11:50] I'm sure that not everybody actually goes through that process, but they do have the right.

It's a legal process. They have the right to be represented.

They have the right to be heard. Um, if, um, during the process, they can confront witnesses, they can, they can, they can confront you in a court and say, I don't think I'm incapacitated.

They can bring up their own, um, guardian, I'm not guardians, their own, um, witnesses and print present evidence. They, it's, it's a court proceeding.

I don't, I don't know if you guys have ever been in a court proceeding, but it's actually a very fascinating thing to go and watch.

Distinction between Guardianship of Person and Estate

[12:37] They also may, and what I found out as I was researching this, there can be a guardian ship of the person, but there can also be a guardianship of the estate.

So apparently those are two different types of guardianship.

[12:51] So the guardianship of a person would require the guardian to make decisions regarding the care of that individual.

So I go to court and I, um, my mom, uh, my dad passes away and I try to go to court and get guardianship of my mom.

Um, I have to prove that she is incapable of making her own decisions in South Carolina that entails two physicians, two separate physicians. physicians.

And per my colleague, the social worker, they can be in the same medical practice, but they cannot be seen by those two physicians on the same day.

So you have to take mom to the doctor today and get this doctor to declare her incompetent to make her own decisions.

And there's a form that they have to fill out that says mom is incapable of making her own decisions and then two or three days later or a week later you got to take mom back to a second physician who has to on his own make the determination whether or not he feels mom is capable or incapable of making their own decisions right so when when it gets to that point and then you get to court the guardianship will make the guardian the person who is appointed it's an appointment.

[14:18] You have to prove that you're worthy of getting the guardianship.

[14:22] But my friend says the one who starts the guardianship process first is usually the one who will be granted the guardianship unless there's some extenuating circumstances.

It's kind of like first come first serve. So if you are considering doing guardianship of an adult and there's some contention going on, if you go and you get your paperwork in first, maybe you stand a better chance of being able to be appointed as that person's guardian.

[14:59] So, we have to make sure that we take care and the support of that person.

They will be required to consent to and monitor medical treatment.

They will be required to arrange professional services, monitor the person's living circumstances, make sure they're safe.

Responsibilities of a Guardian

[15:15] They are the ones who then make the end -of -life care decisions and preparations.

And when making these decisions, the guardian is expected to consider the person who they are now the guardian for.

They're expected to consider their wishes their own individual wishes, And they will continue as a guardian until this person passes away or until yet again This is a legal proceeding right until the court determines that the guardianship is no longer necessary So like I said, there are two types of guardianships, right?

There's guardianship of an individual and then there's guardianship of the estate.

So what is guardianship of the estate? Guardianship of the estate will require the guardian to assume responsibility of the person's personal property.

They have to make sure that they preserve and protect the assets.

[16:09] Distribute income, obtain appraisals of the property.

They have to keep the court informed of the status of the estate and like a personal guardian, a financial guardianship continues until that individual dies or until the court determines that the person no longer needs a guardian, right?

So we're talking about a guardian for an elderly or an incapacitated individual.

So sometimes the court can appoint somebody a guardianship.

For example, say somebody was in a motor vehicle accident and they might have a brain injury or something and they are incapacitated for a period of time and a guardian is appointed for them at that time.

And say two years later, they've recovered from their head injury, they are able to function now, they can they can prove to the court now that they are not incapacitated that guardianship of that, Incapacitated individual can be rescinded.

So let's talk a little bit about You know at the beginning we talked about durable power of health care and medical power of attorney and so on I've actually.

[17:27] I've been in situations where I work in the hospital, I work for home health right now, but I do work in a hospital system and I've worked in a hospital system extensively through my career that people come in to the hospital and the hospital.

[17:42] So they're living home alone. They have limited help or family available or whatever, or the family is unable to get this individual to concede or to let them help them.

And they come to the hospital and they are obviously incapacitated.

Well the hospital will go to the, you know, if the person has a health care power of attorney in place, that makes it so much easier because then there's an identified individual that can then take over that decision making because that's what the health care power of attorney is for.

