The writing is on the wall: My parent is no longer safe living at home. Maybe she has forgotten to turn off the stove or has skipped meals entirely because she simply did not remember to eat. Maybe he is no longer showering or changing clothes. Perhaps he has a history of falling – sometimes with serious consequences. It could even be that the hoarding has become so pervasive that exiting or entering the home in an emergency would present complications. Whatever the individual circumstances, no amount of reasoning works and despite my pleading, cajoling, bribing or visits to local assisted living facilities, my loved one simply refuses to even consider moving.
If this is your nightmare, what can you do? Some people mistakenly believe that a power of attorney or healthcare proxy gives them the authority to force their parent to move. No document gives the agent that authority. You fear that disaster is just around the corner but you cannot be there 24/7 to provide a safe environment. We are confronted with this issue with some regularity and the unfortunate reality is that, short of commencing a guardianship proceeding to have your loved one declared incapacitated, or incapable of decision making, there is no way to compel them to move.
With over 20 years of experience in the area of elder law, clients come to Berwitz & DiTata LLP for assistance in planning for the next move and also for guidance on how to implement ideas and present them to loved ones. Using our extensive experience and the exercise of compassion and patience, we help families navigate these trying times.
We often discourage attempts to assume decision-making for another because, apart from being costly and time-consuming, they may not have a favorable outcome. Guardianship is not an easy or inexpensive process and it may become contentious. When the matter comes to court, the court will assign a court evaluator to investigate the circumstances and act as the court’s “eyes and ears.” The court may also appoint an independent attorney to represent the elder. The court must conduct a hearing and determine whether the person genuinely requires a guardian. In New York, the Mental Hygiene Law directs the court to apply the least restrictive form of intervention to assist those who are incapacitated in meeting their needs, while at the same time allowing them to exercise independence and self-determination. Individual preferences are respected and the court looks to implement safeguards that are in the best interests of the individual. Thus, if the individual can be maintained in their home with safety modifications and home care, that may constitute the least restrictive intervention.
Regardless of the particulars, the issues faced by individuals in this situation are heart-wrenching. Resolving issues like these takes forbearance and persistence and, sometimes, that isn’t enough. If you or someone you love is confronted with this dilemma, give them this article and suggest that they call the experienced elder law attorneys at Berwitz & DiTata LLP.