How to Become a Legal Guardian
The Caring Generation® – Episode 49 July 29, 2020. On this caregiver radio program, Pamela D Wilson, caregiving expert, answers the question How to Become a Legal Guardian for a Parent. Guest Dr. Bernardo Reyes, from the Charles E. Schmidt College of Medicine at Florida Atlantic University, shares information about Sepsis in Older Adults.
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How to Become a Legal Guardian
00:05 Announcer: Caregiving can sometimes feel like an impossible struggle. Caregivers may be torn between taking care of loved ones and trying to maintain balance in life. The good news is that it doesn’t have to be that way. The Caring Generation with host Pamela D. Wilson is here to focus on the conversation of caring. You’re not alone. In fact, you’re in exactly the right place to share stories and learn tips and resources to help you and your loved ones. So now, please welcome the host of The Caring Generation, Pamela D. Wilson.
00:48 Pamela D. Wilson: This is Pamela D. Wilson, caregiving expert. I’m your host on The Caring Generation radio program, coming to you live from the BBM Global Network channel 100 and TuneIn radio. The Caring Generation focuses on conversations about health, well-being, caring for ourselves and loved ones, all tied together with humor and laughter that are essential to being a caregiver. During this program, I will answer the question many caregivers ask, how to become a legal guardian, and what on earth does a court appointed guardian do? For eleven of my twenty-plus years as a professional care manager and a professional fiduciary, I served as a court appointed guardian for the elderly and the disabled. Twenty years ago, I was a trustee for my parents’ estate. My parents’ estate planning attorney said to me, “You’re very good at this. Have you ever considered doing this professionally?” And I was actually shocked because I was surprised to learn that closing estates and managing power of attorney and guardianship were actually a career path.
02:00 Pamela D. Wilson: At the time, my answer was no because I was grieving the death of my parents. But years later, becoming a legal guardian was my full-time job. I want to make it very clear, I am not an attorney. How to become a legal guardian does not mean that you must be an attorney, an elder law, probate, estate planning, or any other type of attorney—not necessary. I was fortunate though to have the personal experience of the death of both of my parents and seven more years of professionally managing care for the elderly and the disabled before I stepped into that role of becoming a court-appointed guardian. I’ll share more on how to become a legal guardian, and where elder law, probate, and estate planning attorneys enter into the picture in a moment.
If you are interested in How to Become a Guardian for a Parent – learn more about my online course HERE. You can also register to watch my 18-minute on-demand webinar to learn more about guardianship.
02:50 Pamela D. Wilson: Our health and wellness topic for this evening is sepsis. You may have heard the term, but not really know what on earth is sepsis. Our guest is Dr. Bernardo Reyes. He is a board-certified internist and geriatrician. He is an Assistant Professor of Geriatrics at the Charles E. Schmidt College of Medicine at Florida Atlantic University, where he serves as the Director of the geriatric and palliative rotations and Associate Director of the Internal Medicine Residency Program. He is a very busy doctor. In this role, Dr. Reyes oversees the learning experiences of internal medicine resident physicians. He’s also the attending physician for the inpatient geriatric service at Delray Medical Center, and instructor at the resident outpatient clinic in Boca Raton. He’s the author of the article, Sepsis in Older Adults in Long-term Care Facilities: Challenges in Diagnosis and Management. This is how I came across his information while I was researching the relationship between COVID-19 and sepsis.
04:02 Pamela D. Wilson: My mother died from sepsis more than twenty years ago after surgery for bladder cancer. Today, aging adults with multiple chronic health conditions are more susceptible to the coronavirus and related illnesses like pneumonia. Another one is a urinary tract infection that can also be linked to sepsis—which is a life-threatening diagnosis. You can learn more about sepsis from Dr. Reyes in the second and third segments of this caregiving radio program.
04:32 Pamela D. Wilson: Back to that question of how to become a legal guardian for an adult, a spouse, elderly parent, brother, sister or another family member. The issue of becoming a court appointed guardian arises from a state of incapacity. A simple definition of incapacity is a physical or mental ability, inability to manage one’s affairs. In this case, making medical or financial decisions. States have statutes that relate to elder law, probate, estate, and trust law that will give a more detailed legal definition of incapacity for that particular state.
