Question of the Day on ElderCareMatters.com: "Can Guardianship be used as a protective measure, along with orders of protection?"

Answer:  Yes, guardianship is meant to protect the person and property of those who cannot manage for themselves, but it must be used with caution. Guardianship is an extreme form of intervention in the life of a person, because control over personal and/or financial decisions is transferred to someone else for an indefinite, often permanent, period. Once established, it can be extremely difficult to revoke, even if the guardian or the original petitioner believe that guardianship is no longer necessary. If the courts require expert testimony to support the revocation of guardianship, experts may be hesitant to certify that the person does not need guardianship. The right to privacy and independence in determining how to manage one’s own affairs is paramount and should be limited or removed only for the gravest cause.

The law requires that guardianship be used only if it will promote the well-being of the person with disabilities and protect the person with disabilities against neglect, exploitation, and abuse, and encourages development of maximum self reliance and independence.

Orders of protection are defined under the Illinois Domestic Violence Act of 1986, and the Probate Act incorporates the provisions of the IDVA by reference. The Probate Act provides that all IDVA procedures for the issuance, enforcement and recording of orders of protection shall also be available in guardianship cases. Consequently, an order of protection may be joined together with a plenary or temporary petition for adjudication of disability, and a court may enter both orders of protection and orders appointing guardians in the same proceeding.

To find competent elder care professionals who are located near You and can help you with this type of elder care matter, go to: www.ElderCareMatters.com – A FREE online resource to find elder care experts plus elder care information & answers to your elder care questions.

Janna Dutton, Attorney at Law
Founding Partner
Dutton & Casey, P.C.

Chicago, Illinois  60603
312-899-0950
Member of the national ElderCare Matters Alliance, Illinois chapter


Question of the Day on ElderCareMatters.com: "What types of Guardianship are available under Illinois Law?"

Answer:  There are several types of guardianship available under the Illinois Probate Act. It is important that all available options be considered to determine the appropriate form of guardianship for a specific person with disabilities. In each case, consideration should be given to requesting either limited or plenary guardianship. Limited guardianship is used when the person with disabilities can make some, but not all, decisions regarding his/her personal care and/or finances.

The basic forms guardianship can take follow:

  1. Limited Guardianship – used when the person with disabilities can make some, but not all, decisions regarding his/her person and/or estate. “Guardianship shall be ordered only to the extent necessitated by the individual’s mental, physical and adaptive limitations.” A limited guardian makes only those decisions about personal care and/or finances which the ward cannot make. The powers of a limited guardian must be specifically listed in the court order. The ward retains the power to make all other decisions regarding his/her person or estate. Limited guardianship may be used to appoint a limited guardian of the person, a limited guardian of the estate, or both.
  2. Plenary Guardianship – used when the “individual’s mental, physical and adaptive limitations” necessitate a guardian who has the power to make all important decisions regarding the individual’s personal care and finances. Plenary guardianship may be used for the person, the estate, or both.
  3. Guardianship of the Person – used when a person, “because of his disability, lacks sufficient understanding or capacity to make or communicate responsible decisions regarding the care of his person.” The guardian of the person makes decisions regarding the “support, care, comfort, health, education,…maintenance, and…professional services” (such as educational, vocational, habilitation, treatment and medical services) for the person under guardianship who is called a ward.
  4. Guardianship of the Estate – used when the person “because of his disability…is unable to manage his estate or financial affairs”. A guardian of the estate makes decisions about management of the ward’s property and finances.
  5. Temporary Guardianship – used in an emergency situation. Temporary guardianship can last no longer than 60 days and is a means to assure that the person who evidences need for guardianship receives immediate protection.
  6. Successor Guardianship – used upon the death, disability, or resignation of the initially appointed guardian, when guardianship is still needed.
  7. Testamentary Guardianship – used by parents of a person with disabilities and designates, by will, a person who assumes the guardianship appointment upon the death of a parent. The designated person must still be appointed by the court before he/she can serve as guardian. The court will consider the designated person but is not bound by the testamentary designation. It can appoint someone else if the proposed guardian is found to be inappropriate.

To find competent elder care professionals who are located near You and can help you with this type of elder care matter, go to: www.ElderCareMatters.com – A FREE online resource to find elder care experts plus elder care information & answers to your elder care questions.

Janna Dutton, Attorney at Law
Founding Partner
Dutton & Casey, P.C.

