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Guardianship liablity but no control over the ward
Old 02-21-2020, 06:46 AM   #1
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Guardianship liablity but no control over the ward

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. (loooong story... he's attempted to give away a house to a home health aide (HHA) that is already registered with Adult Protective Services as having exploited a prior victim, can't manage his meds, multiple falls, SS scams, etc.)

The initial plan was to name by brother and I as conservator and guardian.
However, we're learning that while it looks like a slam dunk court case, there is absolutely nothing we can do about Dad's living conditions once we are guardians if Dad doesn't want to play along (and he most definitely is going to fight. Hard.).

* We can not get a restraining order to forbid the exploiting HHA from contacting Dad (no physical violence, "its not harassment if Dad WANTS contact with her").
* The state Adult Protective Services is stepping out saying their job is done because Dad's assets will be protected once we get a conservator named.
* We can not get a court order to have him placed in assisted living.
The highly recommended elder law atty's less than helpful suggestion is "pick dad up to go shopping for groceries and then drop him off at the assisted living facility instead". Per the lawyer, "a court order is just a piece of paper and there is no one that will enforce it" (The police will not get involved).

* There is no other family willing to engage. In the last month Dad has fired his CPA, his rental property manager, PCP Dr. etc, so there is no one else to bring into the picture that Dad might listen to.

So. We're sitting here trying to figure out if we should even petition for guardianship. Once made guardian, we're responsible to the court and liable for Dad's care, but we would have absolutely no control of providing that care. Short of 24 hour a day home health aides (unaffordable @ $18K PER MONTH), there is no way to stop dad from doing things like repainting his house (climbing ladders, going into the crawl space under his ground set trailer, etc) and walking 6 miles (one way) to some place that he "has to go to NOW" rather than wait for some one to give him a ride.

Questions:
What options are there to get somebody into assisted living/memory care against their will?

How can a guardian ensure health and safety without any control of the living environment?

Any ideas here?
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Old 02-21-2020, 06:55 AM   #2
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I think the easiest course of action would be if he were diagnosed by a specialist with a disorder that is impairing his judgement. Has he been evaluated by a neuropsychiatrist or a geriatric psychiatrist? And are his actions out of character for him, or are they pretty much what you would expect from him when he gets annoyed or frustrated? If the former, ask a specialist in particular to evaluate him for frontotemporal dementias, as this class of disorder often causes changes in personality and behavior, especially an increase in aggression and risk-taking behaviors.

Another tactic is to talk to assisted living/memory care facilities in your area about ways to get him out of the home and admitted. Now, they're at best like surgeons, where everything is best solved by operating, and at worst like car salesmen, where they will say anything to make a sale, but they are experts in their business, so as long as you listen to them with that in mind, they may have some ideas and or tools to provide that you can decide to use or not use.

Best of luck.
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Old 02-21-2020, 07:10 AM   #3
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There is a company called Oasis Senior Advisors that helps match people with senior homes. The local rep in your area might have suggestions.
My DMIL once worked at the county Office for the Aging. If there is something similar where you are they might have ideas.
We found someone for around the clock care for my DM without going through an agency and paid less than half what you have been quoted. Keep looking for alternatives.
Best wishes.
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Old 02-21-2020, 07:21 AM   #4
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Originally Posted by The Cosmic Avenger View Post
I think the easiest course of action would be if he were diagnosed by a specialist with a disorder that is impairing his judgement. Has he been evaluated by a neuropsychiatrist or a geriatric psychiatrist? And are his actions out of character for him, or are they pretty much what you would expect from him when he gets annoyed or frustrated? If the former, ask a specialist in particular to evaluate him for frontotemporal dementias, as this class of disorder often causes changes in personality and behavior, especially an increase in aggression and risk-taking behaviors.

Another tactic is to talk to assisted living/memory care facilities in your area about ways to get him out of the home and admitted. Now, they're at best like surgeons, where everything is best solved by operating, and at worst like car salesmen, where they will say anything to make a sale, but they are experts in their business, so as long as you listen to them with that in mind, they may have some ideas and or tools to provide that you can decide to use or not use.

