My Home is My Castle
By Paul Mitchell, CELA, East Denver LIVING WELL Magazine
“My home is my castle.”
This is the byword of many elderly who have lived in their homes all of their adult lives. Their attachment to their homes can put them at risk. Many stay home although they fall frequently. Some families have discovered that their loved one fell in the home and could not get up for several days until someone discovered them. In those cases, the elder goes to the hospital, completes rehabilitation and then cannot go home because it would be unsafe to do so.
Impact of Dementia on the Elder’s Judgment
Most of theses cases involve a person who has dementia, a general term describing several symptoms including loss of short term memory, confusion and a lack of judgment. The most common type of dementia is Alzheimer’s disease. Frequently, an individual’s lack of judgment may occur before the other symptoms are apparent. Consequently, they may lack the ability to make medical decisions.
The Care Plan
The “care plan” is the recommendation of the medical professionals in charge of the person’s care. A doctor may recommend oversight and care for the patient. An assisted living home or nursing home may be the best place where the patient is safe and can receive proper care. Now the care decision becomes a placement decision. The family may need a court to appoint a guardian to enforce an appropriate care plan.
How to Seek Appointment as Guardian
The process starts with a petition to the court alleging that the person cannot meet their needs for self-care, safety or physical health. The reason is usually the loss of judgment that comes with dementia. Many individuals who suffer from dementia believe that nothing is wrong with them. They lack insight into their shortcomings. Frequently, they will want to go home when to do so is clearly dangerous to the person.
Emergency Appointment Available
When delaying the appointment of a guardian would cause substantial harm to the individual, the court may appoint an emergency guardian before the final hearing. Situations may include a person who lives by himself or herself and wanders from the home or is confused. One case that I handled was for a demented uncle of my client who was admitted to the ER in a diabetic coma twice from failing to take his insulin medications. Obviously, immediate intervention was needed. Some cases involve persons in unhealthy environments in the home including clutter or living with too many pets. Often the home is filled with newspapers and bills such that the visitor has to follow paths through the built up debris.
What if a person has already signed a medical durable power of attorney?
If an individual has previously signed a medical durable power of attorney, he or she can revoke the agent’s authority regardless of his or her competency. A person cannot write an irrevocable power of attorney for himself. Without the person’s consent, he or she cannot be forced to go to a facility or forced to stay at a facility. For our clients, we frequently request the court to appoint a guardian despite the nomination of an agent in the individual’s medical durable power of attorney. This eliminates the possibility that the individual will later revoke his or her medical durable power of attorney and sabotage the care plan.
Duties of a Guardian for Placement
Once appointed, the guardian should follow the recommendations of the individual’s physician and other treating professionals. The guardian can place the person in an appropriate facility. Before doing so, however, the guardian should determine whether the person can stay at home with services within the budget available. The services of a geriatric care manager may help the guardian make these decisions.
Impact on the Family
The hardest part of this process is emotional. The family members have exhausted all self-help steps before they come to me for court intervention. The person subject to the guardianship can get very upset although the family is pursuing the guardianship to protect that person. They must know that they must intervene.
To discuss whether you should seek the appointment of a guardian and the procedures for doing so, you should contact an elder law attorney.
(This article is an overview of certain aspects of guardianships and is incomplete. It is for educational purposes only.)
Paul Mitchell, CELA (Certified Elder Law Attorney), has an office at 3300 S. Parker Road, Suite 215, Aurora, CO 80014, 303-338-9800.
