Guardianship liablity but no control over the ward

[PatrickA5]

Dad will not accept a home care giver other than the one that is exploiting him and we are trying to figure out how to remove. Had the current HHA not poisoned the well, Dad probably could have done quite well with just home care.

My 97 year old dad would "hide" from his once-a-month house cleaner. Any caregiver would quickly get fired. He ran through pharmacists routinely because they were all out to get him.

Still, he was quite competent on most financial matters, kept his house up, remember doctor appointments, etc. But, he absolutely refused to even consider assisted living. I told him "Dad, there will be one last fall where you don't get up and you won't have a choice". He was fine with that. I found him probably 12 hours after that last fall. He lasted another 10 days in the hospital and a couple of days in the nursing home. I always felt he'd have been so much happier the last few years in an assisted living arrangement, but he wouldn't have it and I couldn't force him to go.

 

[bmcgonig]

I lied to my father all the time after his dementia developed. Contradicting his misconceptions was pointless and argumentative. Plus, I think he could remember the mood of our conversations over time, if not the content. It worked out a lot better if he wasn't anticipating an argument from me.

+1

My mom definitely remembers the mood of conversations but not the content. She seems to remember feelings. And yes.. Lying is recommended.

 

[pb4uski]

.... The concern is being charged with neglect (or even just having to explain it to the judge during a care review) if we have responsibility for his care (guardianship) but are unable to provide that care because he lives alone and doesn't manage his meds, gets lost in his trailer park, falls, eats spoiled food, etc (or falls off a ladder when he shouldn't be walking without a walker).

I understand the concern, but if you have responsibility for his care as his court-appointed guardian then you have the authority to decide where he lives, even if he doesn't like the decision... so the problem isn't the decision but trying to find a way to communicate it to him that results in the least resistance. But at the end of the day if you need to you just bring him there... and if you need to deceive him to do so then that is unfortunate and might poison the relationship for a while but the greater good is that he is safe.

And yes... I know this is easier said than done... tough love is tough.

Probably won't work but after the court proceeding you might have is court-appointed lawyer explain that all these people who do this for a living looked at his situation and decided that someone needed to be appointed to make decisions for him and the judge agreed and appointed you as his guardian... for some reason that generation sometimes seems to accept it better if a judge says it is so.

 

[ivinsfan]

I understand the concern, but if you have responsibility for his care as his court-appointed guardian then you have the authority to decide where he lives, even if he doesn't like the decision... so the problem isn't the decision but trying to find a way to communicate it to him that results in the least resistance. But at the end of the day if you need to you just bring him there... and if you need to deceive him to do so then that is unfortunate and might poison the relationship for a while but the greater good is that he is safe.

And yes... I know this is easier said than done... tough love is tough.

And if course a truly resistant person can get kicked out of a living facility.

 

[Scratchy]

I'm in the initial stages of filing a petition to have my 85yo dad declared incompetent and have a conservator and a guardian appointed.
.......

Any ideas here?

Ask the court to appoint a professional conservator/guardian. They will still face the difficulties actually getting your father to cooperate but it will be their problem. Perhaps they will be able to handle it better, or your father will be more accepting with these decisions coming from a third party.

Perhaps this arrangement may ultimately enable you to have a better relationship with him.

It will be more expensive for his estate but that may be the best option.

 

[pb4uski]

^^^ Good idea given the situation.

 

[Teacher Terry]

I would get control of the finances and then quit paying the caregiver. Tell your dad it’s either a different caregiver or a home. Facing that choice should make it easier. Even though my friend had dementia and couldn’t care for herself she went downhill within a month after going into a home. The neurologist said it was depression not the dementia causing it. She was miserable until dying 18 months later. You aren’t going to be charged with neglect of your dad because he is a adult making his own choices. I told my kids unless I have dementia don’t ever try to make me safe. I want to live like my mom. Thankfully all 3 of us kids agreed. It was definitely more work for us kids but well worth it. My kids totally understand. Being safe is highly overrated.

 

[pb4uski]

.... The concern is being charged with neglect (or even just having to explain it to the judge during a care review) if we have responsibility for his care (guardianship) but are unable to provide that care because he lives alone and doesn't manage his meds, gets lost in his trailer park, falls, eats spoiled food, etc (or falls off a ladder when he shouldn't be walking without a walker).

