Stepping In as Alzheimer's Progresses: When the Court Must Decide

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Getting your affairs in order now can help ease the pain of stepping in when a parent's ability to make financial and health care decisions slips away.

Having the legal documents that communicate their wishes and place someone else in control if they can no longer make decisions can ease the emotionally wrenching process . Advance health care and financial planning can help you deal with tough questions about caregiving and legal arrangements and clarify their expectations for handling their illness.

The process can be more kind and benevolent, because your family member feels as if they're making the decision to hand over control, instead of you wrestling control away, says Rajiv Nagaich, an elder care attorney in the Seattle area and a member of the National Academy of Elder Law Attorneys.

If you approach it from the perspective of helping your parents protect their assets, that could encourage them to help make decisions now, Nagaich says. It often doesn't happen early enough.

Your family member needs to have the legal capacity, in terms of decision-making and judgment, to sign official documents. And even if someone has just been diagnosed with Alzheimer's, the disease may already be affecting their decision-making abilities.

In addition to wills, these important legal and financial documents can help you avoid emotionally draining and costly court battles.

  • Durable Power of Attorney for Health Care: Authorizes an individual to make health decisions on behalf of the person with Alzheimer's. The decisions could relate to treatments, health care providers and hospitals, life support, and organ donations. The designated person also can decide whether the family member will die at home or in a facility, and will have access to medical records.
  • Durable Power of Attorney for Finances: Designates a person and gives them the authority to make legal/financial decisions on behalf of the person with Alzheimer's.
  • Living Trust: Designates a trustee, who has the authority to hold and distribute property and funds for the person with Alzheimer's. A living trust can provide a detailed plan for disposing of a wide range of property, avoid the expense and delay of probate, and set a plan to distribute property after the last beneficiary dies.

In the power of attorney process, an attorney will meet with your family member and ask them who they will trust, should they become incapacitated, Nagaich says.

He recommends that if a parent trusts their children and are willing to put their financial future in their hands, they should give them immediate power of attorney, instead of waiting when it might become a battle for control. That way, any additional suspicion about motives as the disease progresses could be reduced.

In addition, if there are multiple children, one can manage power of attorney for health care and the other for finances. Having power of attorney is a more conciliatory move than having to ask the court to declare your family member legally incompetent and appoint you guardian, Nagaich says.

When a parent won't give up control

But some parents may be unwilling to have discussions about the future, and in those cases, courts often have to intervene as part of the guardianship process. The court will examine the person's ability to make proper decisions about his or her care. An Alzheimer's or dementia diagnosis by itself is not an indication of incompetence, according to the Alzheimer's Association, a non-profit organization based in Chicago.

As soon as someone files guardianship in most states, the courts require that the parent be notified. "When dad gets that letter, here is what dad is reading, ‘Your son thinks you're nuts.' That is the reality," Nagaich says. "The wheels start coming off the wagon."

Your parent may feel like the children are ganging up and want to take their money. The length of the guardianship process depends on how much the parent fights. If everyone is cooperative, it can be as quick as 60 days; if not, Nagaich says it can take 12 to 18 months.

As a result, Nagaich suggests that if you need to enter into this process, ask a geriatric care manager or doctor to file the petition that states your parent is in imminent danger.

Communicating early and getting the legal documents in place before it gets to this point can help you seem less like an opponent as your parents' disease progress.

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3 Comments

I find no rights for the caregiver when the spouse files for divorce. Even with legal documents (Durable Power of Attorney), once a person files for divorce (actually the attorney wanting to get divorce fees), the other person is left without a leg to stand on. My husband, 72, diabetic type 1 53 yrs. with 5 medically recorded strokes and blood clot in brain, probably with vascualr dementia, filed for divorce and nothing I can do legally to protect myself. And on top of that the judge is bias against women in his rulings, actually goes to sleep on the bench, and rules for his attorney friends. There is no justice - especally in Alabama. Thing is, everyone knows my husband has many major medical problems and his condition and I can't find anyone to defend my rights to protect myself and try and keep what little assets I have. I am losing my home to a person that cannot take care of himself alone.
My brother has p.o.a. but never take my mom to Dr. He has all her money keeps her check book only gives her 100.a month to buy food I have to buy any thing she needs I need to know what to do.
WHAT RIGHTS DO BIOLOGICAL CHILDREN HAVE FOR THEIR BIOLOGICAL FATHER OVER THEIR STEP MOTHER AND HER CHILDREN.