Chicago, Illinois  60603
312-899-0950
Member of the national ElderCare Matters Alliance, Illinois chapter


Question of the Day on ElderCareMatters.com: "How does one assess that a person may be in need of Guardianship?"

Answer:  The fact that a person has a mental disability does not automatically dictate a need for guardianship. The test for determining the need for guardianship focuses on the ability of the person to make decisions and to properly communicate decisions once made. Making incorrect or ill-advised decisions on a periodic basis is not the test. Rather, it is an inability to engage in the decision making in the first place which is important. A practical set of questions that may be addressed are as follows:

  1. Does the person understand that a particular decision needs to be made?
  2. Does the person understand the options available in any decision?
  3. Does the person understand the consequences of each option?
  4. Is the person able to properly inform appropriate parties once the decision has been made?

The inability to make sound decisions about where to live, where to work, how and when to seek medical care or other professional services, how to properly care for dependents, and how to purchase items like food and clothing is indication that a person may be in need of some guardianship services.

To find competent elder care professionals who are located near You and can help you with this type of elder care matter, go to: www.ElderCareMatters.com – A FREE online resource to find elder care experts plus elder care information & answers to your elder care questions.

Janna Dutton, Attorney at Law
Founding Partner
Dutton & Casey, P.C.

Chicago, Illinois  60603
312-899-0950
Member of the national ElderCare Matters Alliance, Illinois chapter


Question of the Day on ElderCareMatters.com: "What is the difference between a Power of Attorney and a Guardianship?"

Answer:  A power of attorney is a legal document signed by you that grants another individual power to act and make decisions on your behalf. It may be general or limited to specific matters, such as finances or healthcare.

A guardianship, on the other hand, is a power granted by a court at the request of a third party to take control over your person, with or without your prior or current consent.

Generally speaking, a guardian has the same powers over his ward as a parent has over a minor child, unless those powers are specifically curbed by the court that granted them.

A power of attorney is generally preferable to a guardianship. Powers of attorney can be setup quickly and inexpensively and allow you to choose who will have powers over you, while guardianships can be long and expensive to put in place and leave the choice of a guardian in the hands of the court.

To find competent elder care professionals who are located near You and can help you with this type of elder care matter, go to: www.ElderCareMatters.com – A FREE online resource to find elder care experts plus elder care information & answers to your elder care questions.

Janna Dutton, Attorney at Law
Founding Partner
Dutton & Casey, P.C.

Chicago, Illinois  60603
312-899-0950
Member of the national ElderCare Matters Alliance, Illinois chapter


Question of the Day on ElderCareMatters.com: "Help! We need some advice about personal budgeting and bill paying for my parents, who are in their early 70’s. My father is a dentist and still works and mom maintains the home, which is a place that my parents have been renting for awhile. They spend far more than they bring in every month, charge too much on their credit cards, and have a very small retirement account. Yet with all these “tell tale” signs, they still don’t see that they have a financial problem. What should my sister and I do to help our elderly parents “see the light”?

Answer:  This is a tough and not uncommon situation.  Your parents may be “in denial” about their situation or they may be perfectly aware but fatalistic – that is, “we can’t do anything about our situation so we might as well live our lives and the kids will take care of us when the time comes.”  Of course, they may truly not understand the consequences.  You don’t mention whether this is new behavior or if your parents have always lived beyond their means.  Reading between the lines, I’m guessing that this is more “business as usual” than not since your parents don’t own their home, have a “small” retirement account despite your father’s profession, and seem to be carrying a credit card balance.  If that’s the case, the situation is especially tricky, because their “system” has worked for them up to now and they may simply assume that will continue.  If, on the other hand, this is new behavior, it may be an indication of cognitive decline and the best place to start may be to take each of them for a thorough medical check-up. 

One way to begin to address this is for you and your sister to sit down with your parents and have a discussion about where and how they would like to age and the resources they have available to them to facilitate that plan so that the two of you can be sure that you know their wishes and can try to follow them.  After having that general discussion, I’d suggest that your transition the discussion into allowing the two of you to document what they have and where it is “just in case something happens to them suddenly” and you have to step in to their shoes.  As a part of this process, you should eventually be able to identify their income, expenses, assets and liabilities.  The next step would be to forecast a couple of scenarios and show them what will happen if……  In other words, if nothing changes, they will run out of money in X years.  Or, if one of them needs care, they will run out of money in Y years.  Perhaps you can then use this as a starting point for discussion of some changes they can make in their spending habits.  I call this process developing a family transition plan.   I have an outline of all of the items that should be included in this “family transition plan” and if you email me using the contact information provided I will be happy to provide it to you.  In general, the more dispassionate and non-judgmental you can be, the better the discussion will go.  I find when I’m working with families like yours that working through “the math” is often the best way to change behavior. 

