Plan Properly to Avoid Guardianship
Here’s a riddle I asked during a virtual networking meeting last week:
I recently went to a place that I despise with some of my best friends. Can you guess the
location?
These were the two answers: a funeral home and a nursing home.
Hmmm. Those were terrific answers, but both were wrong. However, I do try to avoid both
places like the pandemic.
But here’s the correct answer: the courthouse. And more specifically, the Guardianship Part of
the Supreme Court.
This is a place nobody should have to enter. But I had no choice. A good friend was seeking to
be appointed as the legal guardian for a relative who was diagnosed with dementia, but
unfortunately, never executed a power of attorney. While nobody was contesting the need for
the appointment of a guardian, the appropriate person was put into question by the alleged
incapacitated person’s court-appointed attorney. It’s a long confidential story and I am not at
liberty to provide more information. All I can and will disclose is that after conferencing the
matter for an hour in the judge’s chambers, I was able to propose a plan to the satisfaction of all
parties. But before that, seven witnesses needed to be prepared to appear and testify at a hearing which was then adjourned. So, it’s not over. They will all be asked to return. And even when the hearing is concluded and the guardian is appointed, the matter will continue to be supervised by the Court until the passing of the incapacitated person.
Guess what? All of this could have been avoided had a proper power of attorney been executed.
Guardianship matters are perhaps the most emotional and intrusive court proceedings in this
country. They often become protracted, adversarial, and quite expensive. Just think about it. If
an individual loses capacity to make their own legal, financial, and/or health care decisions, that
person must be declared incapacitated after a court hearing. Testimony about that person’s
capacity and behavior is entered into the record. And that person is required, if possible, to listen
to the testimony and in some matters, participate. It’s quite serious, as that person faces the loss
of their basic constitutional right of self-determination. In some cases, the Court may even
appoint a guardian who has no relationship or connection to the incapacitated person who will be paid commissions for serving. Depending upon the incapacitated person’s net worth, and the
magnitude of the services performed, those commissions can prove to be exorbitant.
It's a most unfortunate set of circumstances. Accordingly, one of my missions is to keep my
clients . . . and myself . . . out of court. While I started my career as a commercial litigator, I
concluded that the only people who benefit from entering the courthouse are those who derive compensation for doing so. Hey, there’s nothing inherently wrong with that. We all need to
make a living. It’s just not what I choose for me or my clients.
Instead, I became a preacher of proactive planning.
And all of you can become disciples. Please feel free to jump on the proactive planning
bandwagon. If you want to ensure that your relatives, friends, and clients never have to enter the
courthouse, strongly encourage them to start their planning early so that they can name the
appropriate agents to make decisions in the event of incapacity. It’s as simple as executing a
comprehensive durable general power of attorney, health care proxy, and living will.
If you haven’t figured this out by now, please think of me for your estate and long-term care
planning needs.
Just don’t ask me to go to court.