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Protecting Aging Parents: Legal Steps

At some point, many West Virginians are faced with taking over their parent’s finances and care.

At some point, many West Virginians are faced with taking over their parent’s finances and care. As part of the ongoing series, “Getting Into Their Reality: Caring For Aging Parents,” News Director Eric Douglas spoke with Franki Parsons, a Charleston attorney who specializes in estate planning and works with families who may need a conservatorship or a guardianship.

This interview has been lightly edited for clarity.

Douglas: What does it take? Or what condition does a person have to be in where the family starts thinking about the need to establish a guardianship for a person?

Parsons: You and I have talked before about a movie that came out on Netflix a couple of years ago, during the pandemic. It was called, “I Care a Lot.” The premise of the movie was a woman owned a business, essentially being a professional guardian. Only in the movie, they were just assigning people randomly. That’s not how it works. I want to make that clear. There is a process to make sure that the person who we believe needs a guardianship, in fact, does. My clients who come to me, nine times out of 10, have an adult parent who is showing outward signs of diminished capacity.

Douglas: Are you talking physical capacity or mental capacity? Or both?

Parsons: Oftentimes both, but having diminished physical capacity, meaning we’re having a hard time getting around, is not a criteria to have a guardianship. We are dealing with people who can no longer make day to day basic decisions for themselves.

Douglas: How does that process start? You say, “Mom’s not doing well. She can’t handle her own checkbook anymore.” Do I call an attorney first? Do I call the doctor? I mean, where do you get started in that process?

Parsons: Each story unfolds its own way. I will insert here, you brought up the checkbook. In West Virginia, we have two different roles. Guardian is guardian of the person and their affairs, a conservator oversees finances. Oftentimes, that’s the same person; whoever gets appointed guardian is considered a conservator. Sometimes, we don’t need both. It’s very situation specific. Normally, what I’m dealing with is an adult child who comes to me and says, “My mom is not doing well,” and outlines the ins and outs of what’s going wrong.

What we will need as part of this proceeding is an affidavit from a physician outlining the mental condition. So at some point, a doctor is going to need to be involved. You can’t just come to me irritated with your mom and say, “I need to be her guardian.” That’s not how it works. We need a physician’s documentation that there is in fact a diminished mental capacity or some type of issue of that nature.

Douglas: Hypothetically, my parent is not doing well. I’ve talked to my doctor, they’ve signed a form.

Parsons: There is an established form. It’s part of what I call the guardianship package. And to be fair, and for complete transparency, I do this for a living. However, you or anyone can get it online through the county fiduciary office and go through this process on your own. You don’t have to have an attorney. Often our clients have tried to do it on their own, and got overwhelmed by the legalese, or the process. And then they come to me to help them. I have other clients that come to me at the outset because someone else they know has been through it and advised them to get an attorney.

Douglas: In my hypothetical, I’ve talked to my doctor, they’ve agreed that my parent is not doing well. I come to an attorney.

Parsons: You’ll complete the petition. And it’s basic information, the person’s name, address, age, and then what we call in the code “interested parties.” Let’s say you have three brothers and sisters. All of the children of that person will be listed. And the code prescribes, if you don’t have kids, you know who we go down the line of who should be notified as an interested person. Official notice goes out that way.

There’ll be a period after that until the hearing is scheduled. It goes in front of a Mental Hygiene Commissioner. Anybody in this period can file a response and objection if they have any concern about who is going to be appointed guardian. I have had that happen. Lots of times, those are children who maybe don’t live in the area and don’t have a thorough grasp on the condition of their parent. And sometimes it’s just plain denial. You don’t want to accept that your parent is in this shape.

But there’s a lot of family dynamics that go into this work. There are several steps and safeguards that we are not violating someone’s due process, or their legal rights of any variety, by just assigning them a guardian.

Douglas: That’s exactly what I was thinking. This isn’t just “Oh, I’m going to take over my mom’s estate and I’m going to whip out her checkbook and start writing checks.” There’s a number of steps and this isn’t something that happens overnight. I assume this probably takes a couple of months by the time it’s all said and done.

Parsons: Usually, yeah. It’s not as long as other legal processes that I’m involved in, but from start to finish — two to three months, depending on if I’m waiting on that physician’s affidavit — sometimes takes a while, doctors are very busy. Once you have all the information, the courts handle those fairly quickly.

Douglas: What does this do for my aging parent? What’s the purpose? What’s the advantage of a conservatorship or guardianship?