05:10 Pamela D. Wilson: The question of how to become a legal guardian for, let’s say, an elderly parent. It’s a very serious matter that goes through the court system. In some states, the term guardian and conservator are interchangeable. They mean the same thing. In other states like Colorado, where I live, the guardian is responsible for managing medical care and the conservator is responsible for managing money. In a family, the guardian and the conservator can be the same person. When professionals are appointed, at least here in Colorado, the positions are separate. If I was a court appointed guardian, another professional was appointed the conservator.
05:50 Pamela D. Wilson: What events happen that mean that an elderly person needs a court appointed guardian? The event could be a diagnosis of Alzheimer’s disease that is advancing to the point where mom or dad can’t make good decisions about health or money. Another event could be a catastrophic car accident where a family member experiences a head injury that results in a brain injury, and it impairs their decision-making and their memory. Health concerns like a stroke or diabetes, those can progress to a diagnosis of dementia. Over time, these family members may need a court appointed guardian.
06:29 Pamela D. Wilson: One of the first steps in how to become a legal guardian is to confirm with a doctor that your elderly parent or family member has a diagnosis that results in mental incapacity. How do you do this? You attend a medical appointment with your elderly parent. You talk about the degree of memory loss present, and you ask a lot of questions about how memory loss may progress in the future. This early stage of memory loss is the perfect time to complete estate planning documents, especially if your elderly parent has not created a durable power of attorney—medical and financial—a living will or a will. Because, and this is important, if memory loss advances past the beginning stages, it may not be possible for your elderly parents to create the documents that could have named you or someone in the family. If this is the situation and there were no legal documents prepared, the next step is probably court appointed guardianship and conservatorship.
07:28 Pamela D. Wilson: How to become a guardian is that legal process. This is the point where some family members will choose to hire an elder law probate or estate planning attorney but you don’t have to. Some family members decide to do it themselves to save money on attorney fees and this is fine. The decision to use an attorney is a personal choice. I can’t tell you one way or another which is initially better. What I can say is if there is a disagreement in your family with other people, having an experienced elder law probate or estate planning attorney on your side is worth its weight in gold.
08:04 Pamela D. Wilson: When I was a court appointed guardian, it was because families or individuals did not get along, or because there was nobody in the family who could serve in this role. In many cases, the families did not get along. There were definitely opposing sides who disagreed about the need for a guardian. If you have this situation in your family where your brothers or sisters are asking why you—not they—are up for appointment, hiring an attorney to protect you can be in the best interest of yourself and your elderly parent, especially if the guardianship hearing will be a contested matter. More on this in the second half of the program.
08:49 Pamela D. Wilson: Helpful information and practical tips for caregivers and aging adults are in my Caring for Aging Parents caregiving blog on my website at www.PamelaDWilson.com. This is Pamela D. Wilson on The Caring Generation live on the BBM Global Network channel 100 and TuneIn Radio. Stay with me. We’ll be right back.
11:28 Pamela D. Wilson: This is Pamela D. Wilson, caregiving expert. I’m your host. This is The Caring Generation radio show for caregivers live from the BBM Global Network channel 100 and TuneIn Radio. Joining us is Dr. Bernardo Reyes, a board-certified internist, and geriatrician and Assistant Professor of Geriatrics at the Charles E. Schmidt College of Medicine at Florida Atlantic University. Dr. Reyes, welcome. Thank you for joining us.
11:53 Dr. Bernardo Reyes: Thank you for having me.
11:55 Pamela D. Wilson: Can you give a very simple diagnosis of sepsis and why the condition can be life-threatening?
12:02 Dr. Bernardo Reyes: Sure, perhaps this is one of the most difficult questions to answer nowadays because the definition of sepsis has evolved through the decades. In fact, 2000 years ago Hippocrates and Galen already described the syndrome of sepsis. And after the concept of microorganisms were better understood by people like Pasteur and Lister, you know, scientists started linking the sepsis syndrome to an infection. The technical definition of sepsis is a dysregulated inflammatory response to an infection. That’s the technical definition. A simpler definition is that sepsis is the result of an infection that overwhelms your body. It creates an abnormal response that starts a cascade of events leading to your organs not being adequately perfused by blood flow, and those organs can be damaged in an irreversible way if the process is not being stopped by adequate treatment.
