Guardianships and Conservatorships

Seeking Legal Protection for an Incompetent Relative

Grace was alarmed when her 81-year-old father, a widower named Vincent, hired a contractor to insulate his garage. The contractor had knocked on Vincent’s door one day, convinced him that he needed new insulation, persuaded him to fill out and sign a loan application, and accepted a check as a down payment.

Turns out the garage didn’t need insulation — it wasn’t even heated. The contractor vanished, taking Vincent’s personal and financial information with him.

Protecting Them From Themselves

Unfortunately, this wasn’t the first time Grace noticed that her father’s good judgment was ebbing. Frequently, he overdrew his checking account and had to pay bank fees. He occasionally locked himself out of the house, and, worse yet, he often forgot the names of his children.

As the only one of Vincent’s children who lived nearby, Grace knew she had to take control of his financial affairs to prevent him from making a potentially disastrous mistake.

Grace took her father to meet with a lawyer, who drew up powers of attorney for property and healthcare. That gave her the authority to manage Vincent’s finances and make decisions about medical treatment if his doctor considered him mentally incapacitated. To cover all bases, she later obtained a statement from Vincent’s doctor to that effect. (For more information about powers of attorney, see “When an Agent Is Overpowering.”)

Aside from the heartbreak of seeing her father decline, Grace was lucky because Vincent recognized his failings and acted. Many people aren’t so fortunate. Relatives who have been in charge all of their lives understandably fear the loss of their independence and decision-making authority. In some cases, family members must initiate guardianship proceedings, meaning they must prove their relative’s incompetence in court. Needless to say, that strains both relationships and wallets.

Taking Immediate Action

An incompetent adult can’t make or communicate rationally about his or her well-being, because of illness, an accident or advanced age. (Poor judgment, such as illicit drug use or excessive gambling, doesn’t alone indicate incompetency.) If your family member seems unfit, act immediately to ensure that he or she lives safely and healthfully, eats a balanced diet, and interacts socially as much as possible.

Check to see if he or she has a living trust that allows a successor trustee to take the reins. You may have to petition the court to declare your relative incompetent and appoint a legal guardian (known as a conservator in some states) who can protect your family member’s estate.

Proceeding to Guardianship

Taking your relative to court is an arduous process for everyone. And some judges don’t wish to rob elderly people of their independence without overwhelming proof of incompetence. Sometimes a family member can appear uncharacteristically normal in the courtroom, and you could find yourself portrayed as the callous relative with ulterior motives. Certainly consider guardianship proceedings a last resort, after all attempts at persuasion — by other family members, professional advisors, doctors and family counselors — have failed.

Any person, including family members or a concerned social services agency, may file a petition for a determination of incompetence. The allegedly incompetent relative already may have a lawyer, or the court will appoint one, known as a “guardian ad litem.”

Guardianship proceedings begin with reports and recommendations from doctors, social workers and other experts who will advocate for or against a finding of incompetence. The judge will also observe the person before making a determination.

If the relative is deemed incompetent, the court will appoint a guardian, though not necessarily the person who filed the petition, but someone (or an agency) the court believes will act in the family member’s best interests. Then the incompetent relative becomes the guardian’s ward.

In some instances, the court gives the guardian general or limited control over the ward’s affairs. A guardian of the estate, for example, manages the ward’s property and finances. A guardian of the person has the authority to approve medical, legal and other professional services. A general guardian can take care of property and person. Note that in many states, a general guardian or guardian of the estate must post a bond before receiving the ward’s property.

Appealing the Court’s Decision

An adult who is adjudicated incompetent may appeal the court’s determination. Later on, if the ward’s no longer incapacitated and believes he or she can manage his or her own affairs, dissolve or terminate the guardianship.

The court maintains oversight of the guardian to ensure the ward’s proper care, such as the right to approve an accounting of all expenditures made on behalf of the ward, including the guardian’s fees and expenses. In addition, it may require the guardian to file yearly reports detailing the ward’s (and his or her estate’s) care.

Planning Ahead

Optimally, relatives will retain all of their faculties until they peacefully die of old age. None of us can bank on that, of course. If your family members are still with us and still competent, now is the perfect time to ensure they have solid estate plans, such as durable powers of attorney for property and healthcare.

Good planning can prevent the anguish and expense of guardianship disputes. If intervention becomes necessary, don’t go it alone. Be sure to seek the advice of experienced legal and financial advisors. Please give us a call to discuss the best options for you and your family.

Sidebar:   When an Agent Is Overpowering

A power of attorney works well when the principal — your parent, for example — selects an agent (also known as an “attorney-in-fact”) who is honest and caring, exercises a high standard of care, and always acts in the principal’s best interests. But what if your parent’s agent is corrupt or abusive?

You can petition the court to revoke a power of attorney, assuming the principal is unable to do so, if you can prove that the agent’s actions or negligence has caused (or threatens) substantial harm to the principal’s person or property. If the court agrees with you, it can revoke the power and appoint a guardian to provide for the principal’s best interests.