Chapter 6 Guardianships and Conservatorships

• Library: Alzheimer's and the Practice of Law: Counseling Clients with Dementia and Their Families (ABA) (2013 Ed.)

CHAPTER 6 GUARDIANSHIPS AND CONSERVATORSHIPS

"Circling Schemers," by Shay Jacobson, RN, MA, NMG, President Life Care Innovations, Inc.

Mrs. Weiss was in the throes of a "casual care" relationship when referred as a possible guardianship candidate. "Casual care" refers to the complex web of neighbors, acquaintances, service providers, and others who occupy the periphery of a client's life and then gradually (or suddenly) find a pivotal role for themselves in the care and oversight of a vulnerable person. They appear to be well-meaning, sincere, and good-hearted, but are not.

Mrs. Weiss and her husband were financially successful, had assets that hovered in the area of $35 million, and had established a solid estate plan. However, when Mr. Weiss died, Mrs. Weiss's world spun in an unexpected orbit.

Mr. Weiss had always taken care of all of their finances. Tackling this unknown and unsavory job at the age of 84 was not an appealing proposition for Mrs. Weiss.

Compounding her lack of interest in managing her finances was Mrs. Weiss's situational depression following her husband's unexpected death, and the mild dementia she was hoping no one had noticed over the past couple of years. That dementia was an obstacle to the development of new skills. Even if she had an interest in juggling the details of her $35 million estate, her dementia would have precluded the acquisition of these new skills.

Fortunately, Mrs. Weiss had a number of financial professionals charged with managing her estate.

Sadly, it was one of these financial representatives who let her down first. His fees for managing her IRAs had, on average, run about $7,000 annually before Mr. Weiss died. In the first year after Mr. Weiss's death, those fees spiked to a shocking $200,000. While it's entirely possible there was a bit of extra management needed in those post-mortem months, an increase of this magnitude is strongly suggestive of opportunism. Mrs. Weiss's ability to recognize the irregularity of a staggering fee hike was clouded by her depression and blossoming dementia.

The next person to see the glow of illicit opportunity in Mrs. Weiss's situation was the relative of a neighbor. She was in the area just enough, and had heard just enough, to understand that a lonely, grieving, and slightly demented woman with a great deal of money might appreciate some company. She might even appreciate it so much she would pay for it. Maybe she would even add her to the will!

The neighbor's relative started popping by quite often to see Mrs. Weiss. Now, she was playing the role of a close and dear friend whose every moment was consumed with the comfort and well-being of Mrs. Weiss.

The new friend, who we'll call Bonnie, ingratiated herself initially by offering to help out around the house and shop for groceries. There were probably a lot of lingering conversations over coffee as groceries were dropped off and the garden was tended, and Mrs. Weiss quickly warmed to the idea of having someone fussing over her with great regularity.

Bonnie's next offer involved all that pesky money and property management. She put her name on a $400,000 bank account as co-owner with Mrs. Weiss. She became power of attorney. Long-standing relationships with financial professionals and institutions were systematically terminated, which was, in the end, Bonnie's undoing.

The trust officers who had dutifully and honorably served Mrs. Weiss for 20 years would not merely stand by and allow this new best friend to unravel Mrs. Weiss's estate plan. They decided to stop Bonnie by pursuing guardianship.

The longtime trust officers brought the matter to the guardianship court for assessment of Mrs. Weiss's competencies and protection of her person and assets. Mrs. Weiss went through a battery of tests and was diagnosed with moderate dementia and depression. It was determined that she was not able to manage her finances but should participate in her personal life choices. A third-party guardian was appointed to sort out the web of intrigue that surrounded this gentle woman.

The guardian sifted through the rubble of Bonnie's activities. The $400,000 bank account that she put her name on as co-owner was returned to its prior sole owner, Mrs. Weiss. The new will Bonnie had orchestrated, and the relocation of the trusts to new financial institutions, was determined by the court to have been done after Mrs. Weiss's testamentary capacity had waned. The original plan was thus honored. Mrs. Weiss was provided professional caregivers that came from a licensed, bonded, and insured agency.

