Someday You'll Be a "Person in Need of Protection"

Two realities of our world are longer physical life-spans and an epidemic of Alzheimer's and other diseases attacking our cognitive capabilities.

That makes guardianships and conservators a growth industry. It means states, grateful for what these folks do, need to facilitate their work, but also closely monitor the process. 

A tough but common dilemma is how to help our parents, siblings, spouses, and friends whose cognitive abilities are slipping away. 

When does Dad's driving slip from a family joke to a serious danger to him, us, and innocent strangers? When does Mom's carelessness about money warrant discussion of a conservator handling her finances? How many long-expired food items in Aunt Sally's refrigerator signify a real need to protect her health – and what the hell do we do?

It's an impossible set of interlocking puzzles: what to do is rarely clear; it can be challenging to convince Aunt Sally, and maybe overcome her paranoia (and your lifelong deference to her will) without losing her trust; and as we weigh her desire to live independently (emotional or spiritual needs) against her need for assistance (physical well-being), we must also consider how a court-appointed guardian or judge will evaluate our decisions. 

In the nightmare cases, relatives discover that a court-appointed conservator and guardian, and lawyer, have taken control of Sally's life and finances, putting her somewhere, and (sometimes) freezing out family and friends. Well-documented abuses led New Mexico (thanks largely to Chief Justice Charlie Daniels) to initiate reforms, somewhat opening up the process to public view.

Delay in taking the keys away or removing that out-of-date food can and will be used against us. Lawyers acting as guardians ad litem, and corporate conservator/guardians, will look at everything very, very carefully – as they should, to safeguard against elder abuse. What mix of greed and genuine concern about Sally motivates each of these professionals in a given case is known only to his/her conscience. But judges rely on them often, and tend to trust them. 

In one local case, the guardian and guardian's lawyer fought tooth and nail to maintain control of my client's stepmother, and even testified that at a meeting they'd seen food on his tie. (Damn, if that were determinative, I'd never have gotten hired for anything!) His lifelong love of his stepmother and his PhD in counseling were no match for that spot on his tie (and his delay in traveling from California to put his willful stepmother into some institution). 

Sadly, we must face these ticklish matters honestly – and early. Doing otherwise increases the risk that “the system” – in a vicious profit play or out of genuine (if sometimes misplaced) concern – might take control of our lives and separate us from loved ones. Each wrong move we make, each procrastination, might someday be viewed in the harshest possible light in some windowless courtroom. Our family members may love us and want the best for us; but judges have seen so many family members rip off siblings and parents that a son or daughter might face an uphill struggle to help us. 

This means taking what preemptive action we can. For example, Sally could execute a Power of Attorney, partly to encourage the court to appoint as guardian a trusted niece, not a corporate stranger; but don't wait 'til she's largely 'round the bend, or she'll lack legal capacity to sign a POA. 

So carpe diem.

                                                         -30-

[The above column appeared this morning, Sunday, 22 September 2019, in the Las Cruces Sun-News, as well as on the newspaper's website and on KRWG's website KRWG's website.  A spoken version will shortly be avilable at the KRWG site, and will be aired during the week on both KRWG and on KTAL (101.5 FM / or stream at www.lccommunityradio.org)]

[First of all, I hope to supplement this column at a later date with more specific and helpful advice on what folks can do with regard to these matters.  I'm no expert, but I can ask some lawyers who specialize in this kind of work.]

[This column was sparked by a recent afternoon when I was watching a court hearing related to a guardianship situation and received a text urgently informing me about another guardianship matter that was garnering some community interest.  I'm no expert.  I got involved in one of these cases because a favorite farmers' market vendor introduced me to a guy who needed help freeing his stepmother.  (See this October 2018 post.)  Such cases can be painful -- for all of us.  I don't mean to suggest that corporate guardians/conservators aren't sometimes the best solution -- even the only solution -- or that they don't frequently do a fair job.   However, many families can, too -- with the added benefit to Aunt Sally (often called "the person in need of protection") of love and familiarity with her caretaker.]

[It has also struck me that there's a wider need for us to wrest back some control of our lives from the well-intended professionals -- in medicine, the freedom to die, and other fields.. But that doesn't mean I don't need and deeply appreciate professionals, often!]