To find competent elder care professionals who are located near You and can help you with this type of elder care matter, go to: www.ElderCareMatters.com – A FREE online resource to find elder care experts plus elder care information & answers to your elder care questions.

Sheri Samotin, President
LifeBridge Solutions, LLC
Naples, Florida  34108
239-325-1880
Member of the ElderCare Matters Alliance, Florida chapter


Question of the Day on ElderCareMatters.com: "Can respite care be used on a regular scheduled basis, if the primary care-giver works outside the home Monday- Friday?"

Answer:  It depends what you mean by “respite care.”  If you mean this in the most general way, that is, finding an alternative source of supervision and assistance for your loved one while you are at work, then you can certainly do that on a regular scheduled basis.  You might arrange for a caregiver to come in to your home, or you might find an adult day center in your area.   Many adult day centers will provide transportation between the client’s home and the center, and they typically provide one or more meals each day.  In both of these cases, the client or family will need to pay for these services as they are not covered by Medicare.  If the client has long term care insurance, these services are typically covered expenses under the terms or the policy.  Some adult day centers offer a sliding scale payment structure or are subsidized by local or state governments.   In some states, clients who are covered by Medicaid are also eligible for services in the community on a regularly scheduled basis as part of a “diversion” or “waiver” program where the goal is to keep these individuals out of nursing homes which are generally more costly.  However, since Medicaid is a state run program, you need to become familiar with what is available in your state.

To find competent elder care professionals who are located near You and can help you with this type of elder care matter, go to: www.ElderCareMatters.com – A FREE online resource to find elder care experts plus elder care information & answers to your elder care questions.

Sheri Samotin, President
LifeBridge Solutions, LLC
Naples, Florida  34108
239-325-1880
Member of the ElderCare Matters Alliance, Florida chapter


Question of the Day on ElderCareMatters.com: "My mother is 90 years old, has memory loss issues and is pretty frail. She has been in assisted living since 2003. She has three children and one has her power of attorney. My mother has not been handling her own business affairs since 2003. During that period, the son with the POA has made major decisions independent of the other two children and sometimes against their wishes. He will give us yearly statements from the accountant. Overall my mother seems well cared for at the Assisted Living facility and as happy as can be expected. My mother has a sizable estate of over a million dollars. I have been reading about POAs and discovered that things like gifts are not within the scope of the POA. How much authority does the POA have to make decisions about the use of my mother's funds? Since at her passing my mother's estate will be shared among the three of us, my sister and I feel that we should have some input into matters that effect her funds. Are we wrong? How can we force our brother to include us?"

Answer:  This type of question comes up frequently and the answer depends upon the details of the Power of Attorney document that your mother signed back when she had capacity.  Each state has its own standards with regard to the construction of durable power of attorney rights, but even within that variation, it depends upon what the lawyer who drafted the agreement did or did not include.  If your family was my client, I would advise your brother that it is always best for the person who is serving as POA to be as transparent as possible in performing his duties, but in the end of the day, it is up to that person (the POA) to manage your mother’s affairs in accordance with the POA document and his best judgment.  While you can’t “force” your brother (the POA) to include you and your sibling in decision-making regarding your mother’s affairs, you can request that he does so.  Perhaps you can suggest that the three of you hold a family meeting (either in person or by phone) to discuss things.  If you are concerned that the POA will refuse or that the conversation might quickly become unpleasant, you might want to suggest that the POA engage an objective third party to facilitate the meeting.  This person’s fees would be paid for either from your mother’s funds or equally by the three of you.  The third party could be the attorney who drafted the original agreement, another attorney, a family transition coach, or any other neutral party with skill and experience in such situations.

To find competent elder care professionals who are located near You and can help you with this type of elder care matter, go to: www.ElderCareMatters.com – A FREE online source to find elder care experts plus information & answers about a wide range of elder care matters.