It's when I'm unable to make my own decisions. Now, all of a sudden I have appointed in my specific case, my husband is my primary healthcare power of attorney and my daughter, who is a nurse, is the secondary power of attorney, healthcare power of attorney.

So if my husband passes away, my daughter will make the decisions for me.

So say something happens. I get hit by a bus.

I go to the hospital. I have a massive head injury.

[18:45] My husband comes to the hospital. Boom, here's my medical power of attorney for decisions. I'm obviously incapacitated right at that moment, right?

Massive head injury. I'm incapacitated.

My husband has the document. He gives it to the doctors and says, here's her health care power of attorney.

I'm the decision maker right there. And then my husband makes all of my decisions for me and we don't have to do anything else. Right?

So now back to the gentleman who or the person who doesn't have a health care power of attorney They won't get one because they don't understand they need one.

[19:21] And they go to the hospital because they had a urinary tract infection and the doctors come in and they treat the urinary tract infection.

And all of a sudden they realize, oops, we're cuckoo for Cocoa Puffs, right?

So they have people like me go in and do some cognitive testing.

Sometimes they'll have the psychiatric unit in the hospital come in and do cognitive testing to decide, two physicians, two separate physicians, to decide that this person is not capable of making their own decisions.

So if they have the health care power of attorney, now all of a sudden the health care power of attorney makes the decisions.

If they don't have a health care power of attorney, guess what?

The hospital goes to court.

And the hospital will get guardianship of that individual. So it.

[20:09] So guardianship, like I said at the beginning, is a legal process and I have had patients in the hospital for a year, for a year straight.

They live in the hospital, they wear a hospital gown, they get taken to the bathroom by the nurses and they get their foods, um, three squares a day, but they live in the hospital for a year until the hospital gains conservatorship or guardianship of them through the court system proving that they are unable to take care of themselves and then the hospital places them in a skilled nursing facility or an appropriate facility.

So guardianship can be very complicated.

[20:52] It doesn't, I don't think it's always as complicated, but it is not an easy thing to do and it is definitely something that is harder to do than just say pick up the phone and like if you wanted to get a healthcare power of attorney, that's an easy process.

So I know some of you guys out there are challenged by this.

I have several people that watch and that communicate with me who have loved ones who I know based on conversations are not able to make their decisions for themselves.

[21:33] But for you to actually go ahead and get a conservatorship or guardianship of that individual, if you at all have the resources to do it, I would recommend you do it through an attorney.

This is a legal process. This is, you know, the more you understand the legal system and the legal process, the easier it is for you to be able to.

Keep the, to follow the rules but having said that you do not have to have an attorney in order to do it but you have to have the right paperwork and in South Carolina when you want to do a guardianship or a conservatorship of a person you go to the probate court and I have a little visitor down here hello hang on, I'm just going to holler at my husband real quick, leave.

[22:27] Louie, I don't think he can hear me.

I'm sorry if you guys can hear my dog. I apologize.

So here's a couple things to think about. Okay, so what kind of alternatives are there to guardianship, right?

So some alternatives can be a representative or a substitute payee.

So why would we need a guardian to pay our bills, right?

Make sure that we have a roof over our head, get food on our table, get our medication, all of those kinds of things.

There are places that do case management services. There are geriatric case managers.

So these are people that can help somebody who is having trouble, but they're not legally their guardian, but they do help to make the decisions and the.

Different ways of managing care and decision-making

[23:18] I'm so glad that was helpful, Ms. Jenette, Jennifer, sorry.

So a case management or a care management company, healthcare surrogate is a different way of doing it.

If people have vast estates, you can set up a trust.

We talked about the durable power of attorney for medical and the durable power of attorney for financial decisions, right?

[23:48] Other alternatives. So the courts are always going to want to go to the least restrictive, right?

We don't want to take somebody's autonomy away if they have the ability to make their own decisions.

So we want to be able to give them as much autonomy.