Best of luck.
So far the facilities only involvement begins once the patient is accepted as a resident of the facility. And if the patient looks to be a problem child, the facility can refuse to accept them. There are lock-in facilities, but we still have to get him there.

Building the competency case with a diagnosis is not the issue. We have a letter from the PCP Dr., a report from Adult Protective Services, an inch thick folder of documentation, and we hired a private pay "forensic neuropsychologist" (supposedly highly respected by the local judges... judges rubber stamp what her reports recommend) all stating dad is unable to manage his finances or make health care decisions and stating he should be in assisted living.

The problem is he won't go willingly and there doesn't seem to be anything that can be done if he doesn't want to go. Imagine a toddler having a tantrum meltdown and choosing they are going to live by themselves with no adult supervision to prevent them from doing whatever they want.

A conservator can take away the funds and sell the home he is staying in to try and force the issue, but if the ward would rather be homeless than stay in (a LTCI paid for) assisted living facility, the ward is free to do so.


Is taking them on an errand and then dropping them off somewhere else really the only option?
While he got lost walking in his trailer park, he knows the way to the grocery store, Drs offices, etc that short of a bad movie abduction involving a bag over his head he is going to know when we're not going where he thinks we're going.
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Old 02-21-2020, 08:09 AM   #5
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Moved my father against his will to an assisted living. Own apartment there which we furnished with lots of things from his apartment. He never noticed the things going out. They have a nice restaurant there, and he loved going out to eat, so we went a bunch of times to the restaurant and he loved it. Suddenly the idea of being able to go to the restaurant everyday became palatable and he agreed to move there. His home health care aide lived nearby and continued to visit him there every day for a while for continuity.

When he decided he wanted to “go home” a few weeks later that wasn’t an option. Sure he could have walked out and become homeless but it was winter and cold and he wasn’t about to do that. Was he happy? No. Were we? No, but it was the best of a bad situation and they had doctors and counselors who helped a lot and the staff were better at handling him than my sisters and I were. He was much quicker to say no to us than he would the staff there.
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Old 02-21-2020, 08:21 AM   #6
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Why not just seek conservatorship instead of full guardianship so you're only legally liable for his finances?
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Old 02-21-2020, 08:30 AM   #7
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Moved my father against his will to an assisted living. Own apartment there which we furnished with lots of things from his apartment. He never noticed the things going out. They have a nice restaurant there, and he loved going out to eat, so we went a bunch of times to the restaurant and he loved it. Suddenly the idea of being able to go to the restaurant everyday became palatable and he agreed to move there. His home health care aide lived nearby and continued to visit him there every day for a while for continuity.

When he decided he wanted to “go home” a few weeks later that wasn’t an option. Sure he could have walked out and become homeless but it was winter and cold and he wasn’t about to do that. Was he happy? No. Were we? No, but it was the best of a bad situation and they had doctors and counselors who helped a lot and the staff were better at handling him than my sisters and I were. He was much quicker to say no to us than he would the staff there.
When you say against his will what do you mean? The OP is saying he would have to physically drag his Dad probably kicking and screaming to a different place....getting the man there to check it out is the actual problem.
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Old 02-21-2020, 08:33 AM   #8
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Why not just seek conservatorship instead of full guardianship so you're only legally liable for his finances?
This.. and as hard as it's going to be you can only protect his assets in case he does have a change of heart.
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Old 02-21-2020, 09:58 AM   #9
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.... So. We're sitting here trying to figure out if we should even petition for guardianship. Once made guardian, we're responsible to the court and liable for Dad's care, but we would have absolutely no control of providing that care. Short of 24 hour a day home health aides (unaffordable @ $18K PER MONTH), there is no way to stop dad from doing things like repainting his house (climbing ladders, going into the crawl space under his ground set trailer, etc) and walking 6 miles (one way) to some place that he "has to go to NOW" rather than wait for some one to give him a ride.

Questions:
What options are there to get somebody into assisted living/memory care against their will?

