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.
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.