In my role as an elder law attorney, this is a question that I get all the time. In the child’s opinion, mom and/or dad is not safe, is living in an inappropriate environment or is being financially abused. The parent refuses to do anything to change the situation. Can a guardianship be used to force the parent to accept help?
Before one commences a guardianship, care must be taken to analyze the situation. If the judge does not believe that the guardianship should have been commenced, she can order the petitioner to pay the attorney fees of the person against whom the guardianship was brought. (This person is known as the “alleged incapacitated person” or “AIP.”)
A court will appoint a guardian if it is shown: “1. that the appointment is necessary to provide for the personal needs of that person, including food, clothing, shelter, health care, or safety and/or to manage the property and financial affairs of that person; and 2. that the person agrees to the appointment, or that the person is incapacitated…” Mental Hygiene Law (MHL), § 81.02. The statute further explains that one must prove: “1. the person is unable to provide for personal needs and/or property management; and 2. the person cannot adequately understand and appreciate the nature and consequences of such inability.” MHL, § 81.02. (Emphasis supplied.)
The proof that the person needs a guardian must be by “clear and convincing evidence.” This is high degree of proof. If a person is determined to require a guardian, the court must use the least restrictive means of protecting the individual. In other words, the court will only give those powers to the guardian which are necessary to protect the individual from harm. Even if the court determines that the individual needs a guardian, she will not necessarily lose the ability to make decisions with respect to all areas of her life. We must not forget that a guardianship takes away the individual’s freedom and privacy. This should not be done lightly.
Before a guardian is appointed, the court will determine whether there are alternatives to guardianship, such as visiting nurses, home health aides, assisted living, powers of attorney and health care proxies. If alternatives to a guardianship are available, a guardianship petition should not be initiated.
The bottom line is that one must not only be able to prove that the individual is engaging in behavior that is harmful to himself or herself but that the person is incapacitated and cannot understand or appreciate that the behavior is harmful. A guardianship cannot be obtained solely on the basis that a child believes that the parent is making bad decisions.
Rather than bringing a guardianship, it may be best to initiate a discussion with the parent to get them to agree to receive help. You want to be tactful, respectful and considerate of right to privacy of your parent. This is not a discussion you want to initiate in front of other people. It may be fruitful to have a professional, such as a social worker or psychologist, to assist in guiding the conversation.
In my role as attorney, I have sometimes asked children to leave the room when they were attempting to badger their parents into making decisions that they did not wish to make. On occasion, when the children left the room, I was able to engage in a rational discussion with the parent with the result that the parent agreed to do what the children desired. Getting the parent to accept help is very often simply a matter of being respectful, listening to the parent’s concerns and giving them the dignity of making their own decisions. Is that not what we all want?