....You aren’t going to be charged with neglect of your dad because he is a adult making his own choices. I told my kids unless I have dementia don’t ever try to make me safe. I want to live like my mom. Thankfully all 3 of us kids agreed. It was definitely more work for us kids but well worth it. My kids totally understand. Being safe is highly overrated.

So TT, you're a-ok with laying back and not intervening when the old guy doesn't manage his meds, gets lost in his trailer park, eats spoiled food, gets on ladders, etc?

 

[ncbill]

Dad will not accept a home care giver other than the one that is exploiting him and we are trying to figure out how to remove. Had the current HHA not poisoned the well, Dad probably could have done quite well with just home care.

As others have said once you're guardian you've got full reign to stop paying the current caregiver & tell dad it's a new caregiver in order to stay in his home...or a locked ALF.

 

[ivinsfan]

So TT, you're a-ok with laying back and not intervening when the old guy doesn't manage his meds, gets lost in his trailer park, eats spoiled food, gets on ladders, etc?

How do you intervene that's the hard question. You don't have to be OK with something if the reality is you can't do anything to change it. The OP has had a hard road with this parent andi is looking for an answer. Sometimes there is no good answer.

 

[ivinsfan]

Have you ever dealt with this issue? The new replacement aide comes and can't enter because they are locked out. You can't kidnap someone and transport them to a locked care unit. Nothing about the entire process is easy or stressfree.

 

[pb4uski]

.... You can't kidnap someone and transport them to a locked care unit. Nothing about the entire process is easy or stressfree.

I agree on the last part that the process is not easy or stressfree but I think technically if you are guardian you can "kidnap" someone and transport them to a locked care unit if you have no other viable options to keep them safe... of course, that would be a last resort. Just like as a parent you could do that with a child if the situation warranted. It is no different. In guardianship, society... through the judicial process... has decided that the ward can no longer make decisions for themselves so they are like a child in that somone makes decisions for them.

That is part of why I think that Scratchy's idea to have the court appoint a professional guardian is a great idea.

 

[ivinsfan]

I agree on the last part that the process is not easy or stressfree but I think technically if you are guardian you can "kidnap" someone and transport them to a locked care unit if you have no other viable options to keep them safe... of course, that would be a last resort. Just like as a parent you could do that with a child if the situation warranted. It is no different. In guardianship, society... through the judicial process... has decided that the ward can no longer make decisions for themselves so they are like a child in that somone makes decisions for them.

That is part of why I think that Scratchy's idea to have the court appoint a professional guardian is a great idea.

What happens if you move them and they are so fricking abusive they get kicked out? Have an extended family member dealing with this now. It's not dementia issue it's an fyou I'll take care of myself. It's ripping the family to pieces.

 

[pb4uski]

I agree there are horrible situations out there and I am thankful that I don't have one in my backyard. But it must be dementia or some sort of mental illness because presumably the court would not appoint a guardian for someone of sound mind.

Again, that is why I like the professional guardian idea.

If they are fricking abusive and get kick out then you may need to go to court and have them committed to a lock-up facility if that is the only way to keep them safe. Or the judge will look them in the eye and tell them if they don't shape up then I'll have you locked up and you don't want to test me on that.

Would you prefer that family just step aside and allow them to live unsafely and ultimately injure themselves or others?

 

[Teacher Terry]

P, I am not for taking people’s freedom away so that they can be safe unless they had dementia. I would never speak to my kids if they tried to do that to me. We each get one life and a right to decide how to live it. We had a governor that retired and lived in Vegas. At 75 he decided to go on the roof in the summer for a reason I can’t remember. His wife begged him not to. He fell off and died. Foolish yes but his decision.

 

[ivinsfan]

I agree there are horrible situations out there and I am thankful that I don't have one in my backyard. But it must be dementia or some sort of mental illness because presumably the court would not appoint a guardian for someone of sound mind.

Again, that is why I like the professional guardian idea.

If they are fricking abusive and get kick out then you may need to go to court and have them committed to a lock-up facility if that is the only way to keep them safe.

Would you prefer that family just step aside and allow them to live unsafely and ultimately injure themselves or others?[

I don't know the answer if you are 95 and are willing to roll the dice knowing you might shorten your life. Isn't that your choice?

 

[MarieIG]

How far away do you and your brother live from your father?

