Though we have a medical POA and DPOA, in our LO's state she has full physical autonomy, so a guardianship is required for anything beyond financial. We are pursuing guardianship. What will the court visitor visit be like with our LO and us?
As Alva said, after you win ur case, you may be able to reimburse yourselves from Moms estate for the cost of guardianship because the guardianship is for her. Medicaid allows this in the 5 yr look back.
AinSeattle: Thank you for your update below my response. We always appreciate on Forum when an OP returns to update us. I am glad you are finished with the court process. I hope you will update us when the judge delivers the decision. I wish you luck.
Do you have letters from MD saying she is mentally incapacitated? In that case a POA should be adequate for placement, at least in California it is. BUT the person must be mentally incapacitated with two MDs saying so and with one of them being neuro-psyc. I was POA for my brother. I would never have needed to be his guardian, as it was stipulated the the POA was to act for him in his behalf as directed by him, unless he was incapacitated due to incompetency attested to by MDs. So I am still not understanding why you require the husband to have a guadianship. (And I guess what I am saying is if SHE believes she is competent she will be provided an attorney to fight in court. And she may well WIN in court even if she is only minimally incompetent unless you have a whole battery of docs to say she is in danger for herself due to mental incapacity. And if she WINS in court, which she is likely to if she can make a case at all for herself, then yes, you would pay for the court costs.) Generally when guardianship is done the person requesting to be guardian pays, but if the guardianship is "won" then the estate of the person who the guardianship is FOR will pay for it. It is not so much you or your Dad who will be questioned her, but the attorney for the Mom if she doesn't wish to HAVE a guardian. If she can prove she is competent enough not to need a guardian she will win because as I said, the law is loathe to take a citizen's rights from them unless that citizen is completely incompetent to act safely in his or her own interests. And boy, that is a broad range they allow. Wishing you the best. Just answer the questions and hope it goes for the best for the safety and welfare of the one you are wishing to protect. Laws vary a bit state by state, but I am surprised here that with a diagnosis of incompetent due to LBD that you are needing to go beyond a POA. Really surprised. Sure hope you update us on this one. Wishing you best of luck.
I will try to simplify the beliefs because it can be difficult to try and make sense of her serious LBD delusions and the Capgras Syndrome implications.
It is my DH petitioning guardianship for my widowed MIL as ward. She is delusional believing her son is "missing". He was replaced --the Capgras Syndrome -- by someone that has the exact same name and life as her son. In her view, I'm in the conspiracy with the imposter. Now she insists our adult child is the imposter's child -- not her bloodline. To her, she "has no more family" because as family "you wouldn't be out to get me" and "you want to bury me"! The POA should have worked but instead, we are having to seek guardianship while trying to keep her safe AND from physically seeing us.
We also were VERY surprised (and very frustrated after finding this out) that the all inclusive DPOA/MPOA was financial only and a guardianship was required. It is for PAS/Death With Dignity to be available in her state. It is what it is and legally required so we are doing what we have to do to follow the law. As of today, it is in the hands of the judge to decide what comes next.
SHE is being forced into it, you mean. You are CHOOSING to be guardians? Is that correct. No one is forced to be a guardian and it is terribly difficult to do, so I would not use that wording whatever you do. What to expect? Hard to say. Everyone is different and every state is different and every court is different. I would be ready to show all work you have done for POA, all the files you have, and etc. The most important part of the interview is when your LO is interviewed. The court is very loathe to take any citizens powers from them. They must be unable to decide on their own indeed to be judged incompetent enough to allow others to make all the decisions in their lives. You see the difference, am I right? The POA allows you to act FOR her AS SHE WISHES YOU TO. The guardianship means she loses her own powers and you act for her PERIOD. This is taking her rights as a citizen away from her. You have to be ready to prove you have a long and loving history with her of care and love, and are prepared to know ALL that being a guardian includes. That is meticulous record keeping of every penny in and out, of her best interest for the best care that can be provided and etc. I would ask you this. Is she utterly incompetent in the judgement of two MDs, one being a neuro psyc, to act in her own best interests? If not, you will be unlikely to get guardianship. Are there those who know her and know you and will testify for you? Have a list ready. Answer every single question honestly. If you do not understand a question ask it be repeated or asked another way. Ask for edification if you don't understand.
For answers, yes, DH is CHOOSING to become her guardian, but he is forced into the guardianship court PROCESS as the MPOA and DPOA is useless beyond a financial decision for our LO. MPOA/DPOA (acting in her best interest) was our way to avoid the court process (stripping all her rights) to discover a guardianship judgement can't be avoided. With true irony, ONLY a guardianship hearing is necessary that we, not her, has to pay for.
As taken from the website, 'In [LO state], a power of attorney is durable, which means that it continues to be effective if you become financially incapable.' It specifically calls out the term financially. That is the limit of DPOA in our LO's state.
