In this week’s Column, I will provide 3 tips for caring for a loved one with Alzheimer’s.

Create a Safe Environment for your loved one with Alzheimer’s

During the early stages of Alzheimer’s disease, your loved one may be able to continue living on their own. Even then, it’s important to keep a very close watch on them and be aware of when that begins to change.

As Alzheimer’s progresses, you should take precautions around the home to keep your loved one safe from falls. You may need to remove obstacles around the home and install ramps to make it easier for the elderly person to get around.

You may also want to install locks on substances like alcohol and things like guns that can be dangerous to your loved one. Think about fire safety as well.

Hot water is another potential danger. As Alzheimer’s progresses, you may need to lower the thermostat so that the water cannot get as hot and potentially burn the senior.

Keep Frustration to a Minimum

When your loved one is diagnosed with Alzheimer’s disease, this is often coupled with a lot of frustration. A person with Alzheimer’s disease can experience frustration with forgetting to do things they were once able to do. They experience frustration because they struggle to follow and understand tasks and communication.

Frustration can also come from loss of independence. It is important to recognize these frustrations and take steps to reduce the frustration.

Provide your loved one with choices whenever possible. Allow your loved one to help with tasks they are capable of, even if it takes them longer that it may take you, or longer than they were able to do it before their diagnosis. Make directions and requests simple.

When your loved one needs to focus, eliminate distractions. Create a calm environment. Be patient with your loved one and take time to allow them to do tasks.

Work at Communication with your loved one with Alzheimer’s

Communication often becomes difficult when an elderly loved one has Alzheimer’s disease. This is an area that takes patience. When communicating with your loved one, they may get discouraged if they can’t understand you or you can’t understand them. Always maintain eye contact with your loved one when communicating. Keep communication simple and to the point, but positive.

When your loved one is attempting to communicate with you, be sure to allow them to talk. Be careful not to interrupt or try to complete their sentences. This can add more frustration. Keep conversations going with your loved one as long as possible by encouraging them and truly listening to concerns.

Use physical touch, such as holding a hand or touching a shoulder, to communicate with your loved one. Don’t take outbursts personally. The illness causes you loved one to do and say things they may not normally do or say. Always be aware of your tone and keep it kind.

Alzheimer’s is a disease with many varying characteristics.  It can wreak havoc on the person our loved one once was.  Caring for a loved one with Alzheimer’s can be frustrating and difficult.  However, patience is the overarching quality that a caregiver must possess to deal with an elderly person with Alzheimer’s disease in a loving and positive manner.

Consulting with professionals who understand the Elder Law and diseases like Alzheimer’s and Dementia will provide peace of mind, knowing that are developing the best plan possible to provide for your loved one’s care.

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How does one go about initiating a guardianship?

Any interested party may file an application with the proper court requesting that a guardian be appointed for a person believed to be incapacitated.

What is the definition of an incapacitated person?

A person may be found to be incapacitated if due to a mental or physical condition he or she is unable to: (1) provide food, clothing, or shelter for himself or herself; (2) care for his or her own physical needs, or (3) manage his or her own financial affairs. A finding of incapacity will allow the person to be placed under guardianship. A minor person (someone under 18 years of age) and missing persons are also considered to be incapacitated.

Once a guardian is appointed, does the incapacitated person lose all rights and powers?

Not necessarily. A judge may appoint a guardian for an incapacitated person, but limit the guardian’s powers so that all rights and powers except those granted to the guardian are retained by the incapacitated person.

Who may serve as guardian?

The court will appoint a guardian for an incapacitated person in the following order of priority: (1) the incapacitated person’s spouse; (2) the person’s nearest kin; and (3) an eligible person who is best qualified to serve.

Do the types of guardians vary?

Yes. Generally, there is a guardian of the person and a guardian of the estate. The guardian of the person has the duty and power to provide the incapacitated person with clothing, food, medical care, and shelter. The guardian of the estate has the duty and power to manage the incapacitated person’s financial affairs. One person can fill both positions.

Who is not allowed to serve as guardian?

A person may not be appointed guardian if the person is a minor, a notoriously bad person, an incapacitated person, a person who is a party to a lawsuit affecting the incapacitated person (with some exceptions), a person who owed the incapacitated person money, unless it is repaid, a person with adverse claims to the incapacitated person or his property, an inexperienced or uneducated person, a person the court finds unsuitable, a person eliminated in a person’s designation of guardian, or a nonresident without a resident agent.

Are there costs involved in a guardianship?

Yes. These costs include attorney’s fees, filing fees, attorney ad litem fees, and bond premiums to be paid out of the incapacitated person’s estate. These fees will be quite substantial, so you must be prepared.