Parsons: If someone is truly in that condition where this is a need, you’ve essentially stepped into the shoes of that person. And this ties back into what you and I’ve talked about before, and just general estate planning, powers of attorney are very important. Those are what I call your “life planning” documents. So a financial power of attorney and medical power of attorney are used while you’re still alive, but not able to make decisions for yourself.

If you’re in a coma, for instance, that financial power of attorney can be very crucial to whoever may be helping run your affairs like making sure your mortgage is paid, or any bills or obligations you have while you’re incapacitated. Those are what I call life planning documents. If someone has a well drafted financial power of attorney, that person, usually an adult child, can perform a lot of the functions and roles that a guardian does, actually almost identical.

Same thing with a medical power of attorney. Part of our medical power of attorney, we include a section or a provision where the person making the power of attorney can say who they would want to be their guardian or conservatorship.

Douglas: So there are life planning documents that help you take care of most of the financial things, even the power of attorney or the medical power of attorney. I guess, one of the roles for the guardianship is, if you have to send your mother to a nursing home, or make those kinds of major life decisions, these are major life plan issues. What can you do to prepare?

Parsons: I wish I had an answer for that. I don’t know that you do prepare people for that experience, and I’ve personally been through it. That’s how I got into this part of law. I don’t know that you can prepare someone for that. What you hope is that your parent who is in this situation is agreeable to this.

Douglas: There was a report just recently, I think it was 13,000 or 14,000 financial elder abuse cases reported in the state of West Virginia annually.

Parsons: I’m surprised that’s all there is. But think about this, a vast majority of those cases probably go unreported.

Douglas: On one level, this guardianship and conservatorship makes that harder with somebody else looking over your shoulder. So it’s an extra layer of protection for the person who has diminished mental capacity as well.

Parsons: Full honesty, things can fall through the cracks that way, too. There were brothers who were co-guardians and conservators. Long story, but one brother got mom’s bank statements and saw that the other brother was using her account for various recreational purposes. So we had to go back to the mental hygiene commissioner and have him removed, which was terrible.

The code spells out the duty you have as a guardian and conservator and also, with a financial power of attorney, you can’t just go about and do whatever you want. There are repercussions if you misuse these powers.

Douglas: What haven’t we talked about?

Parsons: One thing I do want to say that I think people in general need to hear. We attorneys have heard it all. People will come in and sit down in my office with me and say, “I am so embarrassed to tell you this.” Don’t be, because number one, that’s what we’re there for is to help you through situations that require a legal navigator. Number two, you would have no reason to know how to do a lot of these things. You’re segueing into this part of your life where your parents now need to be parented. If you’ve never been there before, and you’re not a lawyer, you wouldn’t know what to do. There’s no shame in not knowing.

Listen: What Alzheimer’s Means For Caregivers

For the second interview in our series “Getting Into Their Reality: Caring For Aging Parents,” News Director Eric Douglas spoke with Teresa Morris, the program director for the West Virginia chapter of the Alzheimer's Association. They discussed what Alzheimer’s disease is and what it means for the caregiver.

For the second interview in our series “Getting Into Their Reality: Caring For Aging Parents,” News Director Eric Douglas spoke with Teresa Morris, the program director for the West Virginia chapter of the Alzheimer’s Association. They discussed what Alzheimer’s disease is and what it means for the caregiver.

This interview has been lightly edited for clarity.

Douglas: Explain to me what we’re talking about. Explain to me what Alzheimer’s and dementia are. They are separate but they’re effectively the same thing.

Teresa Morris, the program director for the West Virginia chapter of the Alzheimer’s Association.

Morris: We typically describe dementia as a collection of symptoms that affect a person’s ability to function independently. Now, those symptoms or those traits can be memory loss, issues with reasoning, issues with sequencing, language deficits, the list goes on and on. But basically, it’s describing those symptoms as a result of brain changes that happen in an individual. Alzheimer’s is a type of dementia. So we have about 12 or 13 different types of dementia. So we have Alzheimer’s disease, there’s a Frontotemporal dementia, there’s a vascular dementia, Lewy body dementia, a Parkinson’s dementia. Those are characterized by different types of changes in the brain.

Douglas: And I guess the location in the brain is going to affect the problems they’ll have.

