At Surprenant & Beneski, P.C., more frequently than you would expect, we assist individuals and couples whose aging parents are losing their faculties and have not documented their wishes for the future. In some cases, in addition to not having a will or trust to ensure desired distribution of their assets, they have not even granted their adult durable power of attorney. This is an important step that allows the adult child to make legal and financial decisions on the behalf of their parent should their parent become incapacitated. Another important step is to have a healthcare proxy in place that allows the adult child to make medical decisions for their parent if they are unable to advocate for themselves.
When these and other important steps aren’t taken, the adult children come to us for help. As experienced estate planning and elder care attorneys, we are happy to be able to provide them with the skilled legal counsel they need to move forward. We are well aware that it is difficult enough to deal with an aging parent who is becoming cognitively impaired if all the proper paperwork is in place.
If the parent has failed to work on an estate plan of any kind and also failed to grant power of attorney, the situation is all the more challenging. Many grown children find out too late that a parent has not planned for the future, and, even worse, has not provided them with the tools to help them navigate their final years.
This is why it is so important to consult a trustworthy estate planning attorney, not only in order to establish your own plan to protect your assets and your loved ones but to see to it that your parent does the same. At the very least, you should make certain that you have been granted power of attorney (and have been made their healthcare agent) so that you will have the authority to make legal, financial, and healthcare decisions if your parent is unable to do so.
What Our Law Team Can Do to Make Your Life Easier
Because we have in-depth knowledge of Massachusetts and federal law and have extensive experience in dealing with older adults, we can help you:
- Convince your parent that having a will, trusts, and foundational documents is essential
- Prepare all necessary documents (e.g. durable power of attorney, health care proxy) and have them validated
- If necessary, assist you in obtaining conservatorship of your parent
We have a great deal of experience working with elderly patients, including those who are apprehensive, so we are adept at gently guiding them to take certain steps to protect themselves and their family. Nonetheless, obtaining conservatorship may be necessary if your parent has become mentally incapacitated to the point that she or he is unwilling or unable to make rational decisions. If so, we are well-prepared to assist you in that process.
Who can become a conservator of an incapacitated person?
To be a guardian in Massachusetts, you have to be appointed by the Probate and Family Court. You will not be automatically appointed to this position because you are the adult child of the incapacitated person, but must be properly vetted by the court. If, for any reason, the court believes you may harm the incapacitated person in any way, another temporary guardian will be chosen.
When is it possible to be appointed conservator of your incapacitated parent?
Under normal circumstances, you can be appointed legal guardian if you obtain a physician’s certificate stating that your parent is:
- Incapacitated — physically unable to meet his/her own needs for safety, health, and personal care, even with technological assistance
- Intellectually disabled — with an IQ of less than 70 and limited skills in communication, self-care, social interaction or self-protection
- Mentally ill to the point of inability to function safely — in other words, whose mental illness involves drastic mood changes, being out of touch with reality, inability to cope with everyday life, or severe trouble relating to others*
- Suffering from a degenerative health condition — unable to consent to treatment or to being placed in a nursing facility
*You will not be awarded conservatorship just because your parent has been diagnosed with mental illness
if the illness is well-controlled by medication and/or other treatment.
Contact Our Elder Care/Estate Planning Attorneys Today
We have a well-earned reputation for being empathetic as well as efficient and effective. We know how challenging your situation is, both logistically and emotionally, and will do everything we can to help smooth your path. We will also always be mindful of the sensitivities surrounding your parent’s loss of control and know the importance of treading lightly while taking decisive action.