I did not have any legal authority over my father, but had the check book, house keys but lived close by and was there daily. If I did not approve an aide - out they went immediately; and in came a new one - immediately. I also oversaw his health care; medications, etc. I did not pay anything near 18k for a HHA. That is very expensive - for an aide. It was cheaper to hire full time than hourly.

(I suspect the hospitals wrote me down as his representative/ family member if he could not make his own decisions, which by that point he sometimes could not.) When he was hospitalized, I checked his hospital chart daily, and only one time did anyone question my right to do so. My response: YOUR hospital calls ME to approve his surgery and now YOU are telling ME I can't see his chart; I want an administrator and social worker, immediately, as you are jeopardizing my father's care, and I want this documented in writing. Now. (That nonsense did not last long.) I once found an error in his medications, where the dosage of his blood thinner was one-tenth of what it should have been; and insisted on the nurse contacting the doctor immediately.

The predator wants money from your father. Cut access to your father's money off - and he/she is gone. Change the locks, and get one in there of whom you approve.

Make no mistake about it, caring for a parent involves work.

My goals were my father's welfare, his happiness, his comfort, followed by the management of his assets. I watched over him like a mother grizzly bear. I will admit fear of liability did not factor into my actions.

 

[pb4uski]

P, I am not for taking people’s freedom away so that they can be safe unless they had dementia. I would never speak to my kids if they tried to do that to me. We each get one life and a right to decide how to live it. We had a governor that retired and lived in Vegas. At 75 he decided to go on the roof in the summer for a reason I can’t remember. His wife begged him not to. He fell off and died. Foolish yes but his decision.

I hear you and I think we are on the same page but perhaps just not communicating well.

If the former governor was of sound mind there isn't anything you can do. That doesn't sound like a mental illness situation but more of a stupidity situation. And I agree that we can't prevent people of sound mind from doing stupid things even if they are endangering their lives.

However, where a court appoints a guardian it is because after sufficient due diligence the court concludes that the ward isn't able to make decisions for themselves and the court needs to intervene and appoint someone to make decisions for them. It could be dementia or some other sort of mental illness. And in effect, society strips them of some freedoms due to their mental illness, because if they were of sound mind the court would refuse to appoint a guardian.

 

[Another Reader]

I hear you and I think we are on the same page but perhaps just not communicating well.

If the former governor was of sound mind there isn't anything you can do. That doesn't sound like a mental illness situation but more of a stupidity situation. And I agree that we can't prevent people of sound mind from doing stupid things even if they are endangering their lives.

However, where a court appoints a guardian it is because after sufficient due diligence the court concludes that the ward isn't able to make decisions for themselves and the court needs to intervene and appoint someone to make decisions for them. It could be dementia or some other sort of mental illness. And in effect, society strips them of some freedoms due to their mental illness, because if they were of sound mind the court would refuse to appoint a guardian.

The problem with this idea is the guardian. There have been cases of appointed guardians being in cahoots with the care providers. Often they take the expedient action, which may not be in the ward's best interest. The Public Guardian here is limited by choices dictated from outside the office and cannot choose independently. Having a family member be the guardian is generally the better choice.

 

[firemediceric]

I have not read the 3 pages of replies. I barely scanned them but I can comment from the aspect of being a registered professional guardian. From what is written it seems your dad is not able to independently handle the ADL's or Activities of Daily Living. Those activities involve everything from medication management, money management, food preparation, hygiene and so on.

Here in Florida a motion can be presented to the court outlining the ADL's the AIP (alleged incapacitated person) is no longer capable of handling. From there an examining committee of 3 members will be assigned to interview and assess the ward within 15 days and to submit their reports within another 10 days. From that information and any additional testimony, certain rights may or may not be removed from the AIP and delegated to a guardian. If you use the search function here you should find a couple of recent related threads where I listed the various rights which may be delegated.

An appointment of a financial guardian may be made, a guardian of the person could be granted governing just the medical and living decisions of the ward without addressing financial or a plenary guardian may be appointed to whom all of the ward's rights are delegated. Not always is the guardian of the person and the financial guardian the same person.

A guardian of the person will, with the court's consent, place the ward in the "least restrictive" yet secure and safe setting. From what I am reading about this gentleman, I'm inclined to think that would be a secured memory unit. As far as the guardian being financially responsible, won't happen. By benefit of statute a guardian "has no personal liability" when executing a guardian action.

