Why do I need Guardianship of my Elderly Mother When I am an Agent on her Health Care Power of Attorney?

Mom (age 78) signed a Health Care Power of Attorney five years ago while she was competent in which she designated you as her Agent for medical decision making. You have been involved in her care for the last several years (e.g., going to doctor appointments, etc.). Unfortunately, mom has now been diagnosed with Lewy Body Dementia and is experiencing significant psychiatric behaviors. She can no longer live safely alone at home. She, however, by virtue of her diagnosis and cognitive impairment lacks insight regarding her condition. She refuses to see “that doctor” again and will not take her prescribed medication. Moreover, she recently fired the home health caregiver you hired and is hallucinating and become very paranoid. Her neurologist and primary care doctor have advised that she is no longer safe at home and should move to a memory care community. She refuses. 

We routinely see situations like this. Although you are named as the Agent under mom’s Health Care Power of Attorney, you only have authority to consent or refuse to her medical treatment if she is not capable of expressing her own wishes. In other words, if she verbally refuses treatment, home health care, or placement you, as her Agent, cannot override her express wishes even if she is not capable of giving informed consent. This “gap” in authority often comes as a surprise. In short, as her Agent you do not get to override her verbal wishes, even if she does not understand the consequences or risks of those decisions. So, what can you do if her own decisions are putting her well-being and safety at risk? How can you take care of her? 

Guardianship is the answer. A legal Guardian appointed by the Court and has authority to make personal and medical decisions for an incapacitated adult, similar as a parent does for their minor child. While under guardianship, mom no longer legally has authority to refuse or consent to medical treatment or placement; the legal Guardian has sole decision-making authority. In these types of situations, Guardianship is often the best solution to ensuring mom’s needs will be met and you can continue to take care of her. 

We routinely handle guardianship and conservatorship matters. If you need guardianship or conservatorship over a loved one or are already serving as Guardian or Conservator and need legal advice regarding your duties and responsibilities, please call us at 480-922-1010 or email info@bivenslaw.com to schedule your consultation. We handle all types of guardianships and conservatorships for adults and help guide you through the entire court process.