Guardianship vs Power of Attorney for Adult w/Down Syndrome

[hana]

Update: I think we're doing okay--family meeting tomorrow.

 

 

 

I feel bad posting again, as I owe thanks and follow-up for much appreciated replies on another thread, but I'm spinning multiple plates here.

 

Any thoughts on guardianship vs power of attorney (either would be given to sister) for an adult with Down Syndrome. He's my brother, age 44. He can read for enjoyment and for some information, but he can't process complex written information. He. cannot. do. math.--like not even change from a dollar. He also has Type 1 diabetes. He cannot give himself insulin. Thus, he needs help in everyday living. My sister wants to take over responsibility from my 85 yr old mother (he lives primarily with my mom, but spends a couple nights a week at my sisters, and he participates in a day program). My mom has always had power of attorney, but would feel more comfortable with my sister having guardianship.

 

Also, I think he's competent to sign another power of attorney. It's reasonable that he cannot make medical decision, but can choose who makes those decision for him. It's reasonable that he cannot handle his money, but can choose someone to do that for him.

 

That's most of the story, but here's a little more:

1. I think my mom's concern is that my brother will be taken advantage of by the "freedom" he gets within his day program. They encourage him to fulfill his dream of writing a book, which he cannot physically, or mentally, do. Trust me, I've tried having him tell me what he wants to write, etc. He has a dream, but nothing to write. They tell him he can date, etc. He's not interested, but feels some pressure about this. They think he would be happier in a group home. He might well be, but his diabetes is not easy to deal with--he has insulin reactions in which he ends up in a seizure or unconsious (rarely, thank goodness, but VERY scary). He has neuropathy and foot issues. He needs more extensive care than a group home could likely give well. With a power of attorney, someone could encourage him to change it.

2. I want my mom to be comfortable, but I really hate inviting the court into family matters. I love my sister, but I don't like the idea of her always be "in charge of" him, forever, without changes in court.

3. Frankly, I don't want my brother to be declared incompetent. He's so competent in so many ways, that this is making me sob. For example, he loves to vote; I don't want that taken away.

 

Clearly, I am not emotionally removed enough to be be involved in this. Any insights, BTDT, etc. will be appreciated.

Edited November 6, 2012 by hana

[MooCow]

can you and your sister be joint guadrians?

[hana]

We could, and she asked me, but I don't want the guardianship to happen at all. Unless someone can give me strong reasons why it would be the best approach.

[MooCow]

well, how about because it would be best for your brother and it would protect him in the long run? I'm sorry I don't have a better answer :grouphug:

[brehon]

I'm just a little confused, sorry. What exactly are you against - just the guardianship or both the guardianship and a change in POA? What do you want to happen WRT your brother? A lot of the details depend on what state your db lives in. These instruments are generally the same from state to state; but, there are enough differences that you'd want to double check the rules in his state.

 

I know these types of decisions are hard. :grouphug:

[G5052]

A lawyer in your area can give you specifics, but their role is much broader than a medical and financial power-of-attorney and they usually are accountable to the court. A guardian can prevent an unwise marriage (yes, it happens) and overrule contracts.

 

I realize that it is a sad day when you have to press guardianship for a relative, but it really does protect the individual.

 

I went through this with an elderly relative, and others pushed through a POA. Frankly a lot happen afterwards and since that has made me wary of POA's for people with long-term mental impairment.

[hana]

Sorry if I was confusing. We are in Maine.

 

I'm only against the guardianship, not my sister, at all. Something has to happen to give my mom peace of mind in her last years.

 

But my mom's had a Power of Attorney for him for the past 20 years, and it's worked just fine. I'm scared of the proposed move to guardianship, and I don't see a good reason for it.

 

I do want him protected, but I'm not sure the court is the best source of that protection. My family had seemed to be handling it just fine until now.

 

GVA, I can totally understand guardianship with someone who is declining because one cannot predict how they might change. I just don't picture my slow-moving brother doing anything different than he has done for the last couple decades. If he started changing, we could move toward guardianship then.

 

Thank you all.

[brehon]

What exactly scares you about someone having guardianship v. a change of POA? Is it just court involvement? Why does this scare you? A court generally won't become involved unless the guardian is shown to be grossly negligent or engaged in some sort of criminal activity (i.e., embezzlement, fraud, misappropriation of funds, etc).

 

I'm truly not belittling your concerns and I understand that you have no concerns about your sister (which is wonderful!). I'm just trying to get you to think through your reactions and figure out what exactly concerns you (and you don't need to answer any of these questions here). Guardianship can be a very helpful legal instrument for someone.

 

One thing to consider is that it is usually much easier to establish POAs or guardianship while it isn't truly needed and everyone is calm. In a crisis it can be much more difficult to have these instruments enacted.

 

Also, think about talking to a lawyer and your sister about this.

Edited November 6, 2012 by brehon
Additional thought

[Unicorn.]

:grouphug: I don't know what to tell you, but maybe this website will help.

http://www.maine.gov/guardianship/qabook.shtml#guardian

[hana]

What exactly scares you about someone having guardianship v. a change of POA? Is it just court involvement? Why does this scare you? A court generally won't become involved unless the guardian is shown to be grossly negligent or engaged in some sort of criminal activity (i.e., embezzlement, fraud, misappropriation of funds, etc).

 

I'm truly not belittling your concerns and I understand that you have no concerns about your sister (which is wonderful!). I'm just trying to get you to think through your reactions and figure out what exactly concerns you (and you don't need to answer any of these questions here). Guardianship can be a very helpful legal instrument for someone.

 

One thing to consider is that it is usually much easier to establish POAs or guardianship while it isn't truly needed and everyone is calm. In a crisis it can be much more difficult to have these instruments enacted.

 

Also, think about talking to a lawyer and your sister about this.

 

Thanks. I know the court generally wouldn't get involved; it still makes me nervous. I do think guardianship in general is a good thing; I just don't think it's a fit for us. For example, my brother takes pride in researching candidates and issues and voting; he would lose that right.

 

We have a family meeting tomorrow and a lawyer appt. Wednesday.

[hana]

:grouphug: I don't know what to tell you, but maybe this website will help.

http://www.maine.gov/guardianship/qabook.shtml#guardian

 

 

Thank you; I've studied that pretty carefully today.