Sheri Samotin, President
LifeBridge Solutions, LLC
Naples, Florida  34108
239-325-1880
Member of the ElderCare Matters Alliance, Florida chapter


Question of the Day on ElderCareMatters.com: "Even though my parents insist they don’t need my help, I can see that they are struggling to manage their daily bills, paperwork, and medications. They insist that they are perfectly capable of handling their finances and their pills and don’t see a need for my assistance. How do I help them get their affairs in order without offending them or making it seem as if I am trying to take over and run their lives?"

Answer:  The truth is that acknowledging that you need help with the business of life is really, really hard for most seniors.  If they come to the point where they need your help, they are confronted with their own limitations.  And those limitations won’t “get better” in most cases.  Deep down, your mom and dad know that this is the beginning of the end of their independence as they have come to know it. 

Here are some tips on how to take charge without taking over.

  1. If possible, do the tasks alongside your mom and dad rather than doing it for them.  While this approach might take longer than doing it yourself, you allow them to retain some self-esteem by letting them take the lead.
  2. Let your mom and dad tell you what aspects of a particular activity they needs your help with, and if possible, try to limit your assistance to just those things, at least for now.  Of course, if your mom and dad don’t have a realistic picture of what they can do for themselves, you will need to gently find a way to help them see your perspective.
  3. Be respectful, and ask permission before you just jump in.  For example, when you take your parents to a doctor’s appointment, don’t just assume that they want you to come into the examining room with them.  Instead, ask them if they’d like you to be there the whole time, or if perhaps you can just be called in toward the end of the visit to make sure that YOUR questions are answered.
  4. Set up invisible safety nets.  For example, if you come every Sunday and set up your mom’s medications in a weekly medication management system, you can have some expectation that she will take the correct medications at the right time.  But it wouldn’t hurt to also have a way of checking that once or twice during the week.  This might take the form of a medication management visit by a home care company or trusted friend or relative or perhaps daily medication reminder phone calls from you.
  5. Make a distinction between safety and everything else.  When your mom or dad’s safety is on the line, you might just have to take charge by taking over.  On the other hand, if you’d just prefer that something be done a certain way or at a certain time, there might be an opportunity to loosen the grip a bit.

Sometimes, no matter how you approach the situation, you’ll find yourself in a confrontation with your mom or dad over how to best care for them.  At these times, you and your parent might find it helpful to talk with an objective third party such as a family transition coach who can shed new light on the situation.  Your job as your parent’s caregiver is to keep them safe, comfortable, and happy.  As long as you keep that in perspective you should have no trouble taking charge without taking over.

To locate competent elder care professionals who are located near You and can help you with this type of elder care matter, go to: www.ElderCareMatters.com – A FREE online source to find elder care experts plus information & answers about a wide range of elder care matters.

Sheri Samotin, President
LifeBridge Solutions, LLC
Naples, Florida  34108
239-325-1880
Member of the ElderCare Matters Alliance, Florida chapter


Question of the Day on ElderCareMatters.com: "What are the steps necessary to obtain Guardianship / Conservatorship for my mother who is elderly and suffering from Alzheimer's disease?"

Answer:  This will depend on laws of the state in which your mother resides.  However,  a doctor’s report will be needed to show that your mother is incapable of managing her own affairs.

To locate competent elder care professionals who are located near You and can help you with this type of elder care matter, go to: www.ElderCareMatters.com – A FREE online source to find elder care experts plus information & answers about a wide range of elder care matters.

John E. Settle, Jr., Esq.
John E. Settle, Jr., Attorney at Law 
Bossier City, Louisiana  71111
318-742-5513
Member of the ElderCare Matters Alliance, Louisiana chapter


Question of the Day on ElderCareMatters.com: "Is there a form that would spell out my wishes for my care if I become disabled physically or mentally?"

Answer:  A health care power of attorney would be important if you became mentally incompetent–authorizing an agent to make health care decisions for you.

To locate competent elder care professionals who are located near You and can help you with this type of elder care matter, go to: www.ElderCareMatters.com – A FREE online source to find elder care experts plus information & answers about a wide range of elder care matters.

John E. Settle, Jr., Esq.
John E. Settle, Jr., Attorney at Law 
Bossier City, Louisiana  71111
318-742-5513
Member of the ElderCare Matters Alliance, Louisiana chapter


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