A consideration of guardianship

A consideration of guardianship
Laura Brancato Cphoto credit Meltzer Lippe)

By Laura Brancato

It’s an unfortunate reality that the number of individuals living with cognitive impairment is rising.

Advanced age is the greatest risk factor for cognitive impairment. With most Baby Boomers over 60 years of age, the number of people living with cognitive impairment is expected to jump dramatically.

An estimated 5.1 million Americans aged 65 years or older may currently have Alzheimer’s disease. This number may rise to 13.2 million by 2050.

While this is sobering news, there are tools from the social services and legal perspectives to address the multitude of challenges that arise with cognitive impairment.

In the legal world, specific steps should be taken in every estate plan, no matter how large or small the estate, to address future care directives. This ensures that individual wishes are carried out whatever the future holds, with special care given to the potential for diminished cognitive function.

For those suffering from cognitive decline, guardianship can play a critical role in managing a person’s affairs to ensure appropriate care.

By law, guardianship must be considered as a last resort. If proper estate planning has been done during wellness, the plan should never be exposed to guardianship. For those who have failed to plan or whose plans are outdated or ineffective, guardianship is an essential mechanism to provide the necessary support for those unable to care for themselves or their affairs.

Guardianship is a legal process through the county Supreme Court that gives the guardian a great deal of control over the financial and medical needs of a loved one suffering from incapacity.

Through guardianship, social services can be accessed and other mechanisms of daily support can be investigated to create a robust plan of support.

Each person and situation is unique, but guardianship may be considered for someone exhibiting behaviors that signal an inability to self-care or a failure to appreciate the dangers that exist if certain things aren’t managed in an effective way.

Behaviors may include not bathing or dressing, disregarding medical needs including making doctor appointments and filling prescriptions and the inability to handle financial matters or pay bills.  If someone knows to ask for help, it’s a different matter.

Guardianship should only be considered after having thoroughly investigated every other avenue and ideally would be created in concert with legal counsel experienced in elder law or litigation.

In New York, guardianships may not be limited to elderly individuals and can, in limited circumstances, apply to people who have mental health disabilities, substance use disorder, traumatic brain injury, sudden medical trauma or other conditions that affect functional capacity. Temporary guardianships can be sought if someone is expected to regain capacity.

One of the best alternatives to guardianship is a well-thought-out plan for financial and caregiver support.

Clients who are open and honest with family members tend to avoid later litigation over their estate plans. Litigation often stems from lack of information or misinformation among family members.

Under the best of circumstances, it is difficult to see a loved one in decline. Taking the steps to make sure they will get the care that respects the decisions they made when well helps to ease that journey for all involved.

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