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Obtaining Guardianship for Both Parents:  A Bittersweet Victory  

Posted by Anthony Serra | Jun 12, 2018 | 0 Comments

Yesterday I left court with mixed emotions.  I was glad that I was successful in obtaining guardianship in favor of my two clients (a brother and sister), but at the same time saddened by the fact that they had to file guardianship for both their parents.  It's true - - in this case, both mom and dad struggle with dementia and could no longer manage their own affairs.

While it is a bit uncommon, it is not that unusual to see both your parents suffer from some level of diminished capacity, especially as they enter their 80s.  In this case, both parents were 88 and the mom was much more compromised than the dad.  However, for the past several years, dad was able to care for his wife and hold things together pretty well.  But over the past year or so as dad's mental status began to decline, dad was no longer able to care for himself, or be the caregiver to his wife, despite insisting he was still able to do so.  Signs of financial exploitation, poor hygiene, unattended medical issues and lack of adequate nutrition, coupled with the recent revocation of dad's driver's license, were all clear indicators that the status quo could no longer be maintained. The delicate balance had tipped in the other direction.

When I asked the son whether he has taken his parents to visit care facilities, he told me had and that after one such visit, his dad responded:  “Boy, that sure was a nice place.  Will be great once I'm ready to retire!”  Of course, the dad has been retired now for nearly 25 years!  But therein lies one of the problems:  People age and grow needier, but they themselves don't always see things that way.  And it's understandable that someone raised back in the 30s and 40s, perhaps during the years of the Great Depression, who values independence and self-sufficiency will have difficulty admitting they now need help and are no longer independent.  The transition from independence to dependence can be very challenging.

So, I felt real sympathy for my clients who were left with no alternative but to petition the court and have both their parents declared incapacitated in order to protect them from their own limitations and vulnerabilities.  That's not an easy thing to do.  It is difficult enough to see one parent fade away with Alzheimer's disease, but to have both parents succumb to this awful condition is devastating.  I'm sure it was very painful for them to see their mom and dad, at one time two of the strongest and most able-bodied people in their lives, sitting in court like two frightened sparrows having little, if any, awareness of what is happening around them.

Guardianship is a remedy of last resort.  Other, less restrictive, approaches should be exhausted before resorting to guardianship.  Having a General Durable Power of Attorney and Living Will (Advanced Medical Directive) in place are good ways to minimize the likelihood you would ever need to declare someone incapacitated.  But sometimes, even with a valid Power of Attorney and Living Will in place, as was the case here, guardianship may still be a necessary step in protecting those who are most at risk for abuse and self-neglect.

About the Author

Anthony Serra

Tony Serra is a passionate advocate, especially for the elderly, disabled and those of modest means who need the services of an experienced and caring attorney. For more than 30 years, Tony has been helping common, everyday folks navigate their way through life's turbulent waters.  Through innovation and utilizing modern technology, Tony and his law firm are now able to offer quality legal services that at one time were prohibitively expensive, at a fraction of the cost. If you need basic legal services, such as a Will, Power of Attorney, Living Will, Special Needs Trust, real estate transactions, uncontested guardianship pleadings and much more, please visit our website and on-line legal services platform.   You will be pleasantly surprised by what we offer and glad you did!  

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