13:09 Pamela D. Wilson: And in your article, it mentions that sepsis is—or it occurs disproportionately in 50% of people age 65 or older and a lot of people who live in nursing homes. Why is it more older people and then people who live in nursing homes?
13:26 Dr. Bernardo Reyes: Well, there’s a series of changes that occur as you age. As you age, your body responds differently to infection, so let’s start with that. The technical description of it is that, as I mentioned before, is that sepsis is an inflammatory syndrome that is a result of an abnormal immune response to insults. With aging, all the components of your immune systems, your different cells, and the different substances that these cells produce are altered at some degree. And all these changes, all these age-related alterations may either enhance or will make the process of fighting an infection more difficult, creating then the sepsis syndrome as it is. The current pandemic is just another proof that our frailest population is the one living in our nursing homes because the development of frailty places you at significant higher risk of developing sepsis for the reasons that I explained above.
14:42 Pamela D. Wilson: And so, what is the course of treatment for somebody who is diagnosed with sepsis?
14:50 Dr. Bernardo Reyes: For patients in the community, the treatment of sepsis—and I want to clarify this before I continue answering this specific question. The treatment of sepsis should occur in the hospital setting, unless there are advanced directives stating the contrary. Sepsis is a complex syndrome that requires detail-oriented and timely treatments that is—to say the least—impossible to give in the community and very challenging to be completed in skilled nursing facility. For older adults, especially, and the problem is that those that are the frailest, they don’t show symptoms of sepsis sometimes, making early identification more challenging and therefore, there is a delay on starting the treatment even in the skilled nursing facility or even in the hospital when they arrive.
15:50 Dr. Bernardo Reyes: The basis of the treatment of sepsis is very simple, actually. It’s just fluids through your veins and antibiotics. The quantity of the fluids that you receive depends on the patient’s weight—of course—being cautious for pre-existing conditions such as heart failure. And the antibiotics should be tailored to the potential source of infection, like urine, or your lungs—in the case of a urinary tract infection or pneumonia. And also, you need to consider the pattern of resistance of bacteria to a specific antibiotic in your community. And that’s the other challenging part. So, facilities sometimes hesitate starting antibiotics because of the inappropriate use of antibiotics that have occurred in the community and nursing homes in our country in the years prior. The Centers for Medicare and Medicaid has placed significant emphasis on creating infectious control protocols, not only to prevent infections but also to prevent abnormal use of antibiotics when patients don’t have sepsis.
17:10 Pamela D. Wilson: And so, you mentioned a couple of things that caught my attention and part of this is in your research. But CMS wants to avoid hospitalizations or re-hospitalizations for some conditions and then we have nursing homes who are afraid of prescribing antibiotics. So how do we get the care that these people need? What degree are nursing homes hesitant to send patients to the hospital for suspected sepsis?
17:34 Dr. Bernardo Reyes: Sure. So, CMS is focused now on preventing hospitalizations. As there is a rise in the cost of our healthcare system, we’re trying to avoid unnecessary transfers of patients in nursing homes to hospitals. So, the nursing homes are trying to design treatment protocols that allow them to treat these patients with sepsis only when it’s identified already. Actually, data from the National Center for Health Statistics indicate that sepsis is one of the five top conditions why patients above the age of 85 are hospitalized. Only being surpassed by congestive heart failure, pneumonia, and a urinary tract infection. It’s more frequent than strokes. So, the problem is very common. The infections that include sepsis account for three of the five most frequent reasons why patients need to be transferred to the hospital from a skilled nursing facility
18:44 Pamela D. Wilson: Okay. And Dr., we are going to go out to a break, so I want to come back to that because I know that some hospitals don’t want to re-admit for things like pneumonia but yet if somebody has sepsis, it’s an important thing that should be considered. So, listeners, we are going to continue this conversation coming up after the break with Dr. Bernardo Reyes. Listen to all of The Caring Generation podcasts on my website on The Caring Generation page. This is Pamela D. Wilson on The Caring Generation, live on the BBM global network, Channel 100, and TuneIn radio. Stay with us, we’ll be right back.
21:02 Pamela D. Wilson: This is Pamela D. Wilson, caregiving expert. I’m your host for The Caring Generation on the BBM global network, Channel 100, and TuneIn radio. We’re back to continue our conversation about sepsis with Dr. Bernardo Reyes. So, Dr. what criteria do doctors and nursing homes use for determining if an older adult is likely to have sepsis?
