This scenario may be all too familiar: Your mother has dementia and is living alone at home in
Massachusetts. She has always been a fiercely independent person. However, she is beginning to
lose it. Bills are not getting paid. Last week she left the stove on after making breakfast.
You and your siblings just got together for the holidays and it seems clear you need to do
something. Everyone has ideas, but no one has a clear plan.

It can be a difficult transition when a parent is no longer able to care for themselves. It may be
unclear when it’s appropriate to take control of financial matters or health care decisions.
Growing up as children we are used to our parents telling us what to do and looking out for our
well-being. What happens when the children have to parent their parents? When a family
member has cognitive impairments they may not be able to make decisions for themselves, or
ability to participate in complicated decisions may be limited. Our clients want to respect their
parent’s wishes and independence, but they also want to make sure their parents are safe.

Clients often ask us: Do I need to become guardian for my mother? Hopefully the answer is no.
You can have legal authority to make decisions for another person in one of two ways. First is by
having the Probate Court appoint you as guardian. Guardianship and conservatorship are legal
relationships where the Probate Court gives one person (the guardian or conservator) the power to
make decisions for another. Whenever possible we try to keep our clients out of court and that
includes guardianship cases. We try to avoid guardianship for several reasons. First you are
bringing your family’s private affairs into the public realm. Second the courts move slowly.
Finally, the legal fees can be quite high, especially if there is any disagreement regarding who
should serve as guardian.

The second way to get decision making authority is by having your parent directly give it to you
with a durable power of attorney or health care proxy. A power of attorney is a document that
allows a client to appoint an individual to act as the client’s agent (“attorney-in-fact”) on financial
matters should the client ever become incapacitated. A health care proxy gives another person
(the agent) the authority to make health care decisions should the principal become incapacitated.
These documents are also called “advanced directives.” They are great way to make sure that you
have the legal authority to make decisions for your family in the event they become incapacitated.

Even if you parent has already been diagnosed as suffering from Alzheimer’s or has dementia that
does not automatically mean you need to become their guardian. The first question to look at is
whether your parent has enough understanding to sign a durable power of attorney or health care
proxy. An elder law attorney familiar with MassHealth law can help families in the simplest,
most cost effective way possible. Using advanced directives instead of guardianship is one way
to do so.

Regards,

Eric R. Oalican, Esq.
Oalican Law Group, LLC©