THE NEED FOR A GUARDIAN

“My mother doesn’t eat properly, when she does try and cook for herself she leaves the stove on, and she’s not taking her medication,” says the gentleman sitting on the opposite side of my desk. “She calls me up in the middle of the night crying. The neighbors called the police a couple of times because she bangs on their door in the middle of the night, dressed only in her nightgown. She just leaves the house and gets lost.”

I ask him if he’s looked into placing his mother in a facility, perhaps an assisted living residence or a nursing home. I inquire as to whether or not his mother is on medication and under the care of a physician.

“I’ve looked into places, and some are very nice,” he begins, with a resigned look and wearied gesture, “but she won’t leave the house. Sometimes she doesn’t even know where she is; last time I was over, she thought I was her brother – who has been dead for six years, by the way – and that my father was coming over any minute to pick her up for a date. Dad’s been dead for fifteen years. She thought she was eighteen years old and living in Hoboken. … She just won’t do what’s right for her. She refuses to get help or let me get help for her.”

This scenario goes on over-and-over again across America. Alzheimer’s disease, Parkinson’s, and dementia – are just a few of the diseases that rob people of their ability to manage their own affairs, judge what is right or wrong, or even realize who they are and where they are.

But simply because a person isn’t conducting their affairs in a manner that is in their best interests does not mean that other family members automatically have the right to make decisions for them. Unless a court has adjudged a person to be mentally incapacitated, being unable to make their own decisions, nobody else can force decisions upon them.

In my example above, the mother is not acting in her own best interest. That’s clear. She’s not taking her medication. She’s not eating properly. She’s leaving the stove on when she does try and cook for herself. She’s wandering out of her house in the middle of the night and getting lost. She’s delusional, and she’s suffers from audio and visual hallucinations.

Clearly, this person needs help. And, the son who has come to see me may be the best person to make those decisions for his mother, now that she is unable to make them for herself. Perhaps the son is the mother’s agent under her power of attorney. In other words, the son has the right to make financial decisions for his mother.

The problem, however, is that the mother does not want to do what is in her best interest. She may have named the son her agent under her power of attorney, but naming a person as your agent does not mean that you have stripped yourself of the ability to make your own financial decisions and living arrangements; it simply means that you have named another person who can make those decisions, too.

If mom doesn’t want to leave her house, the son cannot force her to leave – not unless a court has declared mom to be mentally incapacitated and named the son as her guardian. I always advise people to execute a general durable power of attorney. I tell people that by giving someone else a power of attorney, they may be avoiding the need to have a guardian appointed for them, because someone else will have the ability to make financial decisions for them, if they cannot.

Yet, there are situations for which you cannot fully prepare, and a power of attorney only goes so far. Even with a power of attorney, a guardianship action may have to be instituted to protect individuals who refuse to act in their own best interests because of mental infirmity.

When a person’s mental illness places them in a situation that requires emergent attention, because their behavior threatens their life or the lives of others, I would suggest contacting the County’s adult protective services program, or APS. APS may be able to provide emergent, temporary relief, but for permanent relief, a guardianship must be instituted.