Mom Needs Help But Won't Accept It - Can We Apply for Guardianship?

The caller gives me the following fact pattern or some variation. Mom's health is deteriorating. Her behavior is becoming extremely erratic, in some cases violent or abusive. In some cases it's dementia. In others it's alcohol or the side effect of the medications she is taking. Bills go unpaid. Spending is out of control. The house is falling into disrepair. The family has spoken to Mom but hasn't gotten anywhere. She refuses to sign a power of attorney or health care directive or take any direction or assistance from family. The caller would like to know more about guardianship. I listen patiently and then start by explaining that guardianship isn't suitable for everyone. And it isn't easy to obtain. Now that can be a good thing, but it also can be a bad thing. You see, the first step in seeking guardianship is a decision by a court that Mom is incompetent, that she legally cannot make decisions for herself. We have a long history of individual rights in this country. Taking away that freedom is not something we take lightly. So the process of declaring someone incompetent is not an easy one. Mom has to be examined by two doctors who must agree that she is incompetent. (The exact process may vary from state to state.) Then the court appoints an attorney to represent Mom. The attorney must meet with Mom and report back to the court. And here is where the problem usually occurs. If Mom is aware of what is going on, she may object to the process. She may become angry with her children and tell her attorney to go back to the judge and tell him she doesn't want to be declared incompetent and that she will fight it. She tells the attorney that her decisions are hers to make. Her children may think she is incompetent but where is the line between bad decisions and mental incompetency? It is not an easy one to draw. In many cases I must tell the children that attempting a guardianship will probably fail. Even worse, it may drive the parent away from seeking or allowing the children to help, actually making the problem worse. In those cases, then, what other options are there? More on that in next week's post.

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Mom Needs Help But Won't Accept It - Can We Apply for Guardianship? is an episode from Elder Law Today Podcast by Yale Hauptman.

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This episode was published on Sep 7, 2009.

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