21:56 Dr. Bernardo Reyes: So, I’m going to split that answer in two things. So, the first one is the definition of sepsis has changed significantly and the last one I gave you is the current one. Now, the criteria is what we use because there is no specific test to say these patients have sepsis. There is no blood test. There’s no urine test. So the current data that we have shows that there are several limitations in the current scoring systems that we use to identify patients with sepsis and especially because older adults usually don’t show any of these signs or symptoms.
22:34 Dr. Bernardo Reyes: The current literature suggests, although the quality of the evidence is poor, that a high heart rate, a low blood pressure, and fever are the most sensitive and specific signs and symptoms. The problem is that when you put together these specific scores, the sensitive meaning or the specificity, the ability to identify patients with sepsis occurs very late in the disease process. And the other issue, too, is that your vital signs or your mentation, as you know, as your listeners know already, can occur for a myriad of issues, medications, dehydration. So it’s very challenging to use a specific criteria but if you have to pick one, obviously, an elevated heart rate, a high temperature, and a low blood pressure.
23:32 Pamela D. Wilson: And so caregivers who have parents at home, let’s say, the parent maybe gets pneumonia every now and then or has a urinary tract infection, should they be watching for this high blood pressure or high heartbeat, low blood pressure, fever and then the concern will be, “Well, gosh, do we always show up at the emergency room?” How do family caregivers manage that?
23:53 Dr. Bernardo Reyes: Well, it’s a tricky situation because patients that have—especially when you use the term “My mom looks different today,” and the problem is that they look different or could be looking different for a completely different reason than sepsis, such as dehydration. But again, any infection could lead to sepsis. The most frequent ones that are described in the literature are pneumonia and urinary tract infection. But again, remember dehydration without an infection could mimic sepsis.
24:30 Pamela D. Wilson: And your article mentions a change in conditions and the fact that nursing homes usually don’t take vital signs every day. So for caregivers who want to keep loved ones at home and not put them in a nursing home, should they get into a pattern of taking vitals every day so that they know if something changes?
24:49 Dr. Bernardo Reyes: That’s a very, very interesting question. So, the concept of change in condition is not mine actually, it’s my mentor’s, Joseph Ouslander. The change in condition is the base of a quality improvement program called INTERACT, that is being used in numerous nursing homes in the country and actually around the world. The change in condition is very sensitive. Meaning, if you don’t have a change in condition, it’s less likely you’re septic. So if your parent looks different, there’s a reason for you to keep an eye on them. That’s common sense. Now, the problem is that, as I mentioned before, your vital signs could be altered because of many other reasons.
25:35 Dr. Bernardo Reyes: So what we’re trying to do is we’re trying to find ways to determine what is a meaningful change in vital signs. But the literature still is very scarce. In fact, currently, we’re working with a major company that managed the electronic medical records and have all the nursing homes in the country, trying to identify patterns of changes on patients in nursing homes before they get transferred to the hospital. So, I’m sorry, I don’t have a good answer for you but obviously, keeping an eye on your parents is the best way, knowing what their baseline is so you can identify how significant changes are.
26:18 Pamela D. Wilson: And you have a very unique position. So you are in the hospital, but you are also in the nursing homes. So we have COVID-19 today which is causing all kinds of problems. People can get pneumonia from that. Hospitals may not want patients from skilled nursing and then if they go to the hospital, skilled nursing may not want them back. How do we manage that?
26:38 Dr. Bernardo Reyes: You’ll always have to think about—that you have to do what is the best for the patient and you have to advocate for your loved one. And that’s what I tell all my patients and the family members of my patients is that the best nursing home is the one that you can be an advocate for your loved one. The challenge right now is that—as you know—hospitals are getting full. The bed capacity, even in Florida, in a state like Florida, it’s actually reaching alarming levels. And you don’t want to admit somebody that doesn’t need to be admitted. So if you get somebody that is asymptomatic but was diagnosed with COVID or has a little cough but no need for oxygen, no need for treatment that needs to happen in the hospital, you want to send that patient back where the patient came from, even home or the skilled nursing facility. For me, it’s obviously the skilled nursing facility feels overwhelmed about taking over the care of a patient that is COVID-positive. Not only because of the risk of infecting other members or their caregivers or other patients in the skilled nursing facility but also because the amount of care that these patients could require is significant.
