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"Competent, Caring and Responsive"

Archives for March 2015

The Importance of Advanced Directives for Aging Parents in Idaho.

The fact is we are all living much longer than ever before, and as a result, we are experiencing more diminished physical and mental capacity than our ancestors ever experienced. The best time to approach this subject with aging parents is before they begin to exhibit any sort of decline. Jointly making these decisions before parents become too impaired, can relieve children of anxiety and difficulties if they are faced with needing to appoint a conservator and/or guardian by the Courts.

Peace of Mind

When parents and children have an understanding of their wishes should parents become incapacitated in the future, there is peace of mind. Provisions can be put in place to be sure everyone’s rights, wishes, and intentions are protected.

A power of attorney may be prepared, but not put into effect until the appropriate time. If the aging parents enjoy their golden years without having to deal with mental decline of any perceptible level, the power of attorney may never be used. However, having a power of attorney can be “durable,” meaning that the power of attorney is still be effective after the person becomes incapacitated. There could also be safeguards put in effect, such as limiting the agent’s (called an attorney-in-fact) authority or require two persons to act jointly for certain decisions such as selling real property.

If a conservator and/or guardian become necessary, planning ahead will allow the elderly person to designate who they would want to serve as a guardian and who to serve as the conservator. The guardian and conservator do not need to be the same person(s).

Discretion of the Courts

Lack of planning for the future leaves the resolution of situations involving elderly relatives up to the discretion of the courts, and can be very detrimental to the control of the property and the harmony of the family. The Court may appoint a conservator or guardian who goes against the desires of the family. If there is a strong division in the family, the Court could even appoint a third party who gets paid from the funds of the incapacitated person. If the intentions of elderly parents or other relatives are to be honored, having the necessary paperwork in place is imperative.

Tools to Consider

There are a number of documents for one to consider for the time when aging parents are no longer able to make sound decisions on their own. These include:

  • Living Will. A living will can designate what type of care a person will receive if they become terminally ill and unable to make decisions on their own (e.g. in a coma). A person can designate what they want including: 1) all possible care to keep them alive; 2) hydration and nutrition only; 3) withholding of treatment, fluids and food, allowing the person to pass quicker. (This is the most commonly used); and 4) designate a person or persons who has the medical power of attorney to make the decision. In any one of the alternatives, the terminally ill person does not suffer and receives the necessary medications to make them comfortable.
  • Physician Orders for Scope of Treatment (POST). This replaces the previous “Do Not Resuscitate” and “Comfort One” programs. This is a document prepared by the patient in cooperation with his or her physician to express their wishes regarding medical treatment.
  • Durable Power of Attorney for Health Care. This allows a person to designate one or more persons to make health care decisions for an incapacitated person. This person (or persons) is one who could authorize where the incapacitated person resides, such an assisted living center, in addition to working with health care providers on behalf of the incapacitated person.
  • Durable General Power of Attorney. Also known as a financial power of attorney, this document allows for the attorney-in fact to handle the property and income of the incapacitated person. The scope of authority may be broad or limited, depending upon the language chosen.
  • Trust Agreements. Some individuals use a trust to control assets. A trust is more costly upfront, but may have benefits that those planning may want to consider in cooperation with an experienced attorney in estate planning and elder law.

The Responsibilities of being a Guardian or Conservator

When our parents grow older and begin to exhibit mental or physical decline that erodes their ability to care for themselves or become vulnerable to the improper influences of others (such as scam artists who prey upon the elderly), children sometimes have to make the tough decision to have a conservator and/or guardian appointed. By way of definition, a guardian is one who is responsible for the person. A conservator is responsible for the person’s property. However, few children or other family members who consider becoming guardians to their elderly parents or relatives have a clear understanding of what is involved. Becoming a Guardian to an elderly parent is not a simple matter.