Without going through the court for guardianship, there is no way to "physically require" an incapacitated LO to comply. In other words, even incapacitated by all the definitions of a MPOA/DPOA, without an active guardianship in place, if a person doesn't agree to move or does move and then physically finds a way to leave PC/MC/AL/NH, neither the facility staff, nor first responders, nor having a POA can physically stop them -- can't even force the person to return. It is considered by the facility as self-release under their right to do so.
So far, everyone necessary (attorney, medical, witnesses, local law enforcement) are on board with a forced move -- except her. Since she is physically capable of still performing some ADL's (she believes she is still perfectly capable) but mentally incapacitated (LBD plus Capgras), she refuses to budge.
So I am still not understanding why you require the husband to have a guadianship.
(And I guess what I am saying is if SHE believes she is competent she will be provided an attorney to fight in court. And she may well WIN in court even if she is only minimally incompetent unless you have a whole battery of docs to say she is in danger for herself due to mental incapacity. And if she WINS in court, which she is likely to if she can make a case at all for herself, then yes, you would pay for the court costs.)
Generally when guardianship is done the person requesting to be guardian pays, but if the guardianship is "won" then the estate of the person who the guardianship is FOR will pay for it.
It is not so much you or your Dad who will be questioned her, but the attorney for the Mom if she doesn't wish to HAVE a guardian. If she can prove she is competent enough not to need a guardian she will win because as I said, the law is loathe to take a citizen's rights from them unless that citizen is completely incompetent to act safely in his or her own interests. And boy, that is a broad range they allow.
Wishing you the best. Just answer the questions and hope it goes for the best for the safety and welfare of the one you are wishing to protect. Laws vary a bit state by state, but I am surprised here that with a diagnosis of incompetent due to LBD that you are needing to go beyond a POA. Really surprised.
Sure hope you update us on this one. Wishing you best of luck.
It is my DH petitioning guardianship for my widowed MIL as ward. She is delusional believing her son is "missing". He was replaced --the Capgras Syndrome -- by someone that has the exact same name and life as her son. In her view, I'm in the conspiracy with the imposter. Now she insists our adult child is the imposter's child -- not her bloodline. To her, she "has no more family" because as family "you wouldn't be out to get me" and "you want to bury me"! The POA should have worked but instead, we are having to seek guardianship while trying to keep her safe AND from physically seeing us.
We also were VERY surprised (and very frustrated after finding this out) that the all inclusive DPOA/MPOA was financial only and a guardianship was required. It is for PAS/Death With Dignity to be available in her state. It is what it is and legally required so we are doing what we have to do to follow the law. As of today, it is in the hands of the judge to decide what comes next.
Is that correct. No one is forced to be a guardian and it is terribly difficult to do, so I would not use that wording whatever you do.
What to expect? Hard to say. Everyone is different and every state is different and every court is different. I would be ready to show all work you have done for POA, all the files you have, and etc. The most important part of the interview is when your LO is interviewed. The court is very loathe to take any citizens powers from them. They must be unable to decide on their own indeed to be judged incompetent enough to allow others to make all the decisions in their lives.
You see the difference, am I right? The POA allows you to act FOR her AS SHE WISHES YOU TO. The guardianship means she loses her own powers and you act for her PERIOD. This is taking her rights as a citizen away from her. You have to be ready to prove you have a long and loving history with her of care and love, and are prepared to know ALL that being a guardian includes. That is meticulous record keeping of every penny in and out, of her best interest for the best care that can be provided and etc.
I would ask you this. Is she utterly incompetent in the judgement of two MDs, one being a neuro psyc, to act in her own best interests? If not, you will be unlikely to get guardianship. Are there those who know her and know you and will testify for you? Have a list ready.
Answer every single question honestly. If you do not understand a question ask it be repeated or asked another way. Ask for edification if you don't understand.
For answers, yes, DH is CHOOSING to become her guardian, but he is forced into the guardianship court PROCESS as the MPOA and DPOA is useless beyond a financial decision for our LO. MPOA/DPOA (acting in her best interest) was our way to avoid the court process (stripping all her rights) to discover a guardianship judgement can't be avoided. With true irony, ONLY a guardianship hearing is necessary that we, not her, has to pay for.
As taken from the website, 'In [LO state], a power of attorney is durable, which means that it continues to be effective if you become financially incapable.' It specifically calls out the term financially. That is the limit of DPOA in our LO's state.
Without going through the court for guardianship, there is no way to "physically require" an incapacitated LO to comply. In other words, even incapacitated by all the definitions of a MPOA/DPOA, without an active guardianship in place, if a person doesn't agree to move or does move and then physically finds a way to leave PC/MC/AL/NH, neither the facility staff, nor first responders, nor having a POA can physically stop them -- can't even force the person to return. It is considered by the facility as self-release under their right to do so.
So far, everyone necessary (attorney, medical, witnesses, local law enforcement) are on board with a forced move -- except her. Since she is physically capable of still performing some ADL's (she believes she is still perfectly capable) but mentally incapacitated (LBD plus Capgras), she refuses to budge.