Mrs. Weiss now lives in her home with a 24-hour caregiver. She travels weekly to the university where she once worked to attend lectures and remain a part of the professional community that was her family. The guardian serves as insulation from professional opportunists that recognize her vulnerability. Without the protection of a guardian, her world would predictably remain in a helter-skelter pattern, and her financial investments would fill the pockets of the circling schemers who prey on the vulnerable.

Guardianship is designed to protect those who are overwhelmed due to age-related frailties, disabilities, or injuries. The goal is to maximize independence but also to protect and proactively prevent exploitation. Mrs. Weiss is living in the community, using her resources to enhance her person-centered care plan as she ages in safety.

Now that the era of casual care has ended, Mrs. Weiss is thriving in a structured setting, and her plan, as designed by her and her husband, is back on track.

GUARDIANSHIP TO THE RESCUE

A guardianship is a legal relationship that is established and monitored by state courts under state laws. It is a mechanism for empowering someone (the guardian) to act on behalf of an incapacitated individual (the ward).

In the case of estate planning for a client with Alzheimer's, guardianships are usually a last resort. Unfortunately, if lawyers are approached by a client with a loved one suffering from Alzheimer's and proper planning was not undertaken prior to them becoming a client—that last resort will become a necessity, unless a geriatric psychiatrist or other appropriate health-care professional finds that the client retains sufficient testamentary capacity. (See chapter 2.)

Each state has its own statutes, rules, and procedures for initiating guardianships and for managing the personal and financial affairs of adults who have disabilities or are incapacitated for whom a guardian is appointed. The terminology associated with these legal relationships varies a bit by state. Some states use the terms "guardians" and "conservator" interchangeably while some states use the term "guardian" to refer to a guardian of the person, and "conservator" to apply to a guardian of the estate.

Whatever term a state uses, the purpose of the guardianship or conservatorship is to ensure the financial and personal well-being of adults who are incapacitated or have disabilities.

Most states tend to impose the least restrictive guardianship or con-servatorship as is necessary to maintain the well-being of the incapacitated person so as to preserve as many rights of the incapacitated person as possible.

Practice Pointer: Guardianship versus Powers of Attorney

An agent under a power of attorney trumps a guardian with respect to the exercise of any powers covered by the power of attorney. This is because courts defer to the person who was nominated by the person with alleged disabilities at a time when the person was not under a disability.

Guardian Defined

A guardian is someone appointed by the court to serve as a representative of the person with a legal disability—for purposes of this book, Alzheimer's disease or other dementia.

A court-appointed guardian has the authority to make decisions for the person with Alzheimer's without judicial involvement, provided the decisions are consistent with the procedures and requirements of the governing statutes or regulations of that state. Guardians typically are required to provide periodic accounting to the court.

Disability must be assessed according to statutory definitions and "cannot be inferred merely from old age."¹

Case Study

Age, by Itself, Is Not a Disability

Some people are the subject of guardianship proceedings because their conduct is somewhat contrary to our natural norms of society.

A 96-year-old man wanted to go to Las Vegas and marry his caregiver. Some of his family members questioned whether he was competent and started a guardianship proceeding to try to stop him. The judge did find that although he, too, thought it was a stupid decision to marry the caregiver, this man was competent to make those stupid decisions. The man did not need a guardian and was free to make bad personal decisions.

One of the authors, Kerry Peck, notes that, "Competent people are able to make stupid decisions, and we hear judges say that on a pretty regular basis."

Practice Pointer: Ask "Orientation Questions"

It is a good idea for lawyers to ask "orientation questions" when dealing with potential clients who may come in for an estate plan or ask for a lawyer to defend them against a guardianship action, and always when they ask a lawyer to act in the role of guardian ad litem. Orientation questions are simply questions to see if clients can understand the time and the place they are in, who they are, and what's going on currently in the world.

Basic orientation questions would involve asking individuals their address, how many children they have, their age, their name, and, if they are old enough, about their grandchildren.

Of course, lawyers are going to need some family collaboration on whether these answers are correct. It is also good to ask about current events. Is there a presidential election coming up? Who are the candidates? Is there some major world event, such as a hurricane, that has occurred? Where did it occur?

Check a client's accuracy in sequencing various...