Morris: Exactly. Most all dementias are going to have memory loss, they’re going to have issues with recall, they’re going to have issues with language, but they can be characterized a little bit different. There might be more behaviors with someone that has a Frontotemporal dementia, there might be personality changes, there might be more aggression, maybe, with another type of dementia.

Douglas: Let’s discuss the challenges of being a caregiver for somebody.

Morris: A caregiver of someone with dementia, they deal with, obviously, the mental decline of the person that they’re caring for. The caregiver, often they experience grief, they’re going to mourn what they expected their parents or loved one’s end of life to be like, and it’s very, very different. The fact of it is, someone with dementia is going to require 24 hour care, eventually. All of the things that make someone independent are going to be lost. And so a caregiver will be charged with medication management, meals, safety within the home, financial considerations, you name it. Whatever you take care of in your own home, you’re going to have to take care of in your loved one’s home and that often comes with consideration for residential care or additional care in the home. And then that turns into financial considerations.

Medicare does not pay for caregiving, per se. So then you have to look at private pay for care in the home, or if you look at an assisted living or personal care unit, that’s still private pay. And then sometimes folks might need to qualify for Medicaid. And so then there’s the challenge of going through that process of selling maybe the home, or the land and all the possessions to be able to provide the care that someone with dementia.

Douglas: What are the support groups for? What would I gain from being involved with one of those groups?

Morris: Our support groups meet once a month. We try to keep them to about an hour in length, because people are busy. A lot of caregivers have jobs, so they can’t really be gone. Or if they’re a 24/7 caregiver, they can’t leave the person with disease for more than an hour.

I think you gain camaraderie. The people in those groups are absolutely going through what you’re going through. Maybe I haven’t been in your shoes, but the people, the members of our support groups, are walking it. They’ve lived it.

Douglas: How does somebody get involved? Where do they start?

Morris: If you’re interested in a support group, the best thing to do is to call our chapter office. That number is 304-343-2717. And you just tell us where you are. We’ll try to plug you into a support group that is local to your community. COVID did teach us that support groups are still effective, even if you’re not in person.

Douglas: I feel like we’ve got covered a lot but what haven’t we talked about?

Morris: One of the things was some tips for coping with caregiving. I always say a healthy caregiver is a good caregiver and an exhausted and sick caregiver is not so much. You have to really try to find time to manage your own stress and to try to take care of yourself. You have to go to your own doctor’s appointments. If you’re down, you’re never going to be able to take care of the person with the disease adequately. Be realistic about what you can and can’t do. I often see people who will say, what I told my mom, I’m never going to put them in a nursing home or a long term care facility. While that is a very valiant statement, there might come a time where that’s the best thing for you and for your loved one. And that’s okay. That’s what they’re there for.

You have to give yourself a break. You can’t jeopardize your health and your well being to take care of an individual. I always tell folks, whatever you’re doing, you’re doing your best. It’s okay. You’ve got to give yourself a break. Especially if you’re working and if you have your own family. You just have to know that you’re doing the very best that you can.

And it’s okay to ask for help. Your mom has cancer, and you tell your friends, you tell your church, and you’re gonna get casseroles for weeks, you’re gonna get cards, you’re gonna have people stop by, you’re going to be taken care of. But oftentimes, when you tell your friends, you tell your church group, whatever, my dad has Alzheimer’s, people don’t know what to say. They don’t know what to do, they often withdraw.

I believe we have to increase awareness of the disease so that our friends and neighbors and extended family become better at dealing with or helping someone who’s a caregiver.

What’s Happening When Someone Has Dementia?

Many West Virginia adults find themselves in the difficult position of caring for their children and looking after their parents at the same time. Conditions like dementia and Alzheimer’s disease are problems, but so are mobility and safety issues at home. It can be stress-inducing and make many people wonder if there is any help available and where to get it.

News Director Eric Douglas has found himself in the same position and wondered the same things. This is the first installment in a new interview series titled “Getting Into Their Reality: Caring For Aging Parents.” We’ll talk with experts about what people need to know as they get older, or when helping aging parents.

Dr. Lynne Goebel is a professor of internal medicine and geriatrics at Marshall University. She works at the Hanshaw Geriatric Center. She spoke with Douglas to explain what is going on inside the brain.

This interview has been lightly edited for clarity.

Douglas: Help me understand what’s going on in somebody’s mind or what’s happening in Alzheimer’s and dementia.

Courtesy Marshall University Joan. C. Edwards School of Medicine

Dr. Lynne Goebel is a Marshall Health physician who specializes in geriatric medicine. She is also a professor for the Marshall University Joan C. Edwards School of Medicine.

