How is guardianship selected and determined?

Thanks SunFlower. I tried to contact an attorney. He was very understanding but suggested that a bid for guardianship was my only alternative at this point. He said that I would need at the least 30 K. My brother could do the same but since he has the POA he could use my father's funds to finance his bid for guardianship. I would have to use my personal family's finances. If I win, it would be rienbursed by my dad's estate which is not very large. I may also loose if it can not be proven that my brother is not honest. Like I said, my parents cannot see the light. I only
can pray that he will do good and be honest to his dad who trusts and believes in him so. His last wish to me was that I take care of my mom and him and try my best to not let him end up in a nursing home. But unfortunately he made choices that make this task impossible at this point. That really makes it hard for me
as I had wanted to carry out his wishes. However, he did not listen to reason and chose not to trust me with his paper work. Why, it may be a cultural thing. The son is always the chosen one in the Asian family.

Sunflow & once-hated are spot-on in their perspectives.

MD's expertise is medical not legal. MD should not be suggesting guardianship and unless you are MPOA or on the elder's HIPPA form, they should not even be discussing their care w/you. If all this gets nasty, your brother can use this against your and the MD unless you are MPOA or have HIPPA release. Be cautious!

If you are providing caregiving for your parents, you have the ability to ask to be paid via a "personal services contract" from your parents assets. Elder care attorneys do this routinely and it needs to be done by an attorney so that it can pass Medicaid review. You get a 1099 on it and pay taxes. Unless you do this, either your time is considered normal care & concern with no reimburseable monetary value (as it was for your 25 years of doing this) OR if you get paid without a contract can be viewed as a ineligible transfer of assets if they should apply for Medicaid within the next 5 years (2018).You kinda have to decide what to do from this point forward.

Your brother could be a total snake-oil salesman OR it could be that he is actively divesting their assets so that when they eventually will need a NH they will be able to apply for Medicaid without a spend-down period or a transfer penalty. If they are able to do all their ADL's as you describe, they probably don't even come close to qualifying for Medicaid under the required medical review. But one good fall can change that. It could be that brother is being proactive for Medicaid.

Could it be that your brother is actually spending "your inheritance" now by paying for the caregivers and whatever else expenses your parents have? Could the $ be moving around so that it goes into a trust and therefore not a Medicaid asset? If your parents still have a home and they go into a NH and apply for Medicaid, the state via the MERP program places a claim or lien on the property so your brother can't "take over his house" as the MERP claim has to be released legally.

Whatever the case, the only way to find out and resolve your issues with all this is legally having an attorney represent you and give you a wider view of what can & cannot be done. It isn't always fair, but, if your parents chose your brother over you, that was and is their decision and as long as he is doing a reasonable job at it then his action as DPOA trumps whatever you or others think. If he is commiting fraud or placing them in physical or financial harm, then your attorney can seek to have that changed. But what would likely happen, is that your parents will be made temporary wards of the state till everything is sorted out. If you and your spouse have any issues or other things that could be an issue for guardianship, they could easily become wards of the state permanently. You need an attorney.

I recently have seen blank change in beneficiary forms at my father's house that my brother has brought for him to sign. Probably to delete us out of those funds.
My brother has been very careful not to declare my dad mentally incompacitated though he is very uncapable of making logical decisons and easily manipulated by
my bullying persuasive, car salesman brother. He talks him out of anything and makes up all kinds of reasons why he needs to sign documents for "his own good.
The old man unfortunately believes every breath he speaks and feels his decisons
and actions are sound and for everyone's benefit. Little does he know that he is stealing everyone's inheritance and leading my father who is still physically capable of staying at home with a caregiver, right into a nursing facility so he can take over his house. It's sad when someone trusts his son so much and this is done to him. It is sad to watch someone that you admired as a strong figure in your life treated and tricked with so much disrespect. Especially when you have
tried your darndest to warn them and only got resistance, cursing, and unappreciative comments in return. You have cared for these elders for the last
25 years while your brother was never there for them. But he has convinced them
all that 'IT IS JUST THE PAST AND DOESN'T COUNT'. And you are
"Too Emmotional" to make logical decisions for the family. Remember you have
a masters degree, he has a high school education. You are 10 years older and
are a profressional. He is a salesman. Yet, he is his fathers choice and you can't do nothing about the destruction. It is pain ful to watch and frustrating to feel you can't do anything about it unless you spend about 30 K of your family's savings to
hopefully win a case of guardianship, no guarantees because he holds all the cards.

In my experience, once you have guardianship, at least here in Texas, you have to submit expenses monthly to the judge for permission to pay them out of the person's money that you have control over, so there is someone watching to make sure you don't scam or use their money unwisely or to only your benefit. It would probably be to your parent's benefit for someone to have guardianship, because then the court is overlooking the financial decisions made for them.

eddieboyangel,

I know that guardianships/conservatorships vary somewhat state to state. Like reindeermama, I am in Texas and the total cost of the guardianship was just under $5,000. The total cost of the guardianship, except for the required insurance bond, was paid for out of his parents' funds.

My husband went the guardianship route to attempt to protect himself from his siblings. They had been threatening my FIL's sister who held FIL's POA with lawsuits.

There comes a point when a person suffering from dementia can't make their own decisions. It is nice to be able to accommodate their preferences as long as possible. At some point a responsible party has to step in and take over the decision making. Perhaps your parents' geriatric doctor feels that now is that time.

Your brother will have a judge to answer to for all the decisions he makes. In many states the revocable trust can only be adjusted with specific permission from the court.