 

[ivinsfan]

I have not read the 3 pages of replies. I barely scanned them but I can comment from the aspect of being a registered professional guardian. From what is written it seems your dad is not able to independently handle the ADL's or Activities of Daily Living. Those activities involve everything from medication management, money management, food preparation, hygiene and so on.

Here in Florida a motion can be presented to the court outlining the ADL's the AIP (alleged incapacitated person) is no longer capable of handling. From there an examining committee of 3 members will be assigned to interview and assess the ward within 15 days and to submit their reports within another 10 days. From that information and any additional testimony, certain rights may or may not be removed from the AIP and delegated to a guardian. If you use the search function here you should find a couple of recent related threads where I listed the various rights which may be delegated.

An appointment of a financial guardian may be made, a guardian of the person could be granted governing just the medical and living decisions of the ward without addressing financial or a plenary guardian may be appointed to whom all of the ward's rights are delegated. Not always is the guardian of the person and the financial guardian the same person.

A guardian of the person will, with the court's consent, place the ward in the "least restrictive" yet secure and safe setting. From what I am reading about this gentleman, I'm inclined to think that would be a secured memory unit. As far as the guardian being financially responsible, won't happen. By benefit of statute a guardian "has no personal liability" when executing a guardian action.

How long does this process actually take, I'm guessing a pretty long time.

 

[firemediceric]

How long does this process actually take, I'm guessing a pretty long time.

Here in Florida an emergency temporary guardianship, if the situation is egregious enough to warrant an ETG, cannot last longer than 90 days without court order. The AIP needs to be adjudicated by the end of that 90 days unless a judge for some reason grants an extension. That would be very unusual. If the AIP is adjudicated incapacitated, the appointed guardian takes over responsibility at that moment.

 

[Spock]

A new turn in the crisis popped up Saturday morning, so as soon as the lawyers get into the office this morning we'll be drafting an emergency guardian/conservator petition.

The plan is for my brother and I to be co-guardians and my self as conservator. Then, at least initially, hire a care/case manager to manage his care on behalf of and at the direction of the guardians. The care manager will probably double the cost of assisted living at least during startup... costs are $135/$150 per hour and from where I sit I see it as being a full time job until the dust settles (IF it settles). One office said it would be 1.5% of assets to be guardian, which sounds comparatively cheap... I suspect that rate only applies if the office is also conservator which is 4% of assets for startup and definitely not cheap.

If things get even worse, we'll move guardianship to a 3rd party. In an information vacuum during the weekend, we guessed that it will be easier to "give away" guardianship to a 3rd party than it would be to re-assume the role when/if Dad ever acquiesces.

Another factor was finding a 3rd party guardian. My lawyer has staff in the office that provides the role, however there are apparently conflict of interest issues if my lawyer is also filing the petition. Another recommended agency has taken 2 weeks to respond to questions and I can't get even ballpark/swag cost estimates from either of them.


The other monkey wrench that is coming up is the issue of "Testamentary Capacity".
You should spend some quality google time on this topic for yourself, but apparently, even if a ward has a guardian and a conservator, with "Testamentary Capacity" a ward can still make changes to will, trusts, POAs, etc. Also a ward can regain control of any assets the ward is able to find. All the ward has to know is roughly what their assets are and roughly who their immediate family is. This can really REALLY complicate managing the finances of the ward.


Depending on which webpage you get your internet law degree from there are phrases such as "ability to resist undue influence", which may or may not be the saving clause in my current situation with the home health aid being on the state Adult Protective Services registry as having already exploited somebody else.

 

[Teacher Terry]

When my dad had a big stroke at 59 my mom was worried what would happen if she died first. She was concerned that a caregiver might marry him to get the house and savings. He had a big enough pension to hire in home care. So she set up a life estate for the house. We lived next door so I would have hired the caregiver and kept a eye on things. Luckily he died before my mom.

 

[ivinsfan]

Spock so sorry that you entire family is going though this ordeal.

Yes it cost extra money to bring in outside help but it's the emotional and anxiety cost that make the ordeal so draining.

All you can do is your best and hopefully a peaceful resolution will be the end result. Nobody wants to spend the last years of a parents life locked in a confrontational situation.

Please keep us informed as least you can vent and ask questions here.