The court's always going to try to keep the person's individual rights maintained first, before they take it away, it's because it's a it's a legal decision and it's I don't want to say it's irrevocable irrevocable means that you, you know, cannot change your mind because obviously, like we talked about at the beginning, there are times when the court can decide that the person is no longer incapacitated and take the guardianship away.

So it's not something that's irrevocable.

This guardianship is something that can be revoked, but it is very serious.

So the court's not going to just take somebody's rights away because I say mom's cuckoo for Cocoa Puffs.

They're going to want lots and lots of evidence and documentation of it.

[24:59] Some other ways. So if a person has a larger estate, you want to do a trust or a living will their community advocacy systems, if it's a financial thing you can do joint checking accounts so you can help.

Oversee and make sure things are being taken care of especially.

[25:23] Bills and paying a person's bills and things like that, and community agencies and services a good guardian is always going to make sure that they take into account the wishes and the desires of the person that they are the guardian of, When making their decisions about where they live their medical treatments their end -of -life decisions And remember, the court will only remove those rights that the proposed person under guardianship is incapable of handling.

Rights lost under guardianship: housing, medical treatment, end-of-life decisions

[25:57] So when the courts appoint a guardian, the following rights, these are some of the rights that a person can lose when you assume guardianship for them, right?

They lose the right to decide where they live. You then become the person who decides where they live.

[26:17] They lose the right to consent to their own medical treatment.

So you know, when you go to the hospital or even when you go to the doctor, right?

When you go to the doctor, I don't know if you guys pay attention to all the thousands of forms they stick in front of you, right?

But there are two, there are two forms that they always put in front of you.

One is the privacy form saying, who will you allow to know what your medical information is, who they can release that information to?

So one is the HIPAA, the Healthcare Information Portability and Accountability, um, accountability Act, HIPAA, right?

Healthcare Information Portable Privacy Act.

[27:07] Okay, so that's one of the forms that you fill out every single time you go to the doctor or once a year or whatever It is right.

The second form everybody fills out when you go to the doctor is a consent for treatment So when you take over somebody's?

Conservatorship or guardianship You take over the you make the decision they cannot consent for treatment anymore They cannot consent for somebody to draw blood.

They cannot consent for a If they need a colonoscopy, the guardian is the one that makes the decision whether or not they get the colonoscopy.

Whether they need hospice care, the guardian is the one that makes the decision for the hospice care.

So they lose the right to consent to any of their medical treatment.

They lose the right, the person who becomes the person who's being guarded.

[28:04] Loses the right to make their own end of life decisions.

Today, if something happened to me and I found out I had terminal cancer, I can make the decision if or when I want to start hospice, right?

My end of life decisions.

I can make the decision if or when I want a peg tube.

I can make the decision if or when I want to have chemotherapy or radiation therapy.

When a person is under guardianship of another person, the guardian makes all of those decisions.

That person does not make any of those decisions. So you need to know what decisions that individual would have wanted you to make.

And so, you know, if you're at this point with somebody that you're helping now, Now, I hope you had those conversations earlier on.

If you didn't have those conversations and you're looking at becoming a conservator or a guardian to an adult parent or spouse or whatever, make sure that you realize that you best be having these conversations with the people that are going to be the people in your life that you want to be able to make the decisions for you.

Importance of having conversations about wishes and documenting them

[29:22] You need to have people know what your wishes are and write it down, guys. There's nothing wrong with writing it down.

There are multiple different places on the internet where you can find.

[29:33] Life plans and things like that where you can actually delineate out what you would like your wishes to be The person who is under a guardianship Loses their driver's license. They cannot have a driver's license, driver's licenses. This is something which which is near and dear to my heart because we talk about this a lot, right? Driving with dementia.

So a driver's license is a privilege.

It is not a right We do not have the right to drive a vehicle. It is a privilege there.

Therefore that is why we get a license, right? that's why a At least in South Carolina a 13 year old cannot get a driver's license because they're not old enough to have a driver's license they do not have the right.

