LaBre on Law

By WILLIAM L. LABRE, J.D.

“I can’t take care of Mom anymore,” she said.  “I love her so very much, but I just can’t do it anymore.”

“What’s going on?”

“She usually forgets to eat unless I feed her.  Sometimes, she forgets where the bathroom is, and there’s a mess on the floor.  She forgets to clean, and the whole house is a mess.  She can’t go anywhere unless I take her.  She doesn’t take her medications unless I give them to her.  She doesn’t call the doctor, unless I do.  The problems go on and on.”

“Have you asked her doctor what is the cause of her behavior?”

“Yes, I have.  He said that it’s a combination of dementia and depression over losing my dad.  She and he had been very close, and she hasn’t gotten over his death.”

“How much time do you have to spend with your mom?”

“Almost all of the time I’ve got.  I’ve got a job, but, sometimes, I need to take time off

from work to take her to the doctor.  After work, I have to make sure she’s fed, then clean her house.  I go home for just enough time to make sure my family is fed, then I have to return to Mom’s to insure that she takes her evening medications.  There’s no time for me, nor time for my husband, nor time for my kids, except for a few hours on the weekends.”

“Would it be easier for you if you brought her to your home to live?”

“Yes and no,” she said.  “I wouldn’t have to drive to her house.  But she is very

demanding.  If I brought her home then neither my husband, nor my kids, would have any time for themselves, either.  At least now they have some sort of life, even if that practically means that they don’t have a wife or mother.”

“What does your mom want?”

“She wants to stay in her own home.  She always talks about Dad, and her memories of him are almost all in that house.”

“Do you think that your mom could get along if there were visiting nurses to help her?”

“Yes, that would work until she would have to go to a nursing home.”

“Have your spoken to her about that?”

“Of course,  but she won’t have any part of it.  She says that she doesn’t need anyone

else in her house touching her things.”

“Did your mom ever give you a power of attorney for her property, or a health care

designation to take care of her?”

“No.  She and Dad spoke about it before he died, but it didn’t happen then, and it hasn’t happened since.”

“What’s her source of income?”

“Between Social Security and her part of Dad’s pension, she receives about $2,500 per month.”

“Have you contacted the Department of Human Services to see if there’s help?”

“Yes, I have.  There is help, but she doesn’t want any part of that either.”

“OK,” I said.  It seems clear to me that you, your family, and your mom would all benefit from an adult guardianship and conservatorship.”

“What does that mean?”

“A guardian is the person who makes personal decisions for your mom.  You decide

where she lives, what doctor she sees, who will provide care, all of the decisions that a parent would make for a child.

“A conservator is the person who handles another person’s money.  Since your mom

owns a house and has income, a conservator would be needed to manage her affairs.

“Before a guardian can be appointed by the court, you would have to establish by clear and convincing evidence that your mom is incapacitated, namely, is unable to manage her affairs, due to physical or mental illness, and that she needs someone to care for her.

“Before a conservator can be appointed, you would have to establish that your mom

suffers from a physical or mental illness, or has disappeared, and that she needs someone to manage her property.

“From what you’ve told me, you should be able to establish those elements.”

“How do I go about establishing a guardianship and conservatorship?”

“You need to file a separate petition for guardianship and conservatorship.  Generally, you should attach a copy of a letter from her physician regarding her diagnosis.  A copy of these documents is given to her and all of her other children.  A lawyer is also appointed to explain her rights to her.  At the hearing, she has the right to either demand a trial or consent to your appointment.  Also, your siblings could object to your appointment and seek appointment of someone else.”

“Trust me,” she replied.  “My siblings have wanted me to be the caregiver ever since Dad died.  Still, do you really think that I have to go through court?”

“No, you don’t have to.  But, if you don’t, there’s no way that you have the authority to take care of her or manage her property.  And, as you said, ‘I just can’t do it anymore.’”