William & Mary Elder Law Clinic

Serving Seniors in the Greater Peninsula Area

Month: March 2017

We Care. That’s Why We Must Have The Difficult Conversation

By Kelsey Knitter, Elder & Disability Law Clinic Student, Spring 2017

I came to the Elder and Disability Law Clinic with a unique experience; both of my parents are Elder Law attorneys. I have heard them discussing some of their most difficult cases, cases involving family members fighting over loved ones. I was shocked that family members could be so at odds that they needed to go to court while a parent was dying. I remember thinking how that would never happen in my family because we all love each other and just want what’s best for our parents/grandparents.

However, I have started to learn that in many of these situations, it’s not that one member of the family is acting maliciously (thought that obviously can be the case); instead, both children often care so much for their parents but they sometimes just don’t agree on what is best given the circumstances. As my own grandparents have begun to age, I can see much more clearly how such disagreements can occur.

Another common problem that arises when a family member is dealing with an aging senior is that the senior may become uncooperative and unwilling to compromise. In order to alleviate this tension, it is important to remember that the senior does not want to feel like he is losing control. Approaching this conversation as a discussion about what the senior wants is one way to hopefully avoid conflict. Additionally, having this conversation early, while the senior is still competent, is all the more important for avoiding such a tension.

My mother and uncle recently had this conversation with their own parents, my grandparents. It was by no means easy to bring up. It is hard to say to a parent, what do you want me to do if you can’t take care of yourself?  However, at the same time, this is extremely important to determine what would be best for my grandparents were they to become incapacitated. It is a harsh reality, but you never know what may happen. For instance, my grandpa slipped on ice the other day and took a rough fall.  Fortunately, he was not seriously injured. However, had he broken a hip, he may have needed some long-term care.

This is why having that difficult conversation is vital. It’s not only important for the seniors to assert their wishes, but also for other family members to understand those wishes and be on the same page when carrying them out. It is a necessary step to avoiding misunderstandings or disagreements amongst siblings or spouses, which is important for avoiding unnecessary and expensive litigation. Having this conversation with an aging loved one is an important step in EVERY family in order to ensure any easier transition as a parent/grandparent begins to age.

 

 

Accounting for the Varying Degrees of Incapacity— the Limited Guardianship

By Michelle Chionchio, Elder & Disability Law Clinic Student, Spring 2017

Our “legal, social and economic worlds” assume that adult individuals are able to make responsible decisions on behalf of themselves. That is, all adults are presumed to have legal capacity unless a court with proper jurisdiction deems otherwise. An “incapacitated person” is an individual found by the court to lack the mental and/or physical capacity to care for himself, including his inability to satisfy his basic health, safety, care, education, habilitation, and therapeutic needs without assistance. In such a case, a court appointed guardian may be appropriate to prevent the incapacitated person from victimization and to ensure that his best interests are accounted for.

A “guardian” stands in a fiduciary relationship with the incapacitated person, owing him the fiduciary duties of care, loyalty, and good faith. Because a guardian must act in the incapacitated person’s best interests, a guardianship may be full, limited, or temporary, depending upon the individual’s level of capacity. This is because capacity is not a “light switch”—there are shades of grey and varying degrees of capacity, which call for partial substitute decision making. That is, where an individual’s loss of capacity is not complete, the guardian’s powers should be “limited” to address solely the needs of the individual, so as not to unnecessarily restrict his autonomy. For example, if an individual’s incapacity prevents him from making major health care decisions, but he is otherwise capable of caring for himself on a daily basis, the court may appoint a limited guardian solely to make such health care decisions, leaving all other decisions up to the discretion of the incapacitated person.

“Full guardianships” are appropriate in instances where an individual’s loss of capacity is complete (that is, where an individual is incapable of making all personal care decisions for himself), but should be pursued as a last resort. Where an individual enjoys some capacity, a less restrictive method, such as the “limited guardianship,” should be used to provide the needed protections. In theory, limited guardianships recognize that the appointment of a guardian is a double-edged sword—although beneficial to the incapacitated person, it results in a severe loss of autonomy and independence. Thus, limited guardianships help to lessen the blow by curbing the infringement and intrusion into the incapacitated individual’s life. Yet, despite its apparent advantages, families are sometimes opposed to limited guardianships believing that it is “not feasible to detail the contours of the incapacity and [to] create an appropriate, individualized guardianship.” However, this belief is misguided—a medical evaluation helps to determine the degree of capacity, and a well drafted petition will outline all of the rights the incapacitated individual will retain. If the individual’s capacity should change over time, the guardian’s power may be increased or decreased as appropriate.