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Behind the Photo – The Road to Guardianship

By Attorney Katherine Breckenridge

Published August 9, 2018 – INSIDENOVA

Elder Law : Guardianship

Capture the imagination of the audience. Draw them in. Lead them thru. Take them all the way to the end.

The encouragement espoused in journalism class does not necessarily carry over to the drafting of motions presented in a court of law. However, with the petition being reduced to mere pages I want to bring to life for the court the conditions in which the respondent lives, her inability to make sound decisions for herself, the respondent’s denial of her deteriorating health and need for medical care, and the efforts of loving family members to help the respondent maintain her quality of life.

Reading over the timeline documenting a point years ago when signs of behavioral changes first manifested, and detailing the progressive deterioration of cognitive abilities cuts to the deepest of emotions. There seems to be no magic remedy for cognitive challenges.

Accompanying the timeline are photographs. The initial pictures depict a beautiful woman in what may have been just before the onset of illness. The same beginning shows a lovely brick, colonial-style home, the kind that is timeless – welcoming front porch, elaborate wood mouldings inside, and adorned with framed pictures and antiques. One can picture the respondent creating such beauty and raising a family within the safe walls of the home.

The photographs that follow, confirm the digression represented in the timeline. The exterior of the house is in disrepair and the gardens look like overgrown fields. The interior shows a lack of care – thick cobwebs on windowsills, extensive remnants of food and drink, and rooms and hallways filled with piles of articles like clothing and boxes – some impassable and a few with narrow pathways from points A and B.

The most heart wrenching photograph is that which depicts the respondent sitting in an armchair, the one clear spot in the room amidst chaotic piles – a blank and unregistering look on a face that once was so vibrant.

The present challenge is to help this precious human being who has done so much for so many and who now cannot care even for herself. Though the environment in disarray appears to have no effect, she does not seem to recognize her own limitations and does not think she needs help.

Help is precisely what is essential. When an individual is in need of assistance to maintain her quality of life, the court prefers the least restrictive means, such as a power of attorney and advance medical directive. However, when an individual does not have these estate planning documents in place giving agency authority to another to make decisions on behalf of the individual, and does not have the cognitive ability to grant agency, the tool that the Code of Virginia (the Code) makes available to any person who wants to help an incapacitated adult is that of seeking guardianship of the individual.

In §64.2-2000 of the Code the term guardian is defined as, “a person appointed by the court who is responsible for the personal affairs of an incapacitated person, including responsibility for making decisions regarding the person’s support, care, health, safety, habilitation, education, therapeutic treatment, and, if not inconsistent with an order of involuntary admission, residence.”

As circumstances change within families, as hard as it is to accept the reality, there are times when there are role reversals and the children step into a type of parental role as the parent now needs to be cared for. Prior to taking action, families may go through cycles of denial – “Mom thinks the cashiers at the grocery store are trying to take all of her money. I think she is just tired and overwhelmed.” “Did you notice that Dad did not seem to recognize me yesterday? Maybe he had a lot on his mind.” “I know that Mom forgets to eat; however, I think that she is fine. I will just keep cooking her favorite food for her.” Often, adult siblings will combine efforts to care for an adult parent in need. However, escalating dependency may occur, and the challenge is identifying if anyone other than the adult parent has the legal authority to make decisions for the adult parent.

The determinative point is whether the person is incapacitated. Thankfully, when ascertaining the presence of incapacitation, the Code sets the bar fairly high and the evidence must be clear and convincing. There are seemingly innumerable domestic situations in which an adult child would not make the same decision as the parent. For example, making poor monetary decisions such as giving a large sum of money to a relative does not necessarily mean one does not fully comprehend such an action, as well as that action’s ramifications. Having rooms filled with clutter, even to the point of being labeled a “hoarder” does not mean one is incapacitated. Neither does refusing to take medications, declining financial assistance, or becoming reclusive.

When concerned family or friends begin to notice a combination of challenges faced by a loved one, such as: denial of a medical diagnosis, discounting poor living conditions, acts of ignoring financial commitments, not seeking medical treatment when such action is imperative to one’s health, inability to understand one’s surroundings in a manner that warrants the assistance from others, a susceptibility to exploitation (like scams), and a victim of neglect without the wherewithal to change one’s circumstances – seeking legal counsel is wise.

In §64.2000 of the Code, an “incapacitated person means an adult who has been found by a court to be incapable of receiving and evaluating information effectively or responding to people, events, or environments to such an extent that the individual lacks the capacity to (i) meet the essential requirements for his health, care, safety, or therapeutic needs without the assistance or protection of a guardian or (ii) manage property or financial affairs or provide for his support . . .”

As harsh as it may seem to have the court deem a loved one as incapacitated, an Order for Appointment of Guardian is a tool that can used as a protective measure for a person who is truly in a position of not being able to interpret her environment and is placing herself in harm’s way.