When Incapacity Strikes: Helping Mom and Dad Make Decisions: Free Seminar and Discussion on April 27, 2016 at 7:00 p.m.

Family Law MA Edith is an eighty-three year old widowed woman with three adult children. Edith had always been very independent and active. Although none of her children reside near her, they called and took turns visiting her. During one of these visits, Edith’s son noticed that she seemed distracted and forgetful and that her normally pristine home was in disarray. When Edith’s daughter visited next, she noticed that these problems had worsened and that the clutter in the home included piles of unopened bills. One morning, her daughter found that Edith had gone. While it was not unusual for her to drive to the nearby coffee shop, she failed to return. Police in a nearby city later found Edith, confused and disoriented, when she attempted to park on the sidewalk. She had sustained minor injuries after hitting a pole. After a short hospital stay, Edith’s treatment team determined that it was not safe for her to return home due to her inability to care for herself. Edith denied her illness and insisted on returning home alone. Edith’s children now disagree about the best plan for her future. Could she live alone with home health care services or does she need a higher level of care in a skilled nursing home? Would an assisted living facility with a memory-care unit be appropriate? Who can legally make the decision for her to move to a facility if she refuses to go? How will she afford the care she needs and who has the authority to access her assets to pay for her care?

Above is a fictionalized account of a common situation in which the need to obtain a guardianship and/or conservatorship of an elder often arises. Usually, it can be a difficult time as both the elder and the family are under a great deal of stress. The family may find it hard to understand and accept the changes that have occurred in the elder’s life and may also be under pressure to make important care decisions quickly. The elder may feel frightened due to unfamiliar surroundings and abrupt changes in routine, in addition to the fear that he or she has lost control over decision-making. Sometimes, family disagreement over the elder’s future adds to the emotional stress of the situation.

In an ideal situation, the elder has previously executed both a Durable Power of Attorney and a Health Care Proxy nominating agents to make his or her financial and health care decisions in the event of incapacity. However, in order to be valid, these documents must be executed while the elder still has the capacity to do so. Once a physician has deemed the elder to be incapacitated, it is too late to do so. At that point, it is necessary to petition the Probate Court to obtain a guardianship and/or conservatorship of the elder.

A family member may petition the Probate Court to appoint him/her or another family member or friend to serve as either the guardian or conservator. Guardianship provides the authority to make personal and routine medical decisions for the elder. If there are extraordinary medical decisions to be made, such as for treatment with antipsychotic medication or the need to obtain a Do Not Resuscitate order, those must be specifically requested on the petition. Likewise, if there is a need for the elder to be admitted to a skilled nursing facility or a locked memory-care unit, or for the authority to access bank accounts in order to submit a MassHealth application (often required for skilled nursing home admission), the petitioner must specifically make those requests on the petition.

Conservatorship provides the authority to make decisions regarding the elder’s finances, including payment of bills and the investment and management of funds. If there is estate planning to be done, such as the creation of a pooled trust, the conservator will need to file a separate petition to set aside funds and create the trust.

Both a guardianship and conservatorship can be obtained relatively quickly if there is an emergency requiring immediate health care and financial decisions to be made. Appointment requires medical paperwork from the elder’s physician certifying his or her diagnosis, prognosis and need for the appointment of a fiduciary. A temporary appointment of a guardian or conservator lasts for ninety days, after which a permanent appointment may be sought.

Both the guardian and the conservator are accountable to the court for the decisions that they make. All decision must be made in the best interest of the elder. A guardian must file a yearly report with the Probate Court describing the elder’s personal and medical needs and how those needs have been met. A conservator must file a yearly plan with the court disclosing how the elder’s income will be used to meet his or her needs. In addition, the conservator must file an initial Inventory (snapshot of the elder’s assets at the time the initial appointment is made) and a yearly Account (listing the elder’s income and expenses for the year as well as the balance at year’s end). A conservator also must file a bond with the Court at the time of his/her appointment, either with personal or corporate sureties (requiring a yearly premium).

Often, the question arises as to who will serve as the guardian and conservator. Both jobs are time-consuming, requiring frequent contact with medical providers and close attention to bank accounts, investment accounts and payment of bills. The job may fall to the adult child who resides closest to the elder or who has been

the “responsible one.” Sometimes, particularly in families with a history of discord, there can be strong disagreements over who should be appointed. If these disagreements become contentious, the Probate Court may appoint a neutral fiduciary, often an attorney with extensive experience in this area of law.