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Guardianship for Mom
Old 03-06-2019, 04:46 AM   #1
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Guardianship for Mom

Mom was diagnosed with vascular dementia about 2 years ago. We always had caregivers hired to come help her in her home of 50 years, however last year her dementia and health got bad enough to move her to an assisted living (memory care) facility. Unfortunately, her dementia has continued to progress and she has become overly aggressive at times. I've had Durable Power of Attorney for years and my brother has Medical Power of Attorney.

Due to some issues occurring when she had to be admitted to a Behavioral Hospital, we decided that we needed to have Guardianship on mom. Frankly, I thought the DPOA had us covered ... but it did not. We have started the process to get Guardianship (Financial and Health) for her as she is truly unable to make any decisions on her own.

Question: Once we obtain Guardianship, does that make us personally liable both financially and in case of being sued?
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Old 03-06-2019, 08:23 AM   #2
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If you have an Eldercare attorney assisting on the petition for Guardianship / Conservatorship, the question is a good one to ask the attorney. The degree to which you have any or some liability may vary from state to state.
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Old 03-06-2019, 09:06 AM   #3
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Originally Posted by Col. Klink View Post
If you have an Eldercare attorney assisting on the petition for Guardianship / Conservatorship, the question is a good one to ask the attorney. The degree to which you have any or some liability may vary from state to state.
Agree, consult with an attorney. My guess is that you would be liable for things that the person does if you are found to be negligent in your care of that person. For example, if you were in charge of your mother and you left her home alone and she burned down the condo complex, you might be liable for that because you should not have left her along. In a behavioral health situation, I canít see how you could be responsible for her actions. Youíve done all you could know to do.

DWís mother is sitting with us right now on the same path as you describe. Iím hopeful she doesnít end up aggressive. Weíre trying to keep her with us as long as possible. Good luck with your situation.
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Old 03-06-2019, 10:36 AM   #4
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Originally Posted by Steelart99 View Post
Mom was diagnosed with vascular dementia about 2 years ago. We always had caregivers hired to come help her in her home of 50 years, however last year her dementia and health got bad enough to move her to an assisted living (memory care) facility. Unfortunately, her dementia has continued to progress and she has become overly aggressive at times. I've had Durable Power of Attorney for years and my brother has Medical Power of Attorney.

Due to some issues occurring when she had to be admitted to a Behavioral Hospital, we decided that we needed to have Guardianship on mom. Frankly, I thought the DPOA had us covered ... but it did not. We have started the process to get Guardianship (Financial and Health) for her as she is truly unable to make any decisions on her own.

Question: Once we obtain Guardianship, does that make us personally liable both financially and in case of being sued?
Obviously, consult eldercare counsel rather than SGOTI. By liable of being sued, do you mean by her or by third-parties that she might injure? In any event, I suspect the answer is no. Her finances are separate from yours... be sure to keep that in mind if a facility insists that you sign a contract with them that includes a personal responsibility clause... just say no and move on if you need to.

I've been a court-appointed guardian twice and that never crossed my mind.
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Old 03-06-2019, 10:48 AM   #5
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The finance part I understood to be as you state above. Everything is kept separate well managed there. And we do have her in the best care we could find / afford. It was the issue of her hurting someone else, or more unlikely, damaging someone else's property. We are pursuing engaging an Elder Care Lawyer.
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Old 03-06-2019, 12:18 PM   #6
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Why do you think DPOA doesn't cover? Is there something specific? With my father, an elder atty told us we do not want a guardian assigned to Dad because it requires all records of finances and medical to be scrutinized by the court system on a regular basis. The atty told us only if there's a conflict with family over care or finances would they advice going into a guardianship.

Before you do, know exactly what privacy you are going to be giving up as well as your loved one.


****EDIT****
I just spoke with my next door neighbor who is an elder law atty. I asked her about this topic; guardianship. She said, " If a person is still able to understand legal documents, signing a power of attorney is almost always preferable to guardianship."


Here's a pretty good description on whether a POA or guardianship is warranted to take control of a loved one's finances and medical decisions;
http://elder-clinic.law.wfu.edu/file...b-version1.pdf
The crux of the link confirm's my neighbor's comment;
Quote:
If a person is still able to understand legal documents, signing a power of attorney may be preferable to guardianship. With a power of attorney, the person chooses who will handle his or her affairs, instead of having the court make this choice. It is handled out of court, and there is no court supervision
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Old 03-06-2019, 01:55 PM   #7
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****EDIT****
I just spoke with my next door neighbor who is an elder law atty. I asked her about this topic; guardianship. She said, " If a person is still able to understand legal documents, signing a power of attorney is almost always preferable to guardianship."


