Earlier this year, former hockey player Mark Pavelich was arrested and charged with assaulting a neighbor. In October, he was found unfit for trial. It was reported that, before the incident, his family believed he was suffering from a degenerative brain disease, they had noticed a decline and he had refused help.
A degenerative brain disease can completely change a loved one’s personality and temperament. It often puts a loved one at great risk of being harmed, either as a result of his behavior influenced by the disease, or at the hands of those willing to take advantage of one with diminished mental capacity.
These issues are not new. Even before 1900, the Minnesota Supreme Court decided many cases that arose out of questions of mental capacity and undue influence. These cases are hard and often times heartbreaking.
What family members may not know is that the Minnesota law provides quick and often effective mechanisms to protect a loved one before harm has been done. By statute, one can petition the court to appoint a guardian to make personal decisions for a loved one, including decisions regarding living arrangements and medical care. A petitioner can also ask a court for the appointment of a conservator to manage a loved one’s finances, make financial decisions and even undo some financial decisions impacted by the impairment. Through the petition, a petitioner can self-nominate or can nominate a friend, family member, advisor or professional fiduciary. If appointed, the guardian and/or conservator will work with the family to determine the care and financial measures that best serve the loved one’s interests.
These cases can be very effective. If there is an emergency, a court might appoint a guardian and/or conservator just after filing, and then hold a hearing within a few days. This is unlike most other civil court cases and means that, in appropriate circumstances, changes can be put in place to protect a loved one almost immediately. These cases can also be quite difficult. Issues arise. For example, the loved one—especially if suffering from a cognitive deficiency—may lack insight into their condition and may resent the petitioner or fight to keep control. If there is an issue of undue influence, family members might disagree about care and finances. However, the risk of doing nothing is often far greater than these potential challenges.
While these matters can be litigated and decided by a court, there are opportunities along the way to work with mediators to attempt to resolve these issues outside of the judicial system.