Hurley Elder Care Law Newsletter - January 2018
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January 2018   

Do I Need Guardianship Over My Mom?

Daily we talk to concerned family members, neighbors, and friends about potentially applying for guardianship over someone they care about. The decision to pursue guardianship should only be arrived at as a last resort—guardianship has many consequences and downfalls for the proposed ward and family. It is not a process that is usually easy or pain-free, but it is sometimes necessary. So, how do you know when you need to get guardianship over someone? Let’s consider a few scenarios.

Scenario 1: “For the past four years I have noticed significant changes with my mom. She started forgetting the names of some of her closest friends, then she got lost driving to church or the store, and a few times she has called me in a panic in the middle of the night because she is so disoriented and scared. I don’t think she’s safe to live alone anymore, but she is unwilling to even consider moving out of her home. Someone told me I had to become her guardian. What should I do?”

Scenario 2: “My 87-year-old dad has been distancing himself from us lately. He’s been dating a new woman, and I think she’s convincing him to marry her. I know she drinks a lot and is spending a ton of his money. She’s taking advantage of him—my mom just died two years ago, and he’s been lonely. She doesn’t care about him. I want to stop him from giving all of his money away to her, and someone recommended that I call you about guardianship. What should I do?”

Scenario 3: “My brother recently had a serious stroke and is unable to communicate or use his left side. I am his healthcare agent—he completed an advance directive three years ago with his attorney, but I am being told I have to become his guardian in order to help move him to a nursing home. What should I do?”

Scenario 4: “My sister has been living with my mom and taking care of her. My mom has diabetes, heart disease and now dementia because of some mini-strokes. She is unable to walk or care for herself, and things have been going okay with them until recently. Mom has fallen three times in the last month, and I think she needs to move to a nursing home. My sister is refusing to even talk about the nursing home idea. The nursing home I saw last week said I should call you about guardianship. What should I do?”

To answer the question, “What should I do?” in potential guardianship cases, we need to evaluate each scenario with four specific questions in mind:

1.    What are you trying to accomplish for your loved one? The problems that a guardianship can solve relate to the person’s physical well-being. A guardianship has nothing to do with finances. Are you trying to move your loved one into a safer, more restrictive environment (and maybe do so against their will)? Are you trying to sign a loved one into psychiatric treatment? Do you want to control your parent’s access to certain people? Are you trying to get yourself named as the decision maker? Answering this question is the first step in the guardianship process. Guardianship would help the persons in Scenarios 1, 3, and 4; guardianship would not help the daughter in Scenario 2. She is looking to control his financial decisions and should be asking about conservatorship. In Scenario 4, guardianship would help clarify who has authority to make decisions on the mom’s behalf.

2.    Do your concerns relate to a person’s capacity to make decisions for themselves? A guardianship is only used when someone lacks sufficient capacity to make or communicate significant responsible decisions concerning his or her health or safety according to the Georgia code. Adults are allowed to make bad decisions, and we only impinge on their autonomy when they show that they lack capacity to make good decisions. So, when individuals can communicate their decisions, name their choices, explain the consequences for their decisions and show there has been no coercion, they have the right to make whatever decision they want (even if we disagree and want them to chose differently). Guardianship would help the persons in Scenarios 1 and 3 as the proposed ward in both situations is showing a significant lack of ability to make good decisions. In Scenario 2, the dad may have no problem making decisions for himself; his daughter just may not like the decisions he is making. And in scenario 4, we do not have enough information to know if the mom has the capacity to make any decisions for herself. She does have dementia, but she may still have capacity to make some of her own decisions.

3.    Will being named her guardian give you the authority to address your concerns?  There are times when even though the problems being addressed relate to a person’s physical well-being and when even though the person lacks sufficient capacity to make good decisions, the main problems will not be solved by appointing a guardian. In these situations, a proposed ward can be found incompetent and a judge can appoint a guardian, but the problems that led to initiation of the guardianship process can still go unaddressed. This happens in situations of mental health treatment and substance use disorders—a guardian cannot force a ward to take any treatment. Before deciding to pursue guardianship, it is important to know if a guardianship can address the problem you are trying to solve.

4.     Do you have any other way of helping this person and solve these problems besides seeking guardianship? As we mentioned earlier, guardianship is the option of last resort. If there are other ways of accomplishing what you want, those ways should be pursued before seeking guardianship. In Scenario 3, the caller is already the healthcare agent for his brother. He should be able to accomplish all that he needs to for his brother by showing the executed advance directive. And in Scenario 4, a family meeting with a mediator or geriatric social worker may help this family come to an agreement about the nursing home. There are often alternatives to guardianship.

The decision to pursue guardianship should not be taken lightly. Our team is dedicated to helping families avoid guardianship when possible and obtain guardianship when necessary. To learn more or to find out if you should pursue guardianship, please call our office at (404) 843-0121 or email us at

Family Business
Even though 2017 was a fantastic year, there is always room for improvement.  Here are some of our staff’s 2018 New Year resolutions that we would like to share.

