We are all acquainted with the process of when an orphaned minor needs a guardian until he or she becomes an adult. But what happens at the other end of the age spectrum, when the parents become physically or mentally disabled and need supervision?
The issue is whether a senior citizen (or even younger adult) needs a “guardian” to handle his or her personal needs or a “conservator” to manage the person’s finances. At different times our office has been retained to represent the children who want mom or dad to have a guardian or conservator, and at other times, we have been hired by a parent to assert his or her competency to handle their affairs.
It is an obviously emotional situation because the parent usually does not want to give up his or her autonomy. Also, the Alzheimer’s disease or dementia can leave its victim with a false sense of what he or she can manage. On the other hand, some children want to rush to a guardianship when mom or dad slows down a slightly, or becomes a bit forgetful. On the darker side, some children want to get and use mom’s or dad’s money for themselves while the parent is still alive.
The situation can become further complicated when there is a “blended family” of a second marriage or when mom or dad becomes enamored of a new “significant other”, whom the natural children do not approve. The children may become suspicious that mom is being “financially exploited” by a man they consider a “gold digger”. On the other hand, the children may refuse to accept the fact that dad has become emotionally or sexually attracted by someone other than deceased mom.
There is no doubt that in such circumstances, legal battles can become emotional – and expensive.
The reasonable alternative is that family members communicate with each other. Unfortunately, when it comes to parent-child or sibling communication, some families are terminally dysfunctional. Sometimes communication can be opened up by a neutral clergyman or impartial family friend. Even that doesn’t always work with the distrust that seems to be inherent in “blended” families.
Under the Minnesota Probate code, the courts give preference to alternatives that are less onerous than a guardianship or conservatorship. These can include powers of attorney or Health Care Directives (formerly known as “Living Wills”).
In preparing for disability and estate planning matters, it is always wise to confer with a qualified professional while the parents (and children) are competent and emotionally calm.