28:01 Pamela D. Wilson: Okay, and one last question. So if an elderly person is diagnosed with sepsis, is it likely to come back?
28:08 Dr. Bernardo Reyes: Yes. Actually, approximately a year ago, we finished a quality improvement project trying to avoid readmissions of older adults after they get discharged from the hospital. And we acquired a lot of information from that quality improvement project and we’re looking now this summer at the reasons why people get readmitted. But patients with sepsis, pretty much when they get discharged, one of the most frequent reasons why they get readmitted is sepsis or sepsis-related complications.
28:48 Pamela D. Wilson: Okay. Dr. thank you so much for joining us. Thank you for everything that you do. You have amazing experience and I so appreciate it. Listeners, this is Pamela D. Wilson, your host on The Caring Generation, live on the BBM global network, Channel 100, and TuneIn radio. Stay with me, we’ll be right back after this break.
31:27 Pamela D. Wilson: This is Pamela D. Wilson, caregiving expert. I’m your host. You’re listening to The Caring Generation radio program for caregivers and aging adults, live from the BBM Global Network, Channel 100, and TuneIn radio. The Caring Generation focuses on the conversation of caring, giving us permission to talk about aging, the challenges of caregiving, health, and everything in between. Let’s return to the topic of how to become a legal guardian. In the program opening, we talked about events that might happen, that means that an elderly parent may need a court appointed guardian. Let’s assume that you intend to become a legal guardian for your mom. Two situations can happen. Your mother can be in total agreement along with your father, brothers, and sisters, this means that the guardianship hearing will be uncontested.
32:14 Pamela D. Wilson: If enough substantiation is presented at the court hearing, the motion for a court appointed guardian will likely be granted by the judge. But the opposite can happen. Your mother may disagree, as well as your father, brothers, and sisters. This means that you have a contested guardianship hearing on your hands. Add to this, the fact that your mom didn’t create power of attorney documents before her Alzheimers disease advanced. Not having power of attorney documents complicates the situation.
32:45 Pamela D. Wilson: Your father, brothers, and sisters, can hire an attorney to disagree with the need for you to become the court appointed guardian. In the State of Colorado, the State will also appoint an attorney for your mother. If you firmly believe that appointing you is in mom’s best interest, I do recommend hiring an elder law or a probate attorney to support you in how to become that legal guardian. So that means that three attorneys are involved, your family, yours, and your mom’s. I’ve had situations where I was able to represent myself without an attorney. This saved my client’s money but I had years of experience already as a court appointed guardian attending multiple hearings and knowing how to present information. In other cases where the family situations were difficult and there was an attorney on the other side who was vicious, I always hired an attorney who could represent me so that the information was presented equitably from both sides. As a court appointed guardian, I was very fortunate, I worked with a lot of excellent elder law, probate, and estate planning attorneys.
33:54 Pamela D. Wilson: Let’s add one more scenario to this mix of how to become a legal guardian, which is a situation of an elderly parent who lives alone in unsafe conditions and refuses help. Minor incidents may already have happened. Like the stove being left on, a fire starting, a sink flooding the basement. Maybe mom wandered out of the house to walk the dog, she got lost, and she was returned home by a friendly policeman who called you and suggested that you do something. But he didn’t tell you what to do.
34:25 Pamela D. Wilson: Mom may have been taken advantage by salespeople knocking at her front door, offering a new roof that she really didn’t need but she gave them $15,000 anyway. Mom could have multiple health conditions, can’t remember to take medications, or attend doctor appointments. You see that the risks are growing day by day, but that something dangerous is probably going to happen. All of this worry, it keeps you up at night. Even though you and your mom were never really that close, you feel a responsibility to become a legal guardian.
34:56 Pamela D. Wilson: Do any of these scenarios sound familiar? Is this your mom, dad, or a family situation, saying, “We don’t need any help,” but posing a serious risk? The next step in how to become a legal guardian is gathering information for the guardianship petition. If you become the legal guardian—or if you want to—you are the petitioner. My recommendation is always to schedule a neuropsychological assessment to substantiate this medically. If your parents see a primary care physician or a geriatrician, they can give you an idea of where they think your parent’s memory is going to go on this. But a neuropsychological evaluation is usually lock-tight for the court.
