Conflicts in Guardianships and Conservatorships, Part 1: "But I Have a Power of Attorney!"

Posted By Jorgensen, Brownell & Pepin, P.C.

19 May. 2016

When most people think of conflict in a guardianship and conservatorship situation, they think of conflict among the family members deciding who will be appointed guardian and conservator for an elderly parent or other relative who may need assistance. However, there are times when the person may disagree about the need for help.

It is quite common for a person in the early stages of Alzheimer’s or dementia to be physically healthy and be able to move around, and perhaps even drive. Persons in the early stages of Alzheimer’s or dementia generally have “good” days and “bad” days. On “bad” days, when their memory fails, they may become very suspicious of the people trying to help them. They may even believe that the son or daughter they trusted to help them with their finances, and who is actually doing a good job in helping, is stealing from them or hiding things from them. They may have even given their caretaker child a power of attorney to act on their behalf.

However, when suspicion takes over on a “bad” day, the parent may decide to call their financial institution or institutions and tell them that their child is no longer allowed to have access to their account. The financial institution, out of an abundance of caution, will interpret this as a revocation of the power of attorney. So, despite earlier attempts at planning for incapacity, the child is left with no means to assist the parent because the power of attorney is deemed revoked. The parent may strenuously deny that they need any help with their affairs.

The solution to this problem is for the child to petition the court to be appointed conservator for the parent. It is likely that the parent could object, in which case the court may appoint an attorney to represent the parent. The hearing will be “contested” and it will then be up to the petitioner (that is, the child who filed the petition) to present medical evidence (usually in the form of testimony from the parent’s personal physician) that the person really does have cognitive decline and needs assistance in order to successfully be appointed conservator. In some cases, the court may require a neuropsychological evaluation to determine the extent of the parent’s cognitive ability.

Generally, such cases do result in the appointment of a conservator for the parent, but obviously there will be more time and costs associated with such a contested matter. There are also some creative ways to allow the parent to still feel that they are in control of their finances. For example, the court may order that the parent receive a weekly allowance or “mad money” that they can use however they see fit. The amount will be relatively small so as not to diminish the person’s assets, but this may be enough for the elderly parent to feel in control again.

If you have an elderly relative who is experiencing cognitive decline, be aware that the transition will not always be smooth. Alzheimer’s and dementia can produce feelings of suspicion and agitation, and can cause the elderly person to shut out the very people who are trying to help. If this is the situation, our attorneys can sit down with you and determine the best course of action.

To get in touch with a Longmont elder law attorney at Jorgensen, Brownell & Pepin, P.C., please call our office at (720) 809-8310.

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