When families think about the best response to someone’s diagnosis of Alzheimer’s disease or another condition that causes dementia, the priority is often seeking out ways to meet the patient’s immediate medical needs. For example, having safe housing and around-the-clock care often become necessary for those in active cognitive decline.
With their focus on medical and practical matters, families may fail to consider the legal implications of an older adult’s health concerns until the situation spirals out of control. One of the steps that family members or other concerned individuals may need to take after someone begins displaying signs of dementia involves going to court.
At times, specific kinds of litigation can empower family members or professionals to meet the needs of those with dementia, but they can also cause major strain on family relationships. Is it always necessary to go to court when someone develops dementia and can no longer manage their own affairs?
How families sometimes avoid litigation
The ideal scenario for an older adult experiencing incapacity due to medical issues involves a plan for incapacity that is already in place. Those who create durable powers of attorney can potentially designate someone they trust to handle their finances and make medical choices on their behalf. Durable powers of attorney retain their authority even if the courts declare someone permanently incapacitated. If an older adult already has the right documents in place, it may not be necessary for their family members to go to court to secure the authority to care for them.
Why families may require litigation
If someone does not have a comprehensive estate plan and loses testamentary capacity, their family members may need to seek guardianship and or conservatorship to provide them with necessary support for day-to-day life. Guardianship involves someone assuming responsibility for meeting the daily needs of another, while conservatorship tasks someone with managing another individual’s daily needs and financial obligations.
Families that recognize someone’s inability to manage their own affairs due to health issues may need to take legal action to protect a vulnerable older adult. Recognizing when litigation may be the best means of protecting a loved one could help family members better safeguard someone’s safety, comfort and resources despite their medical challenges.