When Mom or Dad Can No Longer Make Decisions

Where a family member is disabled or has diminished physical or mental capacity, guardianship proceedings may be an option. However, taking this step must be carefully considered because these court proceedings are often very difficult on the family. They can be expensive if they are contested or family members fight over who should be given control. (They can cost tens of thousands of dollars.)

If the person afflicted with diminished capacity is cooperative and willing, a durable power of attorney may be a good option to consider. The principal (sometimes called the allegedly incapacitated person or AIP) can sign a document giving authority to a trusted agent to act in financial and legal matters. (A health care proxy is necessary for medical decisions). A durable power of attorney generally costs $100-$1,000 and can be prepared and executed with your attorney. This option is available only where the principal has sufficient capacity to sign a legal document and understands the nature of what he or she is signing. If these circumstances exist, this is the most cost effective option for the family to consider.

Article 81 of the Mental Hygiene Law balances the right to autonomy and self-determination with the social responsibility to protect those who are not capable of caring for themselves. It is important to understand that guardianship is intended to provide support in the least intrusive manner possible. The more capable the person is, the less assistance they will require in handling legal and financial affairs. The court will limit the role of the guardian to what the person needs to prevent him/her from suffering harm. The law focuses on when the person is likely to suffer harm or cause harm to others. A person who makes decisions we don’t agree with – or that seem eccentric – is not necessarily incapable from a legal perspective.

We look at how the person copes with activities of daily living (“ADL’s”) like bathing, toileting, grooming, cooking, eating and banking. The court will evaluate whether there is clear and convincing evidence that the person cannot understand the consequences of his/her actions or physical and mental limitations. The court will also consider the person’s known preferences, wishes and values – trying to reserve the greatest amount of self-determination and independence. When substituting the judgment of others, we try to figure out what the person would have decided for themselves if they were not incapacitated.

If you find yourself facing these difficult circumstances, consulting with an attorney can help you understand these and other options that may be available. The best planning is that which is done in advance with powers of attorney executed well before there is a diminished capacity situation at hand. It is always best to decide for yourself who should make decisions on your behalf when the time comes rather than leave it to a court to make such decisions for you.

Tracy Jong assists CARES, a not-for-profit group benefitting those suffering from schizophrenia and their families, we understand the unique challenges families face in these circumstances. Call our office if we can help your family find answers to the best way to handle the legal and financial affairs of a schizophrenic family member.