35:37 Pamela D. Wilson: So the problem is though if your parent hasn’t seen a doctor in a while, and they don’t like doctors, how do you get mom or dad to the appointment? How do you get them to participate? What I have found is that my clients—who are a mom and dad—will usually participate when you get them to the appointment. So, if there were disagreements, sometimes I would arrange for somebody else to take my client to the appointment. In all cases, you rarely sit in on that appointment because there could be a conflict of interest on the part of someone saying that you sat in during the appointment and you influenced the outcome that said that you should be that guardian. So you don’t want to be in that position.
36:15 Pamela D. Wilson: Neuropsychologists who know how to write a report for the court system are specialized. If you hire an attorney to represent you, it’s likely that your attorney knows a neuropsychologist who meets that criteria. Sometimes, you can go to the courthouse and ask the court probate officers if they know any neuropsychologists. In a lot of cases though, that appointment is paid for out-of-pocket, it can be expensive, it can be several thousand dollars. It can give you a little bit of sticker shock, but it is well worth the effort to have that evaluation completed and submitted with the guardianship petition.
36:54 Pamela D. Wilson: Other information to support how to become a legal guardian might include police reports of mom being lost. Dad having a car accident. Bank records showing poor financial management. Contact with adult protective services who may have received a report and contacted you. Then, as a son, a husband, a wife, if you desire to become that guardian, you have to prove suitability. If you have a criminal background, you’re not good at managing money—which might put in question whether you should have mom or dad’s finances—if you have a poor credit score, other issues like documented drug abuse, it’s pretty unlikely that the court will appoint you.
37:32 Pamela D. Wilson: They may appoint another family member or a professional, that’s a conversation that your attorney should have with you. Most people who are petitioning for guardianship have to provide a background check and a credit report. How to become a legal guardian, can include taking a guardian class, learning how to create a care plan. You have to create financial reports, initial and annual reports. It really is a serious responsibility because the appointment lasts for life.
38:01 Pamela D. Wilson: We are going to continue to talk about more on this subject, after the break. You can follow me on Facebook, and you can also join my online caregiver support group on Facebook, it is called The Caregiving Trap, you go to my Facebook page, which is PamelaDWilson.page, and you can find The Caregiving Trap, and you can put in a request to join. There are a lot of wonderful caregivers there—believe it or not, from the entire world—who share their stories and their experiences, who ask questions, other caregivers answer, it is a great group, positive group, there’s no judgment in there. And it solves a lot of issues that caregivers are experiencing. You can also visit my website, my caregiving blog, Caring for Aging Parents is on there, along with my book, and a lot of other helpful information. This is Pamela D. Wilson, you’re with me on The Caring Generation, coming to you live, from the BBM Global Network Channel 100 and TuneIn Radio. Stay with me, we’ll be right back, with our conversation about guardianship.
41:21 Pamela D. Wilson: This is Pamela D. Wilson, caregiving expert, author, and speaker on The Caring Generation, coming to you live from the BBM Global Network, Channel 100, and TuneIn radio. Information for corporations and human resource departments about caregiving training and education on-site or online through video conferencing, caregiver webinars, and virtual training programs is on my website at PamelaDWilson.com.
41:47 Pamela D. Wilson: The next step in how to become a legal guardian is creating the court petition, a request for a hearing, notice of hearing, and all of the related documents. How do you know what you’re supposed to complete? If you’re in a contested court appointed guardian situation, the elder law probate or estate planning attorney that you hire will take care of all of this paperwork. If you are in an uncontested situation, I recommend visiting the probate court where you live and asking for instructions. Many probate courts have instructions online with all of the forms so that families can complete the guardianship process on their own.
42:28 Pamela D. Wilson: If you follow the instructions, it is very easy to follow the process. If you have questions about how to fill out the forms, the probate courts can answer that, but they can’t really give you legal advice. When in doubt, some professional fiduciaries serving in these roles might be able to help you create the court filing. When I was a court appointed guardian, I filed many of my own forms, including some initial petitions, annual guardian reports, and I also helped my clients do this. I was familiar with many of the forms just because I was a legal guardian for many, many older adults. I helped a lot of family members through this process—do know though—that it differs by state.