They have not become old enough and proven that they are capable of making those decisions and therefore they driving is a privilege.

It is not a right. We don't have the right to just get in the car and drive, which if you think about it that way makes it easier when we start to talk to people about needing to take their driver's license away.

People believe it's their right to drive. You do not have a right to drive, nobody has a right to drive.

[30:46] The person loses the ability to sell or buy property, make transactions, they cannot sign a contract, they lose the right to sign a contract.

The person loses the ability to own or possess a firearm or a weapon.

So here in the South, that's a big fat hairy deal, right?

People want their weapons, people want their guns. You couldn't have a concealed weapons permit. You couldn't have a gun in your house.

If you become a conservative, if you have a guardian, then you lose the right to have those rights.

Those that kind of thing you cannot file a lawsuit, and you cannot sign a contract So you cannot go to the bank and open a new bank account you lose the right to do those things Which is one of the reasons why the courts?

Are so serious about it and why guardianship is a legal process.

It's not just an easy thing to do It is an absolute legal process that that And it's because we're taking people's ability and rights away.

They lose the right to make the decision to marry. They cannot make a decision to get married.

They lose the right to vote. If you put somebody under guardianship, they cannot vote.

So the courts are take will take this extremely seriously because you're taking somebody's.

Seriousness of guardianship: taking away someone's independence and rights

[32:13] Independence more than just, you know, their ability to get dressed or their ability to to run a household or take their own medicine, you're taking their certain rights that we have.

The court then takes that away and gives it to the guardian because establishing a guardianship is a legal process that involves removing the individual's right.

Considerable due process occurs when this has happened. So what kind of thing what does that mean that literally means that?

[32:54] There are that the courts have put into place Systems to protect the person who we are trying to become the guardian of what are some of those?

Processes right they have the right to notice they you cannot do this in secret Becoming a guardian of somebody is not we're doing it under the rug They, they are required to be given notice of all proceedings.

They have the right to representation by counsel, which means that an attorney or somebody can be appointed to make sure that their rights are being taken care of, that they're not being taken advantage of, right?

[33:41] They have the right. I'm not saying that everybody necessarily will...

What's the word I'm looking for...

Oh gosh, I just lost my words. They have the right to be in in attendance of all of the proceedings and court hearings.

That's not to say that they will execute that right that they will actually do that they actually want to be there, but they have the right to be able to attend all of these legal proceedings.

Things, they have, they are given the ability to compel, confront, and cross examine all witnesses.

Legal Proceedings: Role of Judge and Attorney

[34:25] So in other words, it'll be in a court, there will be an attorney there, or there should be an attorney, whether it be the probate, there will be a judge, right?

And so the judge is sometimes the one that will facilitate the questioning.

But say you, I'm trying to become a guardian.

Let's use my parents I'm trying to become a guardian of my mom because I've decided my dad's cuckoo for Cocoa Puffs and cannot make mom's decisions anymore and I'm trying to, Get conservatorship of of her well she could bring my dad in as a witness and I would have to be able to talk and Answer the questions, right?

So So it's not or she could bring my dad in as a witness for her to say no, she's not as cuckoo poke for Cocoa Puffs as what my daughter believes.

Right. So that individual has the right to cross examine and confront all of the witnesses.

They also have the right and an allowance in order to be able to present their own, their own evidence. evidence.

So if they have evidence to the contrary, they can submit that evidence to the court and be able to present that evidence.

And they can also appeal.

[35:51] They have the right of an appeal to the determination of the court.

So because this is a legal proceeding, becoming a guardian of somebody is a legal process.

They can appeal it. It's just like any legal type of proceeding, right?

Most legal things, if you've not been in many legal situations, be grateful and I have not, but you always have the right to an appeal.

They can present a clear and convincing standard of proof and they actually have the right to a trial jury, which I'm pretty sure most people don't go to a trial jury for the decision of whether or not they are competent to make their own decisions, but these are some due process protection that an individual will have if you are seeking conservatorship of them.

