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Michigan Elder Law Today

Sunday, February 17, 2013

Guardianship for the Uncooperative Elderly

 

Susan was upset.  She had just gotten off the telephone with adult protective services.  Someone made a report that Ted, her 82 year old father, was being neglected.  Adult protective services had then visited Ted’s home unannounced and without notice to Susan.  Ted let the adult protective services workers in and they saw what Susan had been trying to deal with for over a year:   Ted was unkempt and would wear the same clothes for days.  His papers were scattered all over the house and there was lots of unopened mail.  The kitchen smelled due to rotting food.  Ever since Ted had a stroke about two years ago, Susan had been noticing his mental state was progressively declining and his was friendly personality was changing too.

Ted was a retired engineer and had always been fastidious about his appearance and keeping his home and finances in order.  Susan was the same way and she remembered how she learned how to manage her money and invest from Ted.  Now when she raised the subject about helping him with his bills and mail, Ted would get upset and tell Susan to mind her own business.  Susan did not know where Ted’s accounts were or if his bills were being paid.  Susan hired a maid service to clean Ted’s home, but he would not let them in.  Every time she tried to help him, he blocked her and it just made him mad at her.

Susan recognized Ted’s memory loss.  He did not know what year it was or remember the grandchildren’s names.  Ted had always taken care of himself, but in the months after his stroke, he stopped going to the doctor.  Now, when Susan tried to arrange medical appointments for him, Ted refused to go and said he was in perfect health, when before he was regularly treating for high blood pressure and arthritis.  Ted was no longer filling his prescriptions.  Ted’s doctor’s office and his pharmacy said they could not talk to her without Ted’s permission due to HIPAA.  It was obvious that Ted had some form of dementia and was not able to manage his medication, cook for himself, or take care of his affairs.

Susan was at a loss about what to do.  She could not drag him out to the car and force him to go to the doctor.  Now the case worker from adult protective services was telling her she needed to get guardianship over Ted or the state would apply for guardianship instead.

Susan made an appointment to visit me in my office, and after getting more background information, we discussed the purpose of a guardianship proceeding.  I advised that a guardianship is a protective proceeding that occurs in the probate court in the county in which Ted lives.  In Ted’s case, the guardianship would be in the Oakland County Probate Court.  Under our system of laws, once we turn age 18, no one else can make medical, financial and other personal decisions for us without our consent.  That is the basic freedom we enjoy as Americans.  This freedom and autonomy is good and desired until one cannot make this health care and financial decisions for some reason.  In my elder care practice, the primary reason that prevents seniors from making good decisions is dementia or some other illness related to advanced age.  It appears that due to the effects of his stroke and dementia, Ted actually does not recognize his limitations or that he is not able to attend to his basic needs.

Before someone else can start making medical and financial decisions for an older person in this type of situation, a guardianship and conservatorship proceeding will need to be started.  The law requires that before a probate court judge can appoint someone else to make medical and financial decisions, there has to be a proceeding to determine if the senior is actually incapacitated and, if so, who should be their guardian and conservator.  This is because to appoint a guardian or conservator for Ted will limit his rights and freedom.   Guardianship and conservatorship are referred to as “protective proceedings” in Michigan because they are designed to protect the freedom of the senior and, if it is determined that they are legally incapacitated, to make sure they are taken care of after a guardian and conservator is appointed.

Susan asks what the guardianship process is.  First, a petition will have to be filed in the probate court.  The petition must indicate why Susan thinks Ted needs a guardian.  Once the petition is filed with the court, the court will set a hearing date for the petition and appoint a guardian ad litem.  The guardian ad litem (GAL) is typically an attorney and the GAL’s responsibility is to investigate the situation and make a recommendation to the judge whether the senior needs a guardian and conservator and, if so, who should be appointed.  The GAL will have to visit Ted and advise him of his rights.  Some of his rights are that Ted can hire his own attorney or have one appointed for him to represent him at the hearing.  Ted can contest the appointment of a guardian and conservator or he can agree to it and tell the court who he wants to be appointed.  In this case, it seems that Ted will contest it.  He even has the right to have a trial by jury to decide if he needs a guardian or not.

Susan asks “how will the court decide if Ted needs a guardian?”  I advise that the legal standard the court, or jury if Ted demands it, will consider is whether he lacks sufficient understanding or capacity to make or communicate informed decisions because of “mental illness, mental deficiency, physical illness or disability.”  Evidence will need to be presented to the court to prove this.  This evidence can include the testimony of Susan and other people of Ted’s behavior that they have observed.  If the probate court judge believes that medical evidence is necessary, the judge can order Ted to undergo a medical evaluation.  Once a guardian is appointed, the guardian can make all medical decisions for Ted, including arranging for medical appointments, getting information from doctors and hospitals, and admitting Ted to facilities, such as hospitals, assisted living residences or nursing homes. 

Susan thinks that being appointed as Ted’s guardian would be helpful, but it will surely make Ted upset.  Also, if Ted refuses to go to a doctor’s appointment now, how will having a court order saying she is Ted’s guardian actually get him to go?  I advise that though it is rare that this needs to be done, if the protected person refuses to cooperate after a guardian is appointed, the guardian has authority to have the sheriff physically transport the person to the doctor or hospital.  That would surely be a stressful and contentious situation for everyone involved, but sometimes it cannot be avoided.  Once the person is admitted to the hospital, sometimes having their medication straightened out and getting some treatment of the underlying medical condition results in them being less adversarial, so then the guardian has an easier time managing their affairs.

Susan is upset that she needs to take this action, but decides the best decision would be to file for guardianship and conservatorship for Ted.  In future posts, I will address some of the other issues regarding guardianship and conservatorship for the elderly.

Andrew Byers is a guardianship attorney and represents guardians and conservators in the Oakland and Macomb County probate courts as part of his elder care practice.


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