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Dear Harry,
My 84-year-old mother, who is a retired registered nurse last year had a health scare (unrelated to COVID-19) and was hospitalized – including time in intensive care. After some rehab, she spent seven months recovering at my home in a different state from where she lives.
Since May she has been living independently in her own home. However, she is very frail and has chronic health issues that significantly limit her mobility and use of her hands. Our uncle lives nearby and visits once or twice a week to spend time with her, take out the trash and bring dinner. My brother, who also lives out of state, and I come up as much as we can to help with home maintenance, cleaning, groceries, meals and medications.
We all have noticed more decline in the last few months. We arranged for a consultant from a home care agency to meet with her and arrange regular home care visits but my mother refused to cooperate. We also would like to renovate her home to make it safer, but she has refused. My mother is stubbornly independent and presents as competent. However, she refuses to be assessed and her full cognitive abilities have not been evaluated. My brother and I have tried to fulfill our obligations as her children but we are unclear of what we can do legally. What options do we have and when is it appropriate to intervene?
Dear reader,
Your situation is both very difficult and not that unusual. The law, unfortunately, is not always that much help given its bias toward personal autonomy. The legal solution is guardianship (called “conservatorship” in some states), which would permit you to step in and make healthcare and life decisions for your mother once she is unable to do so herself. It sounds like she would not meet the standard required for that intervention today. And the process can be both time consuming and expensive and cause a rift with your mother. This has, of course, been in the news recently given the controversy over the long-term conservatorship of Brittany Spears (which included financial and legal control, as well as health and personal decision making).
Ultimately, your mother’s mental functioning may well decline further so that a doctor is willing to opine that she can no longer make decisions for herself. Given that you would need that opinion from a doctor in order to go to court to seek your appointment as your mother’s guardian, you may need to wait until your mother is again hospitalized in order to proceed. You could get a court to order your mother to be assessed, but that would add to the expense and likely rancor of the guardianship proceeding.
Meanwhile, I think the best course is to continue doing what you’re doing, including continuing to hire a consultant to look in on her. Hopefully, that person can develop a relationship with your mother over time and perhaps influence her to begin to make some necessary changes. At the very least, he or she would already know the situation when and if a crisis develops.
In my experience, typically, something does happen that leads to a hospitalization, at which point it becomes easier for the family to intervene. This is not the ideal approach, but it may be inevitable.
Harry S. Margolis practices elder law, estate and special needs planning in Boston and Wellesley, Massachusetts, and is the majority owner of ElderLawAnswers.com.. He is author of The Baby Boomers Guide to Trusts: Your All-Purpose Estate Planning Tool and answers consumer questions about estate planning issues at www.AskHarry.info.