Importance of Legal Assistance for Guardianship Process

[36:51] Right or due process may vary from state to state because each state is different each state's laws are different Which is why I say if you truly are, Considering becoming a guardian of an adult who has an incapacitation, I would recommend you do it through an attorney.

Yes. It is going to cost you some money No, it is not required at least not in the state of South Carolina, but sometimes you know, mistakes are made that could be prevented that actually may cost you more money in the long run.

I'm very sure that most states in the United States have some sort of legal aid system where you can maybe access, where a person can access some assistance, for being able to facilitate a process if you truly need to get guardianship of an adult.

My best advice and you know this is this is just me talking right my best advice is always going to be try to find your social workers.

Social workers this is what they do. Social workers know the local resources they know the local economy for lack of a better word right they know for example.

[38:12] Who to contact in their county, where the legal aid might be available.

They may know some low -cost attorneys that can help you.

They might be able to help you talk through, okay, this is where you go to this courthouse and this is the paperwork.

They might even be able to help you fill out some of the paperwork.

It just depends from state to state.

But because each state is different you have to know what the rules and regulations are in your state.

And Pietra welcome I know you live in Australia I have no idea what the process is in Australia for guardianship or conservatorship of an incapacitated adult so that is outside my country of where I reside in any type of guardianship the court may under certain circumstances limit the guardians person's authority.

Court's Guiding Principle: Least Intrusive Measures for Guardianship

[39:10] The guiding principle the courts are always going to do is that they want the least intrusive measures.

[39:19] So the least intrusive measures to keep that individual who there's who were seeking guardianship of safe.

They want to make sure that the person Retains as much of their own autonomy as possible, So they're not you know, it was a long list I mean they lose the right to be able to decide where they want to live They lose the right to be able to consent to their own medical treatment.

They would lose the right to have a driver's license Buy or sell property own a firearm Sign contracts or file lawsuits make their own end -of -life decisions marry and vote.

So those are a lot of very.

[40:03] Life -altering, potentially life -altering decisions that people make for themselves.

So the court is always going to go with the least invasive way of being able to make sure ensure that that individual remains safe.

And a guardian might be a family member, a friend.

It could be a public or private entity that's appointed by the court.

So say you go into a situation, here's my exuberant dog again, you go into a situation where there's some contention, there are two parties, they're fighting, but it becomes evident to the court that this person truly needs a guardian.

If the court cannot decide which one of these two parties is going to be the guardian, they will appoint an outside guardian, but they will not not make sure that that adult individual.

[41:05] Has somebody then who is able to make their decisions for them.

So yet again, to just give a real quick recap over tonight's program, we were talking about guardianship, right?

Guardianship is different than a durable power of attorney for health care decisions or durable power of attorney for financial decisions.

If you or a loved one are diagnosed with dementia, the very, very first thing that I always recommend people do is you have to get your legal paperwork in, you have to get your legal paperwork set up first, particularly if your cognitive capacities are not yet significantly impaired enough that it is vastly evident to an attorney because if you like with my mom, we were borderline close.

We got their their wills and things set up in December. If the attorney had.

Importance of Having Legal Documents in Place

[42:15] If we had waited longer and it had become more and more evident that my mom was not able to make those decisions for herself anymore They would not have allowed her to sign the will they would not have allowed her to sign a health care power of attorney They would not have allowed her to sign a durable power of attorney for financial decisions.

That is the reason I say First get your legal stuff in in place wills and things and durable powers of attorney for health care decisions and and for financial decisions there and they are not super super complicated, I definitely recommend doing it with an attorney if you can but there are multiple websites out there that allege to have state -specific documents for fairly low cost right?

A will does not need to be complicated a health care power of attorney that is not complicated they're fairly standardized.

Importance of Standardized Documents for Dementia Care

[43:15] Standardized documents so that is where I always tell people if you get a new diagnosis in your family of dementia the very first thing you want to do is get those documents in place because if they are too far advanced they will not be able to make those decisions and then you're then you're up a creek without a paddle, because if you have a healthcare power of attorney and you are deemed incapacitated by two physicians, guess what?