Goebel: From a pathologic point of view, I can tell you that 20 years before someone develops symptoms, they have stuff going on in their brain. You’re already developing these amyloid plaques in the brain. Usually, someone will start noticing that they’re having some trouble with their short-term memory, and they may still be functioning well. That’s what we call mild cognitive impairment and it’s a precursor, sometimes, to full blown dementia.

That stage lasts about five years, where someone has some problems, they know they have trouble, but they’re still able to get it together. And they use lists and other things, their smartphones, to help them keep on track and function well. Then they have trouble functioning. So, they may not be able to use the telephone. And they may be trying to use their remote control for their TV as a telephone. So, there’s some strange things that happen and they may forget to pay their bills.

Douglas: You mentioned the amyloid plaque. So, this is a layer or a plaque that’s forming within the brain that’s causing the brain to misfire effectively.

Goebel: Then there’s the next stage where you have actual buildup of protein inside the neurons in the nerve cells. This particular protein is toxic, and it kills the cells. As the disease progresses, you’re going to have death of these nerve cells, and that’s where people lose function, and they lose memories.

Douglas: The plaque is the first stage, then this protein build up is kind of a secondary stage. That’s really where the trouble sets in.

Goebel: We’re still finding out exactly what causes this disease. Initially we thought, “If we get rid of this plaque, then we would be able to cure this disease.” Well, some of the drugs that are out there, that they’re still studying, are targeting that but we’re not seeing the results we’d hoped for in people with early-stage disease. We may be seeing stabilization, but we still need to do more study on that kind of drug. And the side effects of those medicines can be worrisome, like swelling of the brain or micro hemorrhages.

Douglas: Is there any “Aha” moment that this person has Alzheimer’s? Is there a test for this? Is there any way to know definitively early on?

Goebel: Right now it is diagnosed clinically. You’ll go to a specialist, which could be either a geriatrician or a psychiatrist or a neurologist. And that would be the kind of doctor that would do this specialized testing. We do memory tests, and we also look at the patient and see how they’re functioning, because the functioning part is also key to making a diagnosis of actual dementia, as opposed to that mild cognitive impairment.

As far as an actual diagnosis, we’re getting close. There’s a lot of study going on right now about biomarkers. Your doctor could do a spinal tap and send that fluid off and they can say that you possibly have Alzheimer’s disease based on that. And then there’s a scan, called an amyloid PET scan, but your normal doctor can’t get this kind of scan. You can only get it if you’re in a study. On the Alzheimer’s disease website, they do have a study going on called the New Idea Study where you could possibly get this kind of scan. And there’s a doctor in West Virginia, who is participating in that study.

Douglas: Does it help to have that kind of diagnosis? I mean, even if you found out 20 years before the significant onset, we don’t really have any medications to treat it, there’s no surgery to remove it.

Goebel: They did a study where they did this amyloid PET scan on people, and we found out that they had probable Alzheimer’s disease based on that scan. We did treat them differently. We gave them more medications, families were able to plan better for the future, and I think it did make a difference in those patients. I think it is a good thing to try to get that diagnosis made. Now as far as disease modifying treatments, we don’t have that right now, but I think it’s in the near future.

Douglas: You say near as in five years or 15?

Goebel: Maybe even two to five years. I think we’re going to have something we can offer people. I’m hopeful at least.

Douglas: Let’s talk about caregivers for a moment. What do families and caregivers need to know?

Goebel: I always recommend the Alzheimer’s disease association. They have an 800 number that is 24 hours. So if you have a crisis situation, you can call and talk to someone who can possibly help you right at that moment. They also have a wonderful website with all kinds of very important information on there.

Depending on the stage of the patient, they can help with a variety of things, such as in the early stages. You want to do some planning and make sure you have all your legal paperwork and power of attorney in place, and also make plans for yourself as far as being able to say what you want to happen in the event that things get worse.

Later on, there’s other stages of disease, where you’re dealing with communication issues. And the caregivers really need training on that because we know that medication for behaviors is not great. In fact, certain medications can increase the risk of death in people with dementia. So we try to get caregivers to take training and to learn how to get around certain behaviors.

For instance, if a patient is not wanting to take a bath, which happens very regularly, how can you deal with this in a way to get the patient to do it, but that’s not going to be horrible for everyone? There’s a lot of training out there for caregivers.