Sandi- Practice reading music and playing the piano several hours per week.
Danielle- Run a 10k race each month and a half marathon at Thanksgiving.
Lillian- Start bike commuting to work at least twice a week starting in May.
Theresa- Go out to eat only once a month.
Grace- Eat less processed foods. No more Hot Pockets!
Cheers to a Happy and Healthy New Year!
Upcoming Speaking Events and CEs
*All CE topics are certified for case managers, nurses and social workers.
Every 67 seconds someone in the U.S. develops Alzheimer’s, and one in three seniors will die with Alzheimer’s or another dementia.  The purpose of this activity is to review the basics of Alzheimer’s disease and then analyze the financial impact of the disease to families and employers as well as those affected by it. Knowing the options available and planning for the unexpected loss in functional and cognitive capacity is the best way for healthcare professionals to advise their patients and families. The earlier you plan; the more options are available. Dementia is hard enough when there is a plan in place; dementia with no plan will leave families exhausted, stressed and financially strapped. 

11:30 AM-12:00 PM: Registration & Lunch, 12:00 PM-1:00 PM CE Education, Arbor Terrace of East Cobb, 886 Johnson Ferry Rd., Marietta, GA 30068, RSVP:*This event is currently full. Please feel free to register for the waitlist and we will let you know if a space becomes available. 

Healthcare professionals are being challenged with meeting the needs of an older population that is living longer with more complex issues and fewer family supports than ever before. Do you ever feel overwhelmed/lost when dealing with this population? This seminar will offer guidance for professionals dealing with the new aging family. We will explore elder orphans, elderly immigrants, and blended families. 

5:00 PM-5:30 PM: Registration & Dinner, 5:30 PM-6:30 PM CE Education, Somerby at Sandy Springs, 25 Glenlake Pkwy NE, Atlanta, GA 30328 RSVP:

The laws and regulations impacting healthcare providers and consumers are constantly changing, both at the federal level and within our ftate of Georgia. Our 2018 update will feature an in-depth review of the new Georgia Uniform Power of Attorney Act which provides greater protections for individuals executing a financial POA, the Notice of Observation Treatment and Implication for Care Eligibility Act (NOTICE Act), an analysis of Medicaid funding as well as a look at the increase in “wrongful life” cases. We will review the 2017 Georgia legislative session accomplishments in the healthcare arena and provide a timely update on proposed federal legislation.

5:30 PM-6:00 PM: Registration, Wine & Dinner, 6:00 PM-7:00 PM CE Education, Brighton Gardens Buckhead, 3088 Lenox Road, NE, Atlanta, GA 30324 RSVP: *This event is currently full. Please feel free to register for the waitlist and we will let you know if a space becomes available. 

Healthcare professionals are being challenged with meeting the needs of an older population that is living longer with more complex issues and fewer family supports than ever before. Do you ever feel overwhelmed/lost when dealing with this population? This seminar will offer guidance for professionals dealing with the new aging family. We will explore elder orphans, elderly immigrants, and blended families.

5:30 PM-6:00 PM: Registration and Dinner, 6:00 PM-7:00 PM CE Education, Benton House of Decatur, 2711 Lawrenceville Highway, Decatur, GA 30033 RSVP:

For more details and a complete list of upcoming events, please visit Hurley Elder Care Law Community Education.
Recent BlogsMyths About Aging- This list by Deepak Chopra, M.D. is fascinating.

The Cost of Hearing Aids- Learn how the new F.D.A. law will reduce the cost.

What exactly is hospice?- Let’s start a discussion on hospice.

Should I update my Will?- Reasons to consult with an attorney.

Elder Care Resources
What is it like to have dementia?- Try a virtual dementia tour.

Medicaid Rules for Individuals- Take a closer look at Medicaid’s income rules.

Women and Alzheimer’s- Are women more vulnerable to this disease?

Beware of Credit-Card Skimmers- What are these new devices and how can I protect my ATM card?

Miles P. Hurley, JD, CELA  Miles P. Hurley founded Hurley Elder Care Law in 2006 to provide legal assistance to the elderly population on issues relating to aging including retaining independence, quality of life and financial security. Mr. Hurley is one of eleven attorneys in the state of Georgia to receive the Elder Law Attorney Certification, and one of approximately 400 nationwide. 
Hurley Elder Care Law is dedicated to the process of long-term care and estate planning. 
Call us today for a free phone consultation with a client coordinator at (404) 843-0121.

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Hurley Elder Care Law
100 Galleria Pkwy, Suite 650
Atlanta, GA 30339

Satellite Offices
2011 Commerce Dr. Suite 100, Peachtree City, GA 30269   
225 Creekstone Ridge, Woodstock, GA 30188       
340 Sugarloaf Pkwy. Suite 200, Duluth, GA 30097

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