Ignoring the Warning Signs May Put You
in Danger
By Hillary S. Josephs, Business Development
Coordinator, Stephanie L. Schneider PA
No,
this is not the premise of a movie or novel.
It is the true story of a family that could have avoided much of the emotional
turmoil, possible physical harm, and the expense and loss of privacy they now have
to come to terms with as they face a guardianship proceeding for a loved one.
Tale: A couple we’ll
call Bill & Mary lived together for over 40 years. Now in their 80s and
never married to each other, Bill & Mary jointly own a home together, share
two investments and separately own assets and real estate. Mary has several children from her prior
marriage. Bill has one child from whom he is estranged. During a consultation with Stephanie L.
Schneider, Board Certified Elder Law Attorney in August 2015, Mary described some of Bill's recent behaviors
that did not make sense to her:
- refusing to leave the house to go to a restaurant
- accusing her of stealing his money
- refusing to use the air conditioner even during the hot Florida summer months
- refusing to sign checks to pay the real estate taxes on several pieces of land he owned in New York.
Although
Bill was not present at the consultation, Stephanie recognized that Bill's
behavior was likely related to a cognitive impairment. Stephanie recommended that
Mary schedule an appointment with a neurologist. Stephanie also suggested that Bill meet with
her to determine if he was sufficiently aware to sign legal documents. Bill would not agree to consult with any
attorney so it was not an option to create an estate and long term care plan
through legal documents. Stephanie was,
however, able to create estate & incapacity planning documents for Mary
(i.e. a Will, durable power of attorney, designation of healthcare and living
will). Stephanie created a special needs
trust under Mary's Will to provide an
inheritance for Bill upon her death.
Months
passed and our office heard nothing from Mary.
In the interim, Bill did go to a neurologist who diagnosed him with
Alzheimer's (middle stage) and prescribed medication for Bill's anxiety and
anger. Bill took the medication for two
weeks and then refused to continue. In January 2016, Bill's behavior turned violent toward Mary
and the police were called to the home. Bill
was Baker Acted.
Mary
consulted with Stephanie about the options for her to make Bill's medical and
financial decisions. Mary then confided
in Stephanie that Bill’s cognitive
decline has been going on noticeably for several years and no one had
questioned it or recommended that Bill seek medical attention.
Tip: Due to the
advanced nature of Bill's cognitive impairment it is necessary to initiate a guardianship proceeding so that Mary will
have legal authority to make Bill's medical, residential, social and financial
decisions. Once Mary is appointed Guardian:
- Florida law requires that an attorney represent the guardian.
- Bill's assets will be placed in a restricted guardianship account. Mary will not be able to access the account without a court order including an order for a monthly budget.
- Some decisions cannot be made without first obtaining Court approval (i.e. selling assets such as real estate or a car).
- Annual accountings are filed with the Court to report how the assets are spent, income earned and the value.
- Many of the documents in the court file are a public record resulting in the loss of Bill's privacy.
- The guardianship will continue until Bill's death (or until there is a cure for cognitive impairment) so there will be continuing legal fees.
- Seek professional advice if you notice that a loved one, family member, friend or co-worker is showing unusual behavior such as:
- refusing to take medication, or not refilling prescriptive medication
- not grooming themselves
- not paying bills (i.e. real estate taxes), allowing necessary homeowner's insurance or car insurance to lapse
- refusing to seek medical attention
It
may be necessary to consult with an elder law attorney, a social worker, as
well as a neurologist. Responding at the
earliest possible time is critical so the person can be properly diagnosed and
receive immediate medical or mental health services. In the early stages of a cognitive impairment
it is possible for the person to be sufficiently aware to execute legal
documents which can be an alternative to a guardianship- if they are willing to
do so. Don't miss the window of opportunity that can save you financial
expense and maintain your privacy.
Create
your estate & incapacity plan before you experience physical, emotional or
mental health issues. Anyone over age 18
should have legal documents that name someone they trust to make healthcare
and financial decisions when you cannot do so due to illness or an accident,
even temporarily. We recommend designating alternate decision-makers in case
the people you name are not available or able to serve (are sick or have died).
Avoid
the danger in waiting. Proper planning may create peace of mind.
The Law Office of Stephanie L. Schneider PA ~ Your
Trusted Planning Advisor through Life sm