What rights are retained by the incapacitated person?

The incapacitated person has the right to receive a copy of the application for guardianship and other documents filed with the County Clerk. He or she is also entitled to be at the hearing to determine whether he or she is incapacitated.

Is an alleged incapacitated person represented by an attorney?

Yes. When a guardianship is filed, the court appoints an attorney ad litem to represent the interests of the alleged incapacitated person. The person can also retain his or her own attorney.

What happens at a guardianship hearing?

The person who filed the application must prove the incapacity through testimony and medical evidence. The alleged incapacitated person has a right to bring his or her own witnesses to court and also the right to speak to the judge. The alleged incapacitated person may also request a jury trial. The judge or jury will determine if the person is incapacitated.

How soon can a guardianship hearing be held?

The earliest date to schedule a hearing is the Monday following the expiration of 10 days after the alleged incapacitated person has been personally served with the application of guardianship.

Upon appointment, how does a guardian qualify?

The guardian must file an oath and post a bond in the amount set by the court to insure proper performance of his or her duties.

Does the guardian have reporting requirements to the court?

Yes. The guardian of the estate must file an inventory within 30 days of qualifying. The inventory must list all assets of the incapacitated person coming into the guardian’s hands and all debts owed to the estate. The guardian of the estate must file an annual account to report all receipts and disbursements. The guardian of the person must file an annual report on the location, condition, and well-being of the incapacitated person.

What if there is an immediate need for the appointment of a guardian?

A temporary guardian can be appointed without notice to the proposed incapacitated person if his or her person or property is in imminent danger. Usually a temporary guardianship will not exceed sixty 60 days. However, if a permanent guardianship application has been filed and is contested or challenged, the court may appoint a temporary guardian to serve as temporary guardian until the contested guardianship action is resolved.

Does the person for whom a temporary guardianship has been appointed have any rights?

Since that person is not presumed to be incapacitated, he or she retains all rights and powers not granted to the temporary guardian. He or she is entitled to be served with a copy of the documents that are filed. The court must appoint an attorney to represent the alleged incapacitated person. The court must hold a hearing no later than ten 10 days after the date of filing the temporary guardianship to determine whether there is a need for continuation of the temporary guardianship.

Pursuing a guardianship for a loved one can be an expensive and difficult process. An attorney can assist you in determining if a guardianship is appropriate for your particular situation. If you have further questions or are considering a guardianship for a loved one, you should consult your attorney.

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas. www.moakandmoak.com

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By Sam A. Moak

Common Law Marriage

The information in this column is not intended as legal advice but to provide a general understanding of the law.  Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

The common link, and most ironic thing about, in virtually all common-law marriages is that the marriage is not officially recognized until its over.

It was not until the flame had gone out of Emmitt Smith and Hope Wilson’s romance and he had moved on to another relationship that Wilson said she and Smith were common-law husband and wife.

Claims of common-law marriage is not something reserved only for the famous.  Men and women claim to have been common-law married when one party is trying to inherit under the other’s will, receive insurance benefits, bring a wrong-ful death action on the other’s behalf, or share in Social Security disability or worker’s compensation payments.

Common-law marriage is a difficult thing to prove no matter what stage it is in, on or off.  Texas is one of only 11 states, and the District of Columbia, that recognize common-law marriage.  Common-law marriage in Texas has its roots in our rural past.  A man and woman might have lived on a rural ranch together for 50 years, raised children and grandchildren, yet never had a ceremonial marriage because they could not take time off for a daylong trip to the nearest justice of the peace.

Common-law marriage is not just something of the past in Texas.  It is still a viable option.  How is one established?  The governing statute is §2.401 of the Family Code.  This statute states that an informal marriage can be proved either by filing a declaration of marriage with the county clerk or by meeting a three-part test.  Part 1, the couple had an agreement to be married, either explicit or implicit; Part 2, after the agreement, they lived in Texas as husband and wife; and Part 3, they represented to others, often called “holding out,” that they were married.

The existence of a marriage is question of fact.  It can be proved by direct or circumstantial evidence.  The credibility of the parties is extremely important because juries are often inclined to reward individuals they perceive as dutiful victims or punish perceived opportunists.

No magic words are necessary to establish an agreement to be married.  Texas case law has found a common-law marriage existed where evidence showed the maintenance of a common household, raising of a family together, establishing joint financial accounts, purchasing property together, or filing joint tax returns.

In today’s society it is easy to get married formally, some may argue too easy, yet some people never formalize their wedding relationship with a wedding ceremony.  However, based on the problems that can arise without this formalization, it is better to rely on common sense than on common law to secure the future.

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C.  He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.

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