This is an article from Potter Law Firm (www.potterestateplanning.com) in Ashland, Kentucky, that we thought others may find helpful.
If a parent or loved one is showing signs that their mental capacity may be on the decline, start thinking about how you can help them take care of themselves. Two of the most common indicators of incapacity are memory loss and disorientation. For those who have noticed these signs or anything else that caused concern, you should speak with your elder law attorneys. Creating a plan is the best thing you can do because there may be some difficult choices in the near future.
Starting a conversation about incapacity planning with your loved one
Before you start this potentially uncomfortable conversation, get on the same page with other family members so you can approach your loved one with a united front. First, resolve any disagreements or miscommunications you’ve had with your close relatives before starting the conversation. If you do this, you will significantly reduce the chance of your loved one becoming defensive while discussing their incapacity. When choosing who will be involved in the conversation, choose wisely and remember that the entire family does not have to be involved.
Let your loved one stay as involved in the decisions as possible
Incapacity planning will go much more smoothly if your loved one is allowed to participate in the decisions that are made on their behalf. Once you have discussed the basic issues with your loved one, then it is time to seek the advice of your elder law attorneys regarding which issues need to be addressed in the incapacity plan.
Balancing safety concerns with maintaining your loved one’s autonomy
While it is important to put in place mechanisms that will keep your loved one safe during a period of incapacity, it is equally important to allow them to maintain their autonomy to the largest degree possible. There are various techniques for accomplishing this. Which one will work in your situation depends on the particular issues you are facing. In some cases, a formal guardianship may be required. However, the likelihood of an individual losing their independence entirely is very high and that is something that most of our elderly loved ones are concerned with.
As elder law attorneys may often advise, guardianship or conservatorship of adults should be used as a last resort whenever possible. Guardianship or conservatorship should never be considered simply because you are in disagreement with your parent about one of their decisions or because they have received a particular medical diagnosis.
Making your loved one feel in control of their lives
In most cases, it is important to go beyond letting your loved one be involved in decisions. Most families are concerned about making their parents or loved ones feel like they still maintain some control over their lives. Instead, the goal is to make them feel more like they are simply receiving the assistance they need at the time they need it most.
The key is managing elder law issues without making your loved one feel like everyone is taking over. There are two strategies for handling this situation. If they are still mentally competent when you begin your incapacity planning, they should be involved in every aspect. That means it is important to start planning as soon as possible. On the other hand, if their mental capacity is already fading, find ways to let them exercise control whenever possible, no matter how small.
Dealing with a parent who is being uncooperative
For many families, elderly loved ones are unwilling to discuss their affairs or give up control to anyone. If your parent is being uncooperative, you may have to handle some of the incapacity planning without their involvement.
The issue then becomes whether they are still considered legally competent. If they are, then their consent is required. However, once they have been deemed incapacitated, you may need court involvement to put the entire incapacity plan in place.
Elder law attorneys can provide support and assistance
Elder law attorneys are uniquely equipped to handle the common issues faced by seniors these days. An elder law attorney can help you plan for nursing home care and create an estate plan. Elder law attorneys have the experience and training in the important legal issues that affect the elderly so they understand their clients’ needs and can meet them head on.
Audra has received extensive training from the American Academy of Estate Planning Attorneys, a national organization. She is one of 8 attorneys currently serving on the Academy’s Board of Governors.
Audra and her husband Ernie have two children, Ellyn and Coleman. They enjoy traveling, auctions, and owning a gift and antique store in historic Prairie Grove, Arkansas. The whole family enjoys Razorback sports.
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