Healthcare power of attorney stands, right? Durable power of attorney stands, at least in the United States.

So if you set those documents up at the beginning and then the person is declared incompetent by the two physicians, they're not capable of making their own decisions.

You don't have to go to court because those documents, that's when those documents take over.

[44:09] So when you go to the hospital and you have those documents and two physicians say she's not capable of making those decisions, your health care power of attorney kicks in.

If you go to the hospital and you don't have a health care power of attorney and two physicians declare you incompetent to make your own decisions, then all of a sudden we have to go through a legal process.

So I hope this was helpful to kind of delineate out what the difference is between a guardianship or conservatorship.

Those are two separate words for the same thing and how we could use a durable power of attorney for health care and a durable power of attorney for financial decisions to circumvent the process.

They're both legal processes, but one you control and one the court controls.

So throw me some comments out there. I hope this was helpful for people.

[45:04] I thank you for being here tonight. I'm trying to do these Facebook lives a little bit different more topical So that we can put them up and say this is where we talk about this.

This is where we talk about this This is where we talk about this.

So right now I'm still getting my, My duck's in a row trying to figure out my process. So at the moment I'm still taking requests, if you would, about what you guys want me to talk about.

But hopefully pretty soon I'll have my ideas together and then I'm going to start to put out specific topics at a time.

So last week we talked about meaningful activities.

This week we talked about guardianship. A few weeks ago we talked about UTIs.

So thank you very much for joining me. I do ask that you give me ideas.

I'm here to serve you. I want to answer your questions.

I would love to know who was out there. Thank you, Lori, for joining.

I always appreciate having you here.

[46:03] Pietra, thanks for giving me information about Australia. You guys have a lot of different things going on there.

Jennifer, I definitely want you to have your husband watch this with you later on. Um, Melissa, thank you for joining and I, um, Miss Kathy, thank you for being here.

So as I end all of my programs, the Lord bless you and keep you.

I will be back here next week again.

Um, I'm kind of liking the Thursday night to be honest with you.

It's a little easier in my week, but I'll throw it a poll and we'll see.

Um, I can do Tuesdays or Thursdays. Those are the two best days of the week for me.

So, yet again, the Lord bless you and keep you. I will see you guys again next week if you want to.

I do the other program called The Baffled Brain in the Large Alzheimer's Group, but I post cross -posted here so you can watch it later on.

So, blessings if you want to.

One more thing, you can subscribe to my YouTube channel if you haven't yet.

All of my videos excepting these go on there and then you can watch the the baffled brain through that venue too.

So I will see you guys again next week. Bye.

Subscribe To Dementia Caregiving For Families Podcast

If you feel like dementia caregiving is hard and unpredictable and you are struggling to help a spouse or a parent living with dementia, join our next free workshop.
 https://www.dementiacaregivingmadeeasy.com/wsl

Join our Facebook Group at: https://www.facebook.com/groups/1301886810018410 

Become a  Member of Our Exclusive Program!  https://www.dementiacaregivingmadeeasy.com/start

Subscribe To Our Newsletter

About the author

“Think Different” Dementia’s owner, Lizette Cloete, OTR/L graduated as an Occupational Therapist from the University of Pretoria in South Africa in 1992. Lizette has almost 30 years of experience as an Occupational Therapist in a variety of settings, the latest being in the home health environment. She enjoys teaching on the topic of dementia, most recently presenting at a national conference on the topic “Dementia Made Simple”.

Disclaimer: These blogs, videos and any work done by Lizette Cloete OT, as a Member of Think Different Dementia, LLC, is given only as educational content and consulting work. This does not create an Occupational Therapist-Patient Relationship. The educational content and consulting work performed should not be considered medical treatment as an Occupational Therapist. The consulting work does not take the place of medical work normally performed by a licensed Occupational Therapist. Please consult a licensed Occupational Therapist for medical advice.

>
Success message!
Warning message!
Error message!