How can a guardian ensure health and safety without any control of the living environment?

Any ideas here?
That is totally different from my experiences being the court-appointed guardian for my grandmother and then my great-aunt. I was empowered to make all decisions for the ward. If I wanted the ward placed in assisted living or memory care then I was auhorized to do so and the ward had absolutely no say in the decision. Now, in both of my cases it never came up as an issue because they were both already in a nursing home when I was appointed guardian... though I certainly could have move them to a different nursing home I had no reason to do so and their state was such that assisted living wasn't an option.

And to be clear, once you are appointed guardian you are not liable for your dad's care like in financially liable.... care is paid for by his assets and if his assets are insufficient it is no different from if he were making decisions.. your personal assets should not be at risk unless you chose to put them at risk.

On the very last part about painting the house or walking to the store, you are right until he becomes a danger to himself or those around him I don't think that there is much that you can do.... at that point you are talking about having him institutionalized for mental illness and you get into the old just making bad decisions thing. You may need to just let him do his thing and deal with the consequences.

One thing to note... once you are appointed guardians the HHA can smoothtalk him to her heart's content but since you have to sign off on all financial decisions she's not going to get anything out if it... inform her of that and she'll probably move on to another mark.

Finally, while it would obviously be best to convince him to move to assisted living, if you have deceive him to get him into a safe environment then you gotta do what you gotta do.

Can you at least get him to agree to visit an assisted living facility? Perhaps also have a meal there with some similarly aged residents? My uncle lived in one and loved it... three squares a day and he could have meals with a bunch of similar aged old guys that he enjoyed being with. Call it a "field trip".
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Old 02-21-2020, 10:10 AM   #10
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I was a social worker and you can’t force a adult to live in safe conditions unless they have dementia. They aren’t children.
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Old 02-21-2020, 10:13 AM   #11
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One thing to note... once you are appointed guardians the HHA can smoothtalk him to her heart's content but since you have to sign off on all financial decisions she's not going to get anything out if it...
I'd consider telling the HHA that even if it isn't the case as that might discourage any attempt to take advantage of the situation.
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Old 02-21-2020, 10:18 AM   #12
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I was a social worker and you can’t force a adult to live in safe conditions unless they have dementia. They aren’t children.
I agree with what you wrote, but if a court appoints someone as their full legal guardian, then I think from a legal perspective they are no longer an adult who can make decisions for themselves so a guardian could force them to change where they live if where they were was not safe. In effect, in the eyes of the law they are children (sort of).

Right?
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Old 02-21-2020, 10:19 AM   #13
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One technique that I have used is to invite the relative along on a facility hunt for a third party. Tell him that you value his opinion and visit several. You never know, he might like one. Then tell him that this too could be his home if he wished, talk about where he would hang his pictures - help him visualize. Note that the facility has a housekeeper and food service. Choose facilities that you think would interest him.

Not knowing this guy but if there are sociable women residents that might be an attractive feature.
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Old 02-21-2020, 10:27 AM   #14
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Pb, dementia is the key not safety. We had a former professor living in squalid conditions in his home and nothing could be done. This is what he chose. When my mom was dying of cancer she lived alone and was not safe because she was unsteady and couldn’t get up if she fell. Her mind was fine and she was determined not to go into a home. A week before she died she fell and laid for 24 hours until found. Then she went to hospice and died a week later.
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Old 02-21-2020, 10:38 AM   #15
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Pb, dementia is the key not safety. We had a former professor living in squalid conditions in his home and nothing could be done. This is what he chose. When my mom was dying of cancer she lived alone and was not safe because she was unsteady and couldn’t get up if she fell. Her mind was fine and she was determined not to go into a home. A week before she died she fell and laid for 24 hours until found. Then she went to hospice and died a week later.
Agreed, but I presume that the court would not appoint a full legal guardian to someone who is of sound mind.

