Long-term care is an emotional issue for most families. Many seniors don’t make any plans because they don’t want to think about being incapacitated or they imagine that loved ones will take care of it in the way they would want so they don’t need to do anything. However, when the time comes, they may not be happy with their family’s decisions. Similarly, family members may be left to struggle with balancing the need for care with their loved one’s wishes.
Conflicts over providing care for seniors may arise well before the person needs around the clock care. For example, when is it okay for family members to take away the car keys? Hire people to provide in-home assistance against the senior’s wishes? Or push them to sell the house and move to an assisted-living facility? Eventually as we age, most of us will need help, but we also want to maintain our independence as long as possible.
To avoid disputes, it is important for seniors and their families to communicate effectively about the situation and be proactive.
For seniors, discuss your wishes and plans with loved ones well before you need care. Accept that you will need help at some point and be willing to compromise so that your family feels more secure in your well-being. Execute appropriate documents such as a power of attorney, health care proxy, living will and trust. Choose people you trust to implement your wishes.
Family members should also be willing to discuss compromises and find the least intrusive methods for safeguarding their loved one. Be respectful of their wishes and keep conflicts focused on matters that implicate their health and safety.
Unfortunately, if the senior has deteriorated to the point that he or she is not able to take care of himself or herself and refuses help, family members can petition for appointment of a guardian. This is a serious step and requires providing clear and convincing evidence of the need for a guardianship. Specifically, the law states:
(a) The court may appoint a guardian for a person if the court determines:
1. that the appointment is necessary to provide for the personal needs of that person, including food, clothing, shelter, health care, or safety and/or to manage the property and financial affairs of that person; and
2. that the person agrees to the appointment, or that the person is incapacitated as defined in subdivision (b) of this section …
(b) The determination of incapacity shall be based on clear and convincing evidence and shall consist of a determination that a person is likely to suffer harm because:
1. the person is unable to provide for personal needs and/or property management; and
2. the person cannot adequately understand and appreciate the nature and consequences of such inability.
Guardianships are necessary at times, but families should try to take steps early on to avoid that possibility.
Ultimately, seniors and their family members may need professional guidance. An elder law mediator can help families resolve disputes and recommend the assistance of counselors and other mental health professionals. An attorney may offer advice on the best way to protect a party or discuss whether a guardianship proceeding is appropriate.
If you are a senior interested in taking control of your long-term care decisions or a loved one concerned about a senior’s ability to make decisions, contact me for a consultation.