43:10 Pamela D. Wilson: If you look for somebody to help you, make sure that they are qualified. Ask questions about whether they have served as a court appointed guardian or a conservator, how many years they’ve done this. Ask how many wards—it’s the term for the person under guardianship that they are responsible for. You don’t want to take any risks in hiring somebody without the experience to help you because errors can cause serious issues when you’re going through that court process.
43:42 Pamela D. Wilson: The next step in moving forward with how to become a legal guardian is the court appointing a visitor to visit your parent and give an opinion, and the attorney to represent your parent. The goal of this is to ensure that the process is very thorough and fair. You shouldn’t take the process personally. It’s not that you’re a bad person trying to take advantage of a parent, but because this does give a lot of rights to the guardian, the court has to take it very seriously.
44:08 Pamela D. Wilson: In the role of that court appointed guardian, you have sole decision-making power about significant decisions. Like where your parent will live. How money is spent, medical and treatment decisions, and so on. It doesn’t mean though that you can take control of your parent’s life in a way that would contradict what your mom or dad would have wanted if they could be making those decisions. There are best interest and substituted judgment standards that apply to the court appointed guardian. You also can’t spend money on items, not for the well-being of your parent. I have been in court where the judge was asking a son or a daughter who was the guardian why they bought a car, or why they spent $20,000 on a cruise for the entire family. Were these really necessary expenses that contributed to mom or dad’s well-being? What do you think? No.
44:57 Pamela D. Wilson: In some cases, when decisions are significant like moving an elderly parent out of a home, selling a home, it’s good to petition the court to gain approval for those actions, and similar to that original petition, you will give reasons for why these choices are being made, and why they should be done. If you’re the conservator, you have to manage annual budgets, have a financial plan, have a plan for what to do when the money runs out, you’ll have to state reasons for why money is being spent, keep receipts, all of that.
45:31 Pamela D. Wilson: Other questions that family guardians ask is if they can be paid for the time devoted to being the guardian or the conservator. The answer is yes if it’s fair and in line with what a family guardian in a similar situation would pay him or herself. In those situations, also to protect yourself, you can submit requests to the court for payment to yourself, so that there’s no question about you misusing Mom or Dad’s money. All people to whom the original guardian petition was were sent receive copies of all of those documents to ensure transparency.
46:03 Pamela D. Wilson: The goal is, you want to avoid future court battles with families that can happen. When I was a court appointed guardian, I had staff who worked with me and my statement to them was, “Be sure that whatever you’re doing, wherever you do it, you don’t find yourself, or place our company on the front page of the newspaper.” Family guardians and professional guardians are under a lot of scruty, and they should be. Being responsible for the care and the financial management of a person, an elderly parent, another adult is a very serious responsibility.
46:35 Pamela D. Wilson: So let’s recap some of the steps we’ve talked about—about how to become a legal guardian. You confirm that a guardian is necessary for your aging parent. Mom or Dad might disagree with you. You’ve hired an elder law, a probate, or estate planning attorney to represent you in court and help you file that petition. Or if it’s not a contested hearing, you’re moving it through this process on your own without an attorney. You got a report from a court appointed neuropsychologist. You have substantiation for the petition to prove without a questionable doubt that your parent needs a guardian. The court visitor visited and gave his or her report to the court. The attorney appointed by the court visited your parent and they can disagree or agree with your appointment.
47:19 Pamela D. Wilson: So, let’s talk for a moment about that, and how to work with attorneys so that you can avoid surprises. Attorneys bill by the hour and likely by time increments of five or 10 minutes. Every email you send, every phone call you make is billable time. It’s up to you to direct and manage the attorney about what steps you want him or her to take, and how he or she should represent you. In this situation, you are the boss. Be wise with this time, because it is money. It’s your money. It’s your parent’s money. And, in situations where families disagree, sometimes all of the emotions take everything off-track. And honestly, tens of thousands of dollars are spent over emotional issues that could be dealt with in a very different manner. So, while going to court for guardianship is necessary, the way that you manage that process is important. So that you are not wasting family money on arguing over differences and things like that. You can be efficient.
