Why Guardianship Should Be a Last Resort

Terri Black had always planned to care for her widowed father in her home if he ever became too frail to care for himself. When her father’s dementia and other health issues became too much to handle, her father’s girlfriend, Helen Natko, called and asked Terri to take him.

At the same time, Helen transferred $200,000 from Terri’s father’s bank account into hers and incurred thousands more in gambling losses. Terri and her husband, Richard, flew to Las Vegas to take her father to their home in North Carolina, and despite what she said previously, Helen refused to let them in the house. The Blacks called the Las Vegas police, and the officers who showed up told Mrs. Black that her only recourse was obtaining legal guardianship.

A two-year struggle in the guardianship system ensued. Terri filed the court petition, while Helen countered with her own petition. A judge ordered a trial and appointed a temporary professional guardian. As this was happening, Terri’s father continued to live with Helen, who was continuing to spend his money.

Terri couldn’t even talk to her father on the phone, let alone take him out for dinner. The guardian set a schedule for telephone calls between father and daughter, and when Terri sought permission to take her father to a restaurant, the guardian and lawyers on both sides negotiated the terms, racking up $2,500 in fees! “I was treated like a criminal for wanting to take my dad out for dinner,” Terri said in an interview. The outing never occurred.

In another guardianship situation, in New York City, Errol Rappaport, 74, has been kept from seeing his 100-year-old mother after disputes with his siblings ended with a legal guardian being appointed for his mother by the court. Errol incurred thousands of dollars in unnecessary bills and legal fees just to spend a short visit of 2 hours or less with his mother, granted that he notifies her legal guardian by email at least 48 hours in advance.

Unfortunately, Terri and Errol’s experiences are far from unusual. State courts are appointing guardians to protect the vulnerable, but the U.S. General Accounting Office has identified hundreds of cases of negligence, as well as physical abuse and financial exploitation.

What is Guardianship and How Could This Happen?

Guardianship starts with a court proceeding in which a judge declares someone incompetent and gives another person the power to make personal and medical decisions for the person who has been declared incompetent. The person authorized with decision-making power is known as the guardian and the person for whom the decisions are being made is known as the ward. Guardianship over the person typically goes along with conservatorship over property, which in some states is called guardianship over property.

Guardianship and conservatorship are assigned when a person has been determined by a judge to lack the capacity to make rational and intelligent decisions in regard to his or her own medical decisions and/or finances. Usually it is a family member who petitions the court for guardianship and conservatorship, but it can also be a friend, or in some cases the County or City in which the ward resides. In some cases, as was the case with Terri and Errol in our examples, a third party may be appointed as guardian and/or conservator, particularly if no one close to the ward is deemed appropriate. Conservators are subject to the nightmare of “living probate,” meaning that, among other things, they must file annual accountings every year with the Probate Court or Commissioner of Accounts.

Guardianship Can Be Avoided if You Plan in Advance

A Power of Attorney is a legal document created by one person, known as the principal, to give another person, known as the agent (sometimes called attorney-in-fact), legal power to act on behalf of the principal. The document can grant either broad and unlimited powers or limited powers to act in specific circumstances or over specific types of decisions. Typically, a Power of Attorney is effective immediately, but is intended to be used only when necessary — at such time when the principal has reached the point where he or she is no longer able to make sound decisions or exercise sound judgment.

A General Power of Attorney is Greatly Preferred to Guardianship

Here’s why it is wise to have a Power of Attorney in place, rather than risking having to go through the Guardianship process:

• The principal retains more control over who makes the decisions and what decisions they can make;
• Power of Attorney has significantly lower costs compared to guardianship;
• No court is involved when creating or using a Power of Attorney;
• No annual accountings are required to be filed with the court when using a Power of Attorney;
• More privacy is maintained with a Power of Attorney (whereas probate court proceedings are public record);
• A power of attorney does not strip away the rights of the principal to make her own decisions so long as she is able (whereas a guardianship requires a declaration of incompetence which strips from the ward the right to make decisions for herself).
• The principal may revoke the Power of Attorney at any time so long as the principal has the mental capacity to do so, whereas a guardianship and conservatorship can only be revoked by the court. Once established, it can be difficult to revoke. Therefore, guardianship should typically only be used as a last resort.

A Power of Attorney would have been a preferable option for Terri or Errol’s families, to avoid the nightmare they went through.

When You Might Need A Guardian

As you can see, guardianship is an extreme form of intervention in another person’s life because control over personal and/or financial decisions is transferred to someone else for an indefinite, often permanent period of time. Guardianship should therefore always be a last resort, and everyone should have a power of attorney in place to avoid the need for guardianship and conservatorship. A properly-drafted General Durable Power of Attorney is the most important legal documents that a person can have and is an essential part of every Incapacity Plan and Estate Plan. (Incidentally, all power of attorney documents done for estate planning and incapacity planning are durable, which simply means that they continue to be effective even after the principal becomes disabled, which is, after all, the whole reason to have the power of attorney in the first place.) Click here for more details and other alternatives. However, there are times when guardianship and conservatorship are necessary, even for people who do have a power of attorney in place. This need arises typically when a person is making dangerous personal and/or medical decisions decisions or exercising dangerous lack of financial judgment, such as falling victim to repeated financial scams or being subject to financial exploitation by someone who they mistakenly think they can trust.

Do You Have a Power of Attorney?

If you have not done a Power of Attorney, now is the time to get it done by an experienced Elder Law Attorney as part of a comprehensive Incapacity Plan which includes an Advance Medical Directive and Long-term Care Directive®, or as part of a comprehensive Estate Plan which includes an Incapacity Plan and a living trust to avoid after-death probate.

If you decide to use our firm, be sure to ask about our Lifetime Protection Plan®, which ensures that your documents are properly reviewed and updated as needed, so that they will always have the proper effect under the law.

Please contact us at any time possible to make an appointment for an initial consultation:

Fairfax Power of Attorney: 703-691-1888
Fredericksburg Power of Attorney: 540-479-1435
Rockville Power of Attorney: 301-519-8041
DC Power of Attorney: 202-587-2797

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About Evan H Farr, CELA, CAP

Evan H. Farr is a 4-time Best-Selling author in the field of Elder Law and Estate Planning. In addition to being one of approximately 500 Certified Elder Law Attorneys in the Country, Evan is one of approximately 100 members of the Council of Advanced Practitioners of the National Academy of Elder Law Attorneys and is a Charter Member of the Academy of Special Needs Planners.