Ignoring the Warning Signs May Put You in Danger
By Hillary S. Josephs
No, this is not the premise of a movie or novel. It is the true story of a family that could have avoided much of the emotional turmoil, possible physical harm, and the expense and loss of privacy they now have to come to terms with as they face a guardianship proceeding for a loved one.
A couple we’ll call Bill & Mary lived together for over 40 years. Now in their 80s and never married to each other, Bill & Mary jointly own a home together, share two investments and separately own assets and real estate. Mary has several children from her prior marriage. Bill has one child from whom he is estranged. During a consultation with Stephanie L. Schneider, Board Certified Elder Law Attorney in August 2015, Mary described some of Bill’s recent behaviors that did not make sense to her:
- refusing to leave the house to go to a restaurant
- accusing her of stealing his money
- refusing to use the air conditioner even during the hot Florida summer months
- refusing to sign checks to pay the real estate taxes on several pieces of land he owned in New York.
Although Bill was not present at the consultation, Stephanie recognized that Bill’s behavior was likely related to a cognitive impairment. Stephanie recommended he see a neurologist. Stephanie also suggested that Bill meet with her to determine if he was sufficiently aware to sign legal documents.
Bill would not agree to consult with any attorney so it was not an option to create an estate and long term care plan through legal documents. Stephanie was able to create estate & incapacity planning documents for Mary (i.e. a Will, durable power of attorney, designation of healthcare and living will). Stephanie created a special needs trust under Mary’s Will to provide an inheritance for Bill upon her death.
Our office heard nothing from Mary for many month. In the interim, Bill did go to a neurologist who diagnosed him with Alzheimer’s (middle stage) and prescribed medication for Bill’s anxiety and anger. Bill took the medication for two weeks and then refused to continue. In January 2016, Bill’s behavior turned violent toward Mary and the police were called to the home. Bill was Baker Acted.
Mary consulted with Stephanie about the options for her to make Bill’s medical and financial decisions. Mary then confided in Stephanie that Bill’s cognitive decline has been going on noticeably for several years and no one had questioned it or recommended that Bill seek medical attention.
Due to the advanced nature of Bill’s cognitive impairment it is necessary to initiate a guardianship proceeding so that Mary will have legal authority to make Bill’s medical, residential, social and financial decisions. Once Mary is appointed Guardian:
- Florida law requires that an attorney represent the guardian.
- Bill’s assets will be placed in a restricted guardianship account. Mary will not be able to access the account without a court order including an order for a monthly budget.
- Some decisions cannot be made without first obtaining Court approval (i.e. selling assets such as real estate or a car).
- Annual accountings are filed with the Court to report how the assets are spent, income earned and the value.
- Many of the documents in the court file are a public record resulting in the loss of Bill’s privacy.
- The guardianship will continue until Bill’s death (or until there is a cure for cognitive impairment) so there will be continuing legal fees.
Seek professional advice if you notice that a loved one, family member, friend or co-worker is showing unusual behavior such as:
- refusing to take medication, or not refilling prescriptive medication
- not grooming themselves
- not paying bills (i.e. real estate taxes), allowing necessary homeowner’s insurance or car insurance to lapse
- refusing to seek medical attention
It may be necessary to consult with an elder law attorney, a social worker, as well as a neurologist. Responding at the earliest possible time is critical so the person can be properly diagnosed and receive immediate medical or mental health services. In the early stages of a cognitive impairment it is possible for the person to be sufficiently aware to execute legal documents which can be an alternative to a guardianship- if they are willing to do so. Don’t miss the window of opportunity that can save you money and maintain your privacy.
Create your estate & incapacity plan before you experience physical, emotional or mental health issues. Anyone over age 18 should have legal documents that name someone they trust to make healthcare and financial decisions when you cannot do so due to illness or an accident, even temporarily. We recommend designating alternate decision-makers in case the people you name are not available or able to serve (are sick or have died).
Avoid the danger in waiting. Proper planning may create peace of mind.
We are your trusted planning advisor through life.℠
Hillary S. Josephs is the Business Development Coordinator at the Law Office of Stephanie L. Schneider PA