This is an article from the Law Firm of Evan H. Farr, P.C., in Fairfax Virginia that we thought others may find helpful.
Jane and Maria are sisters who haven’t spoken in ten years due to a disagreement over their mother’s care. Jane was a caregiver for her mother, Millie, and served as her guardian and had Power of Attorney until she passed away. Maria lived in another state and knew her mother suffered from dementia, but had no idea she had taken a turn for the worse. This is because her estranged sister didn’t give her updates or permit her to visit. She felt powerless and sad that she couldn’t say goodbye to her own mother when she died, and didn’t even know she had been cremated.
In a similar situation involving family unrest, actor Peter Falk, best known for having portrayed Columbo on TV, died from complications from dementia. When his daughter, Catherine, was five, Falk divorced her mother, but he and Catherine continued to share a close relationship. In 2008, when he was suffering from dementia, his second wife, Shera, made it difficult for Catherine to visit him and failed to give her updates on his health.
During his period of incapacity, Catherine went to court in California to try and get guardianship over her father, so she could visit him and have a say in his care. She experienced first-hand that children have limited rights when it comes to parental visitation. The court instructed Shera to permit Catherine to visit her father, but Shera did not comply. In 2011, when Falk passed away at age 83, Shera did not notify Catherine, who learned of her father’s death from the media. Nor was Catherine informed of her father’s burial, or even his final resting place.
The unfortunate situations described in our example and with the Falk family are similar to what unfolded with the family of the late Casey Kasem, whose daughter couldn’t find her father due to her stepmother, Jeanne Kasem, hiding him and not informing the family about his location. And it’s also similar to the Glen Campbell situation, where his children from a previous marriage claim that his current wife, Kim, isn’t providing him with toiletries and clothing, while possibly mishandling finances and keeping him “secluded from the rest of the family.”
According to Martha Patterson, attorney and secretary for the Kasem Cares Foundation, “(T)he stories are all similar they all start the same. ‘I haven’t been allowed to see my dad (or mom)’ is often followed by “I don’t even know where they are, they were moved by my step-parent or brother or sister. Can you help me?” Often the answer is no. Unfortunately, according to Patterson, “(T)here is NO law and NO way a child can request a visit with their parent in a private residence so when an elder is being isolated by his or her spouse, adult child, or a caregiver, there is NO easy way for a child to just ask for the right to see their parent. A Conservatorship often is not even an option because a Conservatorship requires the child to prove their parent lacks the ability to make decisions.”
What can be done to expand children’s rights with respect to incapacitated parents?
To prevent other adult children and aging parents from enduring what her family endured, Catherine Falk is currently promoting legislation to expand children’s rights with respect to incapacitated parents. “There’s no legal recourse that adult children have currently that allows them to get any visitation to their parents,” says Falk. “They’re isolated, and isolation means elder abuse. We need a law to protect us and to protect our parents so that we can have a relationship in their final years and days of their life.”
As a result of her efforts, California is considering a bill – the Peter Falk Bill – that would recognize a child’s right to visitation with an incapacitated parent. There is movement in other states to introduce similar bills. If enacted, the proposed bill would require the conservator of an elder or dependent adult to inform the relatives of the conservatee whenever the conservatee dies or is admitted to a medical facility for acute care for a period of 3 days or more and would require the conservator, in the event of the death of the conservatee, to inform the relatives of any funeral arrangements and the location of the conservatee’s final resting place. The proposed Bill would also require cemeteries to open their records regarding interments to the public in order to allow persons to locate the graves of loved ones. The bill in California is gaining ground, and there is bi-partisan support for a similar bill in New York.
Kerri Kasem is also lobbying states to adopt a similar bill, and Iowa has become the first state in the nation with a law ensuring visitation rights of adult children to see ailing parents. Hopefully other states will see the importance and follow suit!
Family Turmoil can be overcome
Dysfunction happens equally in biological as well as blended families like the Campbells and Kasems. Children may fight spouses, feeling entitlement, even when there is a prenuptial agreement in place. Experts say good planning while the parent is still of sound mind can minimize the damage.
Ellen Goodman, co-founder of The Conversation Project, leads a national effort to get families to “sit down at the kitchen table” and talk about their end-of-life wishes, while parents are still healthy. According to Goodman, “Glen Campbell is among [those] who can’t speak for themselves in the end,” she said. “ It’s an emotional story. “Have the conversation as early as you can,” she added. “You give a gift to your own children and tell them what you want when the times comes.”
Guardianship and Conservatorship is an option
A “guardian” of an adult is a person appointed by the court who is responsible for the personal affairs of an incapacitated adult, including responsibility for making decisions regarding the adult’s support, care, health, safety, habilitation, education, therapeutic treatment, and residence. A “conservator” is also appointed by the court, and is responsible for managing the estate and financial affairs of an incapacitated person. In some states, a “conservator” is called a “guardian of the estate” and the “regular” guardian is called the “guardian of the person.”
When we think of legal guardianship or conservatorship, several scenarios typically come to mind: an elderly parent with dementia; an adult who has been severely injured and can no longer take care of himself; and, increasingly, young adults who are making unsafe, dangerous, or destructive decisions. Guardianship is an extreme form of intervention in another person’s life because control over personal and/or financial decisions is transferred to someone else for an indefinite, often permanent period of time. Once established, it can be difficult to revoke. Therefore, guardianship should only be used as a last resort.