Note: this information is presented without warrantee as to legal accuracy for any specific situation or within a given state or jurisdiction. Please read the Legal Disclaimer on this site and be sure to consult with a qualified legal professional in your area who specializes in the topics of concern to you. An important step in the placement process is determining who is legally able to make decisions concerning the care of the person with a dementing illness when they are unable to make such decisions themselves (which is virtually always the case). NEXT-OF-KIN In many cases no Advanced Directives (see below) have been created and the prospective resident is not legally competent to execute any such documents at the time the family contacts ALZCARE. In such cases the law typically recognizes the closest next-of-kin (spouse, child if no spouse, etc.) as the legally responsible/empowered person. Many families think it is necessary to pursue Conservatorship (see below) at this point. This is usually not the case. ADVANCED DIRECTIVES The ideal situation is when the person with dementia completed some form of Advanced Directive prior to becoming unable to make decisions for themselves. There are a variety of such legal instruments and laws vary by state. Here is a quick overview. Durable Power of Attorney/Durable Power of Attorney for Health Care Regular POA vs. Durable POA: Many of us have used a power of attorney in the past. You might, for example, give your sister a normal POA (Power of Attorney) if you were traveling extensively out of the country and wanted her to be able to get your mail, pay your bills and deal with any problems that came up. If, however, you had a car accident while away and wound up in a coma, legally the power of attorney would cease to be valid. A normal power of attorney does not endure incapacitation. The Durable Powers of Attorney were created for this. As the name suggests, where the normal power of attorney stops (with incapacitation) the Durable Powers of Attorney (DPA) begin. There are two Durable Powers, normal and health. The “plain” Durable Power of Attorney is for legal and financial matters (paying the bills, etc.). The Durable Power of Attorney for Health Care (DPAHC; aka Medical Durable Power of Attorney) is specifically for designating who will make important health care decisions for you should you become incapacitated and for providing them with guidance as to your wishes should certain circumstances arise. Not all states recognized the Durable type of power of attorney. Be sure to check on the laws in your state. There may still be an opportunity to complete such documents if your loved one is legally recognized as competent to make an informed decision on such issues. Other Forms of Advanced Directives There are other forms of Advanced Directives that may be important in this process. For example, or other forms may apply in your state. The best thing to do is consult with an Elder Law Attorney in your state for more information on the options available to you if your loved one can be declared legally competent to create such an instrument (see our Links page). CONSERVATORSHIP Many people assume that they will need to seek a Conservatorship before they will be able to place their loved one in a care facility. This is rarely the case and usually not desirable. A Conservatorship is a costly and often time consuming legal process that results in direct court supervision of the care and financial decisions made on behalf of your loved one. It is an adversarial process that puts the person seeking the Conservatorship at odds with their loved one and/or with other family members. It is generally the case that Conservatorship or Guardianship is appropriate only in cases where there is significant conflict between close family members/interested parties or when there is no one other than a legal or health care professional or other non-related interested party available to oversee the care of the person with the dementing illness. Another factor which causes families to consider the Conservatorship option is the natural resistance their loved one exhibits to any suggestion of change, move or care home. With rare exceptions (see One Patient’s Perspective) the prospective resident will almost never agree in advance to a move and will often vigorously oppose any such suggestion. While the stress and guilt that arises in this situation is significant, the legal issues are generally much less so. As long as the legal next-of-kin and the prospective residents' physician(s) agree that the person is no longer able to make this decision for themselves, the placement is emotionally difficult but still doable. We are ready to help you through these difficult times and choices. Call us at 1-866-ALZCARE and we can start working through the issues together.
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