Who Will Be Responsible?
Who Will Be Responsible?T
hese are words that no family wants to hear: Alzheimer’s, Dementia, Parkinson’s, Stroke. While different afflictions, the end result can be the same; they are debilitating diseases. They are followed by three words that can change the dynamics of a family very quickly: “Long Term Care.”
Many times these words come as a shock. Other times, it is a long-held suspicion come to fruition. Once heard, many families find themselves scrambling for information. My hope is this article will give families some guidance in the few, important first steps after hearing these words. Where to turn? Who to trust? Luckily, there are answers.
While I realize that there are many other inter-familial issues to discuss, such as the emotional response to the diagnosis, putting together support systems, and dealing with the loss of independence of a loved one, this article focusses on the legal options for a family facing an Alzheimer’s or dementia diagnosis.
The first thing to understand is the concept of legal capacity, the ability of a person to understand and comprehend the consequences of a certain act (entering into a contract, signing a legal document, managing finances). While capacity can be intact in the early stages of the diagnosis, because Alzheimer’s and dementia are generally progressive, capacity will diminish over time, sometimes quite rapidly. If your family member has diminished capacity, the family must determine who is responsible for making health care and financial decisions on their behalf.
If your family member has prepared an estate plan, there may be documents such as a “Living Will and Power of Attorney for Health Care” or “General Durable Power of Attorney.” In these documents a signor (your family member) has nominated someone to make health and/or financial decisions if the signor becomes incapacitated.
No one ever knows what the future holds. As we live longer, we increase the likelihood that some form of short term (due to accident or illness), or declining incapacity may be in ours or a family member’s future. Knowing someone you trust has the legal authority to follow your wishes brings peace of mind. Simple advanced planning alleviates a great deal of stress, regret and expense later.
If there are no Powers of Attorney in place, the Idaho Statutes offer guidance on a priority of decision makers, such as a spouse, adult children, parents, brothers and sisters. However, many times a Guardian or Conservator is required to allow a surrogate decision maker to act. In Idaho, a Guardian is a court-appointed decision maker for health and personal care decisions. A Conservator is a court-appointed decision maker for financial decisions.
No Guardianship or Conservatorship case is simple. The courts are granting permission to make decisions on behalf of someone else (keep in mind that most people have authority to make his or her own decisions), and therefore, the cases are taken very seriously. A proposed Guardian or Conservator must take a training course and be background checked. Professionals are appointed to report on whether or not he or she is fit for such a role. A case can be especially difficult if there is more than one son or daughter who wants to be appointed. Priority is given to the person preferred by the person to be protected (someone nominated in a Power of Attorney document or expressly), however if a preference is not expressed, all children have equal priority to serve as Guardian and Conservator. This means that litigation may be necessary in order to determine who is better fit to serve in such a role. This can be very time consuming and very costly.
Another issue to consider is how to pay for long term care if it necessary. In-home care, assisted living, and skilled nursing care can be very costly and typically increases as the disease progresses. Many find out too late that Medicare does not cover these costs on a long-term basis. The earlier a family puts together a financial plan to pay for care, the more options a family will have.
My bottom line is this: Don’t wait until disaster strikes to make a legal and financial plan for a family member facing a loss of capacity. Speak to a CELA (Certified Elder Law Attorney) as early in the process as possible to find out your specific options and make a thoughtful, well informed plan.