As your parents grow older, your foremost concern is making sure that they are comfortable and safe. As long as they can care for themselves and make necessary decisions about their daily and longer term needs, those concerns are eased. But what should you do when an aging patent starts to show signs that they may not be completely capable of taking care of themselves?
Memory Loss in Elders — When Does It Become Cognitive Impairment?
Almost everyone experiences some degree of memory loss as they age. As long as the loss is minimal and does not interfere with an elder’s ability to carry on a normal daily routine and make decisions, it is not cause for significant concern. However, it is important to understand that memory loss is not a normal sign of aging, and one should consult a physician as soon as possible.
If the memory loss becomes more noticeable, it can indicate a more serious problem, such as the onset of dementia or Alzheimer’s disease. There are over 50 different types of dementia. Early diagnosis and treatment can lead to a longer quality of life. You can learn about the signs of memory loss and how to talk to an aging parent about it in an article written by our experienced elder law attorneys at Barron, Rosenberg, Mayoras & Mayoras.
If Your Loved One Does Not Realize or Accept There Is a Problem
Sometimes, elders who begin experiencing memory loss are aware that they need help making decisions. They eagerly work with family members and ask for help making decisions.
At other times, elders are totally unaware that they are having cognitive difficulty and strongly resist any effort by loved ones to address problems related to their well-being, comfort, and safety. We have discovered some elderly age gracefully and some do not. It is not uncommon for an aging parent to resist losing their independence and/or control. They will not listen to family members. This situation can also occur if an elder experiences a medical condition or accident that interferes with the ability to make independent, informed decisions.
If your loved one does not realize that he or she needs help making decisions and all efforts to talk with them have failed, you do have alternatives. If there is an estate plan, there may be a durable power of attorney that authorizes you or another family member to act on their behalf. When there is not a durable power of attorney in place, you can protect your loved one by initiating a guardianship proceeding in probate court.
Guardianship Proceedings in Michigan
A petition for guardianship asks the probate court to appoint a guardian for an incapacitated person and vests authority in the guardian to make decisions for the person relating to health care, living arrangements, and other matters pertaining to the person’s well-being.
Like other states, Michigan has specific laws relating to guardianship proceedings. Probate court judges have wide discretion in the proceedings and take their responsibilities very seriously.
The first determination made by the court is whether the person is unable to make their own decisions. In making that decision, the judge must conclude that the person does not have the capacity or understanding to make or communicate decisions based on a full comprehension of available choices and consequences.
Before a judge takes the significant step of removing a person’s legal right to make his or her own decisions, substantial evidence is presented in the proceeding, including medical and financial records and testimony of family members and others. Sometimes, a judge will appoint an independent physician to examine the elder and submit a report.
If the court determines that appointing a guardian is necessary to provide for the person’s care, the next step is determining who will be appointed. Michigan law specifies priorities in selecting the guardian. If possible, the protected elder’s preference should be honored. Otherwise, the judge will appoint a person according to a list set by statute. The order established by law is:
- Adult child
- Other relatives
- Other appointees (not related)
A person on the list can be skipped only if he or she is unwilling or unsuitable to serve as guardian. Ultimately, the probate judge has the discretion to determine what is in the best interests of the protected person and select the guardian accordingly.
Authority and Responsibilities of a Legal Guardian
A guardian’s authority is governed by the court’s decision. Generally, it includes the ability to make decisions regarding:
- Determining living arrangements
- Addressing needs for comfort and care, including food and clothing
- Obtaining services necessary for the person’s well-being
- Authorizing medical treatment
Guardians are required to submit annual reports to the court. A guardianship can be modified by the court if circumstances change.
Court-appointed guardians generally do not have full control over the protected person’s finances. A separate probate court proceeding, called a conservatorship, is the means through which a judge appoints a conservator to make financial decisions for a person who is unable to make those decisions. For more information, you can read an article written by our attorneys that explains The Interplay Between Powers of Attorney, Guardianships, and Conservatorships.
When You Need Advice About Helping Your Loved One
Guardianship proceedings are serious and emotional family matters. There are times when family members disagree on how to proceed. In any situation involving an aging parent, you want the best possible advice and representation on your side.
Our probate litigation attorneys at Barron, Rosenberg, Mayoras & Mayoras have years of experience handling all aspects of protective proceedings. We will carefully explain all aspects of the process and help you ensure that your loved one receives needed care and attention. Contact us to schedule a free initial consultation.
Since 1970, BRMM has been southeastern Michigan’s trusted source for experienced, compassionate legal counsel on critical, delicate family matters. Learn more about us by reading what some of our thousands of clients say about us.