48:31 Pamela D. Wilson: More on “how to become a legal guardian, we’ll continue with that after this break. Practical tips and support for caregivers are in my book, The Caregiving Trap: Solutions for Life’s Unexpected Changes. Information about that book is on my website at PamelaDWilson.com. You can also check out my free caregiving library. I have one for family members and for professional caregivers. Log on, check out the articles there. They are very helpful. I’m Pamela D. Wilson, caregiving author expert, and speaker. This is The Caring Generation, live from the BBM Global Network, Channel 100, and TuneIn radio. Stay with me. We’ll be right back.
51:27 Pamela D. Wilson: This is Pamela D. Wilson, caregiving expert. I’m your host on The Caring Generation radio program for caregivers and aging adults, live on the BBM Global Network, Channel 100, and TuneIn radio. Visit my website, PamelaDWilson.com for helpful information, and encourage your human resource department to check out my online one-of-a-kind virtual program for caregivers. It’s called Taking Care of Elderly Parents: Stay at Home and Beyond. If you are hesitant to approach your HR Department, contact me through the contact me button on my website, I’ll be happy to contact your company Human Resource manager for you.
52:05 Pamela D. Wilson: Let’s wrap up with ideas on how to become a legal guardian for an aging parent. Before the break, we were talking about your responsibility to direct the attorney that you hired to do what you wish. That attorney should also consult with you on the process for that guardianship hearing. What questions he or she might ask you? What you can expect? Know that you might also be cross-examined by the attorney appointed for your mom or dad, or even another attorney representing family members who might disagree with your appointment.
52:37 Pamela D. Wilson: Attending a court hearing can be stressful. I know. I have attended many court hearings. The best advice I can give you is to be factual and honest. If you are proceeding with how to become a legal guardian, the assumption is that you are taking this step because you care about your elderly parent. Not that you’re doing this to harm or take advantage of an aging parent. Being a court appointed guardian, it’s a lot of work, it’s a great responsibility. The outcomes and the results of the care for your elderly parent, they’re all on you but know that you can hire support.
53:13 Pamela D. Wilson: Many family guardians hire care managers like myself, who also have the experience of being a court appointed guardian. Those are the best-case scenarios when the child who is the court appointed guardian works, maybe has a family, and is stretched for time. Having that support by way of having a care manager who can help and oversee aspects of care for an elderly parent can give you peace of mind and also, you have somebody to take elderly parents to medical appointments, to manage in-home caregivers, take over a lot of responsibilities. It’s like having a second set of eyes to confirm that you are doing what you said you were going to do.
53:56 Pamela D. Wilson: This way, if there are family disagreements and the potential of future contested hearings, that person can testify in court to substantiate that you are providing the care that’s needed. So, learn as much as you can about the caregiving process, about being a guardian, and what’s required. As I mentioned, contested hearings can be very expensive. You want to make sure that you are the best guardian possible.
54:20 Pamela D. Wilson: Next week, we’re going to talk about a little less serious topic. By the request of caregivers what happens when you get old? We’ll have a lot of humor there. An interview with Dr. Suma Chand. We’re going to talk about how aging adults and caregivers can manage feeling hopeless and depressed—which many are because of the situation with COVID today. Caregivers advocate for your needs. Improve your work-life balance. Ask for the help that you need from your families, from the workplace. Caregiver support, caregiver articles, videos, online programs, all on my website at PamelaDWilson.com. If you have future ideas for programs, which is how I come up with all of these shows, visit my website, PamelaDWilson.com, there is a contact me button that you can click on, and you can send me an email with all of your ideas.
55:10 Pamela D. Wilson: I thank all of you for being caregivers, for the work that you do as a family caregiver, as a professional caregiver. I know that none of this is easy. Do invite your friends and your family members to join us every Wednesday night on The Caring Generation Radio Show. You can listen to past shows and all of the podcasts, I think we’re up to about 50 on my website. This is Pamela D. Wilson, caregiving expert, advocate, author, and speaker. Share this radio program, share my website, Pamela D. Wilson with people that you know. One in four people that you know are caregivers. God bless you all, sleep well tonight, have a fabulous day tomorrow, and a great week until we are back here together again.
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Looking For Answers to Common Caregiving Questions? More Information is in My Caregiving Library in the Section Called Legal and Estate Planning.
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