Facts about a Court Appointed Guardianship or Conservatorship

Anyone seeking to gain the status of being a guardian or conservator for an incapacitated person, including an elderly parent, should know:

    • A Guardian makes all legal decisions on behalf of the incapacitated person, including making medical decisions about whether or not to apply treatments or administer medications on the advice of medical professionals. They can decide where that person will live. You will in essence become the parent to that person. The guardian can, unless the Court directs otherwise, decide who can and cannot have contact with the incapacitated person.

 

  • A Conservator manages the incapacitated person’s finances, paying bills and managing investments or other assets, such as property. There must also be an accounting for the funds submitted periodically to the Court Clerk. After the first year, the reporting is done annually.

Costs

Many people are concerned about the costs associated in gaining status as a guardian or conservator of elderly parents in Idaho. Some may believe that they will become personally responsible for huge medical bills, legal bills, and other costs associated with managing someone’s life, which is not the case. A guardian or conservator cannot be looked to use their own income and funds to handle the affairs of their ward, as long as they let the parties know they are dealing with a guardian and/or conservator. Instructions can be given to make sure documents and contacts are signed correctly.

Gaining Guardianship of Elderly Parents.

We would all like to think that our elder years will be spent in peace and quiet, enjoying the fruits of our labors and the company of our friends and family. No one likes to think that they may spend their final years dealing with diminished mental or physical capacity and need to rely on children or others – even total strangers – to care for us and manage our affairs. As a result, many children find themselves in the upsetting scenario of dealing with an aging parent who is in denial about their capabilities. Despite a clear inability to handle themselves, the parents may resist any attempt to wrest control from them, making it difficult for children. Sometimes it becomes necessary to involve the Court in getting a conservator and guardian appointed.

Incompetence/Incapacity

Idaho courts have a mechanism for having an elderly parent (or anyone else exhibiting a decline in their ability to manage their own affairs) declared incompetent, and thus requiring the assistance of someone else appointed as the conservator and/or guardian for elderly parents.

This procedure involves the court which attempts to make a decision in the best interest of the alleged incapacitated person. The process is started by the person(s) seeking the appointment of guardian or conservator filing a petition. The Court will then designate a physician (usually the person’s own physician) to provide their opinion as to whether or not the individual needs either or both, a guardianship or conservatorship. The Court will also insure that the alleged incapacitated person has an attorney to represent his or her interest and will appoint an attorney if the alleged incapacitated person hires their own attorney. The court will also appoint a “visitor” who is a neutral party, who does an investigation on behalf of the court and makes a report and recommendation to the Court.

The Invisible Elder Abuse: Financial.

When people hear the term “elder abuse” they generally imagine a gothic scenario where a caregiver physically or mentally abuses a helpless elderly person, physically or mentally unable to defend themselves. The scenario frequently plays out in the imagination (and all too often in real life) in nursing homes or other elder care facilities. Children often imagine they will be able to ensure their parents never suffer such abuse and indignities.

However, a much more destructive and more insidious form of abuse can be perpetrated on elderly parents – financial abuse. Financial abuse is frighteningly easy to commit when an elderly parent has begun to lose control of their affairs but has not yet been formally recognized as in decline. Sadly, while most financial abuse of the elderly is committed by relatives, even children, it is also often perpetrated by businesses either alone or in collusion with relatives, including the creation of new wills, insurance policies, or agreements to pay for unnecessary services. As a result they maintain full control over their finances, and predators can convince them to sign away assets, make cash payments, add them to bank accounts or credit cards, or simply use personal information to commit identity theft.

Like most other forms of elder abuse, financial abuse can be prevented or mitigated with the proper appointment of conservator or person holding a Durable General Power of Attorney.

David A. Johnson has been providing quality legal services in East Idaho. As both a private attorney and as a former Bonneville County Prosecuting Attorney, Mr. Johnson has substantial courtroom experience. Mr. Johnson has handled cases all over the State of Idaho. His primary areas of practice are in Bonneville, Bingham, Butte, Jefferson, Madison, Fremont Bannock and Jefferson Counties. In addition, to Idaho Falls, we serve residences in the Blackfoot, Shelley, Firth, Rigby, Rexburg, St. Anthony, Ashton, Ammon, Driggs and Victor, Idaho. [Read more..]