My parents are suffering from memory loss issues. In my father's case, he has no short term memory, but does remember things that happened years ago. In my mothers case, she had trouble doing any type of cognitive function. I have asked my parents to sign power of attorney documents in the event they become incapacitated, but my Mother refuses to sign and has talked my Dad into refusing to sign. She wants me and my siblings to do a guardianship when the day comes that they cannot make their own decisions. My siblings and I do NOT want guardianship. My parents reside in TX. Do we have any options here? We have been advised by a general attorney (not elder care attorney) that if none of the siblings want guardianship (which we do not legally) then the state/county will take over. But since they live in Harris County, he also warned us that Harris county ranks near the very bottom in terms of looking out and taking care of elderly people. Is there a legal way to obtain power of attorney so we can make decisions on their behalf if they refuse to sign a power of attorney document? If there is not, does this mean that once they can no longer take care of themselves, the state will step in if no sibling has the ability to accept guardianship?
If (when) your parents become incompetent, then the state will step in and appoint a guardian, if family does not petition for guardianship.
Good luck on your journey.
But if I may say so, you and your siblings appear to want power without responsibility. You want to be able to make decisions on your parents' behalf; but you don't want to be burdened with guardianship and you aren't, either, happy for a poorly performing state agency to take it on (not that I blame you).
Run it by us again, though - what are your reservations about applying for guardianship?
And I agree with others - power of attorney of any sort must be given by the person being acted for to someone he or she appoints to act for him or her; and the person must be capable of understanding the nature of the instrument and its consequences. Even if you hadn't missed the boat, and it rather sounds like you have, there is no way of doing this without your competent parents' individual informed consent.
During the attorney meeting, she forgot the names of her ex-husbands but muddled through the rest. The attorney explained that it only goes into effect when she CAN NO LONGER make decisions for herself. I really played that up so it didn't look like I was an eager beaver. She signed the papers. I'm sure she felt she'd have her mind for a lot longer than I knew she would.
I also had her sign me on to her checking and savings accounts. I explained there was a friend of my husbands who couldn't bury his father because he didn't have enough money. I explained that, at that time, I didn't have that much money either and she would have to stay in the morgue until I could afford to pay for her burial if I didn't have access to her account . That did it. She signed me on as co-owner. (Yeah, I know that sounds like a horrible example but it was true.)
Explain that they call the shots even though you have POA. That will make them feel better and more in control of their own lives. It's only when they CAN'T speak for themselves (stroke) (and dementia but don't say that), that you would step in to assist.
Good luck.
But to answer OP's question. Guardianship is what you ask a court for if they aren't competent to sign a POA. Yet you say you don't want it. I'm not even sure you could get guardianship. That's a tough hurdle and although their capacity is diminished, your parents do seem to understand what they are doing when they refuse to sign the POA. But that's just my layman's thoughts.
At the end of the day if they refuse they refuse.
I would tell them to set up an account to save for the attorney and court fees for the future. Depending on where you live I would request they set aside between $4000-$6000 to pay for both their attorney and the guardian's attorney fees. You or your siblings can proactively apply for guardianship at any time if you are worried about your parent's decision making abilities.
In most cases a public guardian only steps in where there are no family members willing to take on the role. They usually only step in when there is major self-neglect or safety issues. If there are assets, the guardianship office will charge for their services. Public guardianship should not be considered a cost saving alternative.
That means if they hurt or kill someone inadvertantly due to their dementia, you could go to jail. The attorney who advised us stated that a guardianship should not be considered unless the sibling could take them into their home and accept the same responsibilities for them as you would if they were a child. My mother is somewhat violent and physical, so none of us want her in our homes. She has stated that she does not trust us and wants the state to care for her, but she does not realize that the state will just stick her into a medicaid facility to die. In addition, we all work, and none of us can afford to quit our jobs to care for them full time. Since they have no assets except their house and social security, even if the state steps in, they will only qualify for medicaid. At least with a power of attorney, we can try and keep them in their home and see if the qualify for any financial assistance to keep them in their home. But without having access to their finances, our hands are tied. The attorney stated that if the do not sign power of attorney, our only option is to wait until adult protective services intervenes, but when they do, we will have no control over what the state decides to do with them.
My thanks again for everyone's responses and advice.
He might also have explained that guardianship would give you the authority to remove your parents from their home, place them in a suitably secure facility where they could not pose a danger to themselves or others, sell their property and use the proceeds to fund their care.
This course of action would make whoever took it highly unpopular with your parents, of course; and I can completely understand that none of you is willing to take it on. Moreover, the sheer workload involved would also be difficult to combine with full-time employment - another very good reason for declining it. Fear of being held responsible for your parent's involuntary manslaughter of another person and sent to jail, though... I'd have thought there were more immediate threats to worry about.
Having said that. If your mother is somewhat violent and physical, is your father not at risk? In which case, hadn't you better involve APS as a matter of urgency anyway? If you work with them, rather than waiting for them to be alerted some other way, you are more likely to be able to have some input into future care plans.
I had to ask myself, what is the best thing for me and my elderly parent. From my situation, I could no longer deal with the constant back and forth with 'when the time is right' or 'I'll think about it', when it became more obvious that my elderly parent simply was not going to do it. It's sad when it has to come to this but sometimes the tough decision need to be made.
I'm sure that's not true of you! - but if a person's had his fingers burned, or seen someone else get their fingers burned, or even just listened to a lot of consumer affairs programmes...
Do make room in whatever decision-making process you set up for as much input as possible from your parent, won't you? - it might make you less perfect for "Villain of the Piece."
So what are your next steps? Do you have good advisers to call on?