Here's a pretty good description on whether a POA or guardianship is warranted to take control of a loved one's finances and medical decisions;
http://elder-clinic.law.wfu.edu/file...b-version1.pdf
The crux of the link confirm's my neighbor's comment;
That was a great article and will definitely make us review our options; Thanks! We've had medical and financial DPOA for several years. Mom was smart enough to have these done long before they were needed.

What drove us to start looking into Guardianship is a result of mom being sent to a Behavioral Hospital due to her randomly occurring aggressive behavior. We found out that the 'hospital' by default gets a 72 hour Guardianship via the court and proceeded to medicate and treat mom without our consent nor informing us. They also had extremely restrictive visitation. Her condition deteriorated horribly until we got her moved out of there to regular hospital. We were largely kept in ignorance of what was going on. Our 'hope' was that having a Guardianship would keep something like this from ever happening again.

From a financial standpoint, the Guardianship gives me permission to sign mom's tax returns which can not be done with just a DPOA.
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Old 03-06-2019, 02:31 PM   #8
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What drove us to start looking into Guardianship is a result of mom being sent to a Behavioral Hospital due to her randomly occurring aggressive behavior. We found out that the 'hospital' by default gets a 72 hour Guardianship via the court and proceeded to medicate and treat mom without our consent nor informing us. They also had extremely restrictive visitation. Her condition deteriorated horribly until we got her moved out of there to regular hospital. We were largely kept in ignorance of what was going on. Our 'hope' was that having a Guardianship would keep something like this from ever happening again.

From a financial standpoint, the Guardianship gives me permission to sign mom's tax returns which can not be done with just a DPOA.

Last first; filed Dad's taxes online using H&R block with just the DPOA. NO problem.


Get the Medical power of attorney abstract placed in her medical record. Tell every time you are taking care of her medical needs that you have the abstract on record in her file. I have a 'strong' personality and no one has ever not allowed me to make the calls for Dad's medical decisions since I've been exercising my POA and it's in his medical record. I also keep a copy, along with a list of all his meds, in a small folder I take every time I take him to a doctor. This includes dentist BTW. Don't forget dentist.
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Old 03-06-2019, 03:26 PM   #9
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I had the financial and medical POA’S for my friend and had no problem conducting all her business. I had it on file in her record and took it to appointments.
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Old 03-06-2019, 03:47 PM   #10
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That was a great article and will definitely make us review our options; Thanks! We've had medical and financial DPOA for several years. Mom was smart enough to have these done long before they were needed.

What drove us to start looking into Guardianship is a result of mom being sent to a Behavioral Hospital due to her randomly occurring aggressive behavior. We found out that the 'hospital' by default gets a 72 hour Guardianship via the court and proceeded to medicate and treat mom without our consent nor informing us. They also had extremely restrictive visitation. Her condition deteriorated horribly until we got her moved out of there to regular hospital. We were largely kept in ignorance of what was going on. Our 'hope' was that having a Guardianship would keep something like this from ever happening again.

From a financial standpoint, the Guardianship gives me permission to sign mom's tax returns which can not be done with just a DPOA.
I agree with skipro here on guardianship vs the POA's. The durable POA should be enough to manage all her financial affairs, including taxes. Guardianship is different and subject to much more oversight. Are you sure it's worth it?

Will awarding you guardianship prevent the behavioral hospital from imposing its own temporary guardianship if she has to return? If you have medical POA and they refused to involve you in her care or even inform you, it doesn't sound as if your guardianship will change that.
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Old 03-06-2019, 05:08 PM   #11
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The more I see here and more info I find online, the more it seems like the Medical DPOA should have handled the hospital issue. My brother was handling that but may not have realized he needed to file that DPOA upon entering the facility. He and I will discuss this and track down that answer.

I was told by mom's CPA (doing her taxes for 15+ years) that I had to have mom declared 'incompetent' (2 doctors) in order for me to be able to sign her taxes. I've been preparing all her tax documents for several years. I had assumed that meant a Financial Guardianship. I've been know to have been wrong ... a few times ...

I guess I need to track down all the rules for the state she lives in now.

Thanks all!
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Old 03-06-2019, 05:26 PM   #12
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Read everything before you sign it. My Dad was going into a nursing home and the home sent me a contract to sign that stated that I would be personally liable for all the costs and expenses. I did not sign it!
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Guardianship for Mom
Old 03-06-2019, 06:24 PM   #13
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Guardianship for Mom

Thatís a tough situation. My mom also had vascular dementia and behavioral issues. The geriatric psychiatrist at her memory care unit tried a bunch of medications until he found the right balance and something that worked. And we eventually did have to move her to a locked dementia unit in a skilled nursing facility that was a better fit later on. Maybe you need to look for a facility that can address her needs now. We only had medical and financial POA, no guardianship. Sounds like you need to get 2 medical professionals to declare her incompetent before the POA becomes active.
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