Question: Since my mother passed away a few years ago, my dad has been living alone at home and managing somewhat well. Shortly after her death, we visited a lawyer, and my father made me his agent under a power of attorney.
I visit him frequently and have coordinated to have someone come by his house on a part-time basis to do some shopping, light cleaning and laundry. My father’s behavior started noticeably changing a few months ago. I took him to a neurologist, who formally diagnosed him with dementia.
Things have become increasingly difficult since the diagnosis. For example, my wife and I asked that he sell the car parked in his garage. He refused. My wife and I thought it best to take the car keys, which we have done. When he speaks up about going somewhere, either my wife or I help him.
He has wandered from the house on a few occasions. We found him in a park that he has frequently visited not far away, but it seemed as if he didn’t really know where he was or how to get home.
But the biggest issue occurred most recently when he acted aggressively toward the caregiver, threatening to hit her with his cane. I am unsure as to what to do next. His latest episode scares me about liability if he hurts someone. Where do you think I should go from here?
Answer: Although dementia and memory loss are frequently thought of as a disease of quiet retreat from one’s former self, your father’s behavior is not uncommon. Dementia patients can exhibit violent outbursts and even inappropriate sexual behavior.
As a family member, the important thing to remember is that these behaviors are not your father but rather the symptoms of his disease. Your father will need treatment and care.
Your father granted you the authority to act as his agent under a power of attorney, and, if you haven’t done so already, you should step up and exercise that authority. For example, if he is unable to manage his financial affairs, you should take action to protect his accounts.
With respect to his car, if the DMV has not already been notified, you can refer your father’s dementia diagnosis to the department. The DMV will conduct a re-examination. If he cannot pass the test, which he likely cannot, then his license will be revoked. It may be easier for him to have a neutral third party tell him he can no longer drive instead of you and your wife.
There is significant concern in his wandering off and his aggressive outbursts. Behaviors like these may portend a transition to a more restrictive setting with intensive treatment. A restrictive facility should protect him from wandering off and will make sure he cannot leave.
The law, however, provides that a person with dementia cannot be placed in a restrictive setting without court intervention. So you will need to seek a conservatorship to get the appropriate authority under law to place him there. A conservatorship requires a court proceeding, and you should seek the assistance of an attorney in getting this process underway.
But going to court and seeking a conservatorship really should be your last resort. You should explore all possible options with his doctor first. There are a number of medications that mitigate the symptoms of dementia, and these medications may address his problems and keep him in his home a little longer — a win-win for everyone.
If conservatorship is the only available option, placement in the proper setting should protect you and your father’s estate from liability resulting from his behavior. Courts have been reluctant to impose liability on a conservatee (i.e., a conserved person) for injuries resulting from dementia-related behavior. The rationale has been that professional care providers working with such patients are aware of the risk of injury and assume that risk as part of their job.
Even once you have the authority to place your father in an appropriate setting, finding the proper placement may not be an easy task. Be patient in your search, and eventually you will find the right place that can offer the treatment he needs.
Preston Morgan is a partner at Kopper, Morgan & Dietrich, a Davis law firm providing family law, estate planning and trust litigation representation. His column is published every other week in the Davis Enterprise. To pose a question to Preston Morgan, contact him at https://kopperlaw.com.
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