Some of my husband's siblings have had a hard time understanding that funds are not dispersed to heirs at this time. Such events happen after someone passes, in some wills, that requires the passing of both the married parties. The costs of "acts of caring" are not paid for out of their funds.

Aunt who lived with my mom and dad who left for a foster home obtaining a POA and, surrendering all her 4250,00 OF insurance poliies and never letting me see the trust that I know I was named as one of the main bene ficiareies.

Regarding above, if you were indeed named a beneficiary; I would think you would have to be contacted for distribution or your brother would have to have proved to them that the beneficiary or beneficiaries no longer existed...If you are certain of this; you may want to contact your aunt's insurance company to confirm or secure a lawyer to check into this. If there is fraud or your brother mishandled, this would be grounds to contest any guardianship for your parents I would think.

I start with having private conversation with parents geriatric doctor -- they could be misinformed or loosely used the term "guardianship" meaning something else. I'd also ask dr why they suggested this; do they think current level of care isn't enough. Once that is clarified; then you may want to schedule a family mtg including your parents, brother and doctor to discuss recommendations (this will give all level headed transparency and evaluation of situation). If you aren't satisfied with outcome; seek an experienced eldercare lawyer for further advisement. I hate to see two siblings at odds with these decisions. It might not be personal; your parents may just have been "old school" and made assignments to your brother "because he's the man and therefore should handle finances" and youre the daughter "so you should assume caretaking role". Regardless, your brother should be more transparent with you over the family finances.

My brother already has a POA and has control of the finances and all my dad's blessings and favor, why then did the geriatrics doctor tell me that she recommended tohim to get guardianship for my mom and him. They now have him and my mom both at home with a care provider Mon. to Friday. Both have dementia but are in overall good health except for dementia and arthritis. Why would he feel the need to extend his powers to a guardianship. Right now, his
secret dealings with my father's naive "trust" on the families finances have not
been monitored or watched. Decisions and accounting are all controlled by him.
If he applies for guardianship, will he be able to use my dad's finances with the POA to pay for the attorney? And will he be able to force them to go to a nursing home with this guardianship conservitorship? Because as it stands now, they prefer to live at home with a care provider since they can still walk and eat, bathe, and bathroom independently. I am suspicious of his intentions because he holds all the cards and keeps these things away from me. I don't mind him taking charge of the family finances but I am suspicious that nothing is ever revealed to me about what is going on. He has done the same with my Aunt who lived with my mom and dad who left for a foster home obtaining a POA and, surrendering all her 4250,00 OF insurance poliies and never letting me see the trust that I know I was named as one of the main bene ficiareies. I respect my parent's right's to chhose him as
the POA but I don't trust him because he chooses to do everything without ever
sharing any information or documents with me or having me participate in
any decisions. I have no say, I don't know anything, I don't even seem to exist as part of the family. He just wants me to exist in a care provider capacity, only never financing my participation.

I do not know where you are located but a guardianship down here usually cost about $5000.
Usually the court hears the case, someone to represent your parents is appointed.
Another lawyer usually talks to them and then will talk to the person who wants guardianship. This is done so they are not railroaded into a guardianship they may not want. If the other lawyer thinks the guardian is fine then this is what they will report to the court, and well if not, then the fight begins and when this happens this
is what usually takes so long for a guardianship to be done. This is why it is important to get a lawyer who understands and is a expert in this. I am in Texas.
It may be different depending on where you live.

Eddie - is there a compelling reason for doing a guardianship rather than a DPOA? Reindeer has is correct in that guardianship is filed as a court document by the person who wants to be guardian. This is usually done in probate court and you really, really should have an attorney who does this type of work represent you. Guardianship usually comes into play when the person is not capable of doing a DPOA or is seriously fighting doing what is best for them. The legal for doing DPOA, MPOA, wills or codicil to an old will usually will run just a few hundred $ while guardianship can easily cost in the thousands of dollars (I'd guess 10K - 20K) and requires mandated reports to the court by the guardian for their entire lifetime.

If this is kinda about why your parents chose your sibling over you to be DPOA, that is really their decision as long as they were competent at the time to do so and as long as whomever is DPOA is handling their affairs within reason, then it's hard to change the DPOA and it's abilities to you and a guardianship. But if you have the time and the money, it can be done. About the trust, is this just a property trust
(perhaps a life estate, which kinda remains static till death) or is this an asset trust? If it's an asset trust, I'd call and set up an appointment with whomever manages the trust to discuss the trusts source of funding and how the successor or grantor of the trust is set up. What I've seen happen is that a trust that was set up decades ago has had a total butt-kicking loss in it's source of funding
(a trust is it's own entity and has to be maintained and there needs to be $ to do that) and the source of funding was stocks that have not performed to expectations and the trust has used it's base $ to maintain the trust and eventually it could become unfunded. If it's a revocable trust, often the trust will have to be fundamentally changed to keep it alive. If your sibling has done a change with the trust, it could be that it had to happen. Whatever the case you should speak to whomever manages the trust, they aren't easy to override or dissolve as they are their own entity or legal being. A trust is not like a bank account which you can open or close at will. Good luck.

My elder care lawyer told me it is usually the child that submits the claim for guardianship. Usually you have to get a doctor's statement for court that the parent or parents are unable to handle their own care due to their incapacity. Down here it usually only takes a couple of months if you have an attorney who knows what he is doing. An emergency guardianship can be obtained in about
two weeks.
Since you have these questions and are concerned I would look for an elder care attorney and schedule a consultation.
National Academy of Elder Care Attorneys
They are non-profit and will provide a location finder for an attorney for you.