I had a great uncle who was similar to the gentleman that you describe. Stubborn and obstinate but of sound mind. Was unwilling to go to a nursing home even though he had lots of money because "it cost too much". Ended up living alone... sometimes in his own feces... very sad.
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Old 02-21-2020, 01:22 PM   #16
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When I became my mom's guardian in 2017, I petitioned the court to:
1. become guardian of my mom, the person,
2. become guardian of my mom's estate, and
3. protective placement of my mom in a "locked" memory care assisted living facility.
As part of the process the judge stripped my mom of her rights to make her own decisions.
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Old 02-21-2020, 03:10 PM   #17
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OP, I sympathize with the frustrations and concerns you have with your father. My mother also had progressively worsening dementia and lived alone in the 2-story family home, but had just enough lucid moments to convince others that she should not be declared incompetent. In the meantime, she continued to drive and crash into things (license already revoked), wrote large checks to scammer door-to-door salesmen, and refused in-home aides arranged by my brother. My brother ended up resorting to deception to get my mother to sign him as Power of Attorney for her financial affairs. He also managed to get a letter from a neurologist who evaluated our mother for dementia that essentially declared her diminished mental capacity made her incapable of defending herself from fraud. Still, she resisted leaving her home and living with her daughter(s) or assisted living, and would eject any in-home assistant we hired. My brother was reluctant to attempt to get conservatorship unless he absolutely had to. Her dementia became quite advanced when she had an altercation with her next door neighbor over his parking in front of her mailbox. The police arrived and began driving her to the police station, but became aware she was not in her right mind, and they drove her to the hospital for evaluation instead. At the hospital, my brother had a long talk with the social worker who made arrangements for direct admission to an assisted living facility after hospital discharge. In order to get my mother’s cooperation to go there, my brother resorted to more subterfuge. “Mom, the doctor says you need to stay at the stepped down hospital for 7 days to make sure you’re doing ok before you can go home, okay?” The nurses and social worker did not approve of the dishonesty, but stayed quiet during the persuasion. By now, her memory was so poor, she couldn’t remember how long 7 days were, so she stayed at the assisted living facility and gradually forgot what her home was. Each time she asked “When am I going home?”, the answer was always, “Tomorrow.” The assisted living employees were not comfortable with the deception, but they also remained quiet.

I’m not promoting dishonesty, but she had become a danger to herself and others, and this was the way our family struggled to get my mother into assisted living, memory care. I do consider my brother a remarkable person for enduring this struggle.
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Old 02-22-2020, 06:55 AM   #18
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Moved my father against his will to an assisted living. Own apartment there which we furnished with lots of things from his apartment. He never noticed the things going out. They have a nice restaurant there, and he loved going out to eat, so we went a bunch of times to the restaurant and he loved it. Suddenly the idea of being able to go to the restaurant everyday became palatable and he agreed to move there. His home health care aide lived nearby and continued to visit him there every day for a while for continuity.

When he decided he wanted to “go home” a few weeks later that wasn’t an option. Sure he could have walked out and become homeless but it was winter and cold and he wasn’t about to do that. Was he happy? No. Were we? No, but it was the best of a bad situation and they had doctors and counselors who helped a lot and the staff were better at handling him than my sisters and I were. He was much quicker to say no to us than he would the staff there.


I applaud you for taking the time and effort to make all these thoughtful adjustments. We found that not only was it kinder, it paid off in the long run to have a satisfied loved one. Your restaurant idea was inspired!
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Old 02-22-2020, 07:05 AM   #19
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Why not just seek conservatorship instead of full guardianship so you're only legally liable for his finances?
Dad lives alone.
If we take control of the finances without control of his living conditions, there is no way to keep him "fed and watered"... groceries, prescriptions, etc. all need to be paid for. Giving Dad access to $ to pay for them himself will result in the $ going to the HHA and not for his needs. Without guardianship there is no way to inject others into the equation to take him grocery shopping/etc.

I don't see a way where $ can be controlled without also controlling his living conditions. What am I missing?
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Old 02-22-2020, 07:35 AM   #20
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I’m not promoting dishonesty, but she had become a danger to herself and others, and this was the way our family struggled to get my mother into assisted living, memory care. I do consider my brother a remarkable person for enduring this struggle.
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.
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