By Vallerina F. Day
If you, like me, grew up watching movies where people were plotting to put away Aunt Sallie or Grampa Bob to get to her or his money; then as we get older and turn into Aunt Sallie or Grampa Bob, perhaps we harbor a certain paranoia.
Will the men in white suits knock on the door and whisk us away, kicking and screaming, to the looney bin because a greedy son or daughter (or spouse, for that matter), has accused us of losing our marbles?
Every state’s requirements and procedures for adult guardianship were, and are, different. A study and the resulting articles published by the Associated Press in 1987, found widespread problems in almost every state studied. The problems included brief evaluations by doctors not trained to assess capacity, lack of due process protections, poor representation on behalf of proposed wards, and the inability of courts to monitor existing guardianships, among other things.(1)
Happily, there have been many changes for the better in the guardianship system since the time when we were watching those old movies. In 1997, the National Conference of Commissioners on Uniform State Laws finalized a Uniform Guardianship and Protective Procedures Act (UGGPA)(2). The UGGPA addressed concerns about greater protection for the proposed ward’s liberty interests and right to self-determination, along with the need for zealous legal representation on behalf of the proposed ward. Although not all states have adopted all of the standards of the UGGPA, some have, and many have revised their guardianship procedures in accordance with them.
What can you do to protect yourself?
First, you can find and start a relationship with a lawyer in your area who practices in the area of “elder law”. The State Bar of your state can usually refer you to lawyers in your area who hold themselves out as “elder law” lawyers. Or contact the National Academy of Elder Law Attorneys at www.naela.org/. This lawyer should clearly understand your desires.
There may be times when you are incapacitated for a period of time because of illness or injury. You may designate your own advocate (someone you really trust and who agrees to this big responsibility) in a Living Will or other legal document. You can give this person the authority to make all health, including life or death, decisions in your stead, but following guidelines you have provided in the document. You can decide ahead of time if you want all possible life saving measures or, in certain circumstances, you want someone to “pull the plug.”
What if you develop mental deficits caused by dementia or other disease, without physical incapacity? You can also address this in advance with a Durable Power of Attorney (“DPOA”) which designates someone you really trust to take control of your person and/or property in case it is decided that you cannot manage yourself.
You can put limitations on when the DPOA becomes effective, such as not until a court has certified that you are unable to manage yourself and/or your property. You can revoke this DPOA at any time in writing. You can also relieve your designated guardian of having to post a bond, if you really, really trust them. Being a responsible guardian is work, and you can sweeten the pot by indicating to your chosen person that guardians typically make a small commission if they are put in charge of your money. Be sure your lawyer and the guardian-nominee have copies of this document.
Investigate the procedure for obtaining an adult guardianship in your area. Find out if the person filing the request must provide a guardianship plan, to include how the proposed ward will be taken care of, where they will live, and whether there are Less Restrictive Alternatives (LRA’s”) which will address some of the ward’s deficits. Ask if the court must consider these LRA’s before issuing an order of guardianship. Find out the conditions under which they court will appoint an attorney to represent the interests of the proposed ward if the ward cannot afford to hire one. If the court grants guardianship of the ward’s property (alone or in addition to his person), does the court routinely require the guardian to obtain a bond to protect against theft of the ward’s property or can the proposed ward or his/her attorney request one? Or waive one?
Each situation is unique and there are many considerations which have not been addressed herein. If you are at all worried, be proactive. Investigate your courts and begin a relationship with a lawyer with whom you share your special wants and needs. That lawyer can help you with your Living Will and any Powers of Attorney you may wish to make. Having these documents in your and your attorney’s hands will go a long way toward squashing that old fear of the Men in the White Suits.
(1) Guardians of the Elderly: A Failing System, Associated Press, 1987
(2) Uniform Guardianship and Protective Procedures Act, 8A U.L.A. 137 (Supp. 2001)
DISCLAIMER: This is NOT legal advice! Local laws can differ greatly. This article is intended only for information purposes. If you have questions about it, you can bring it to your local lawyer to see if/how it might be applied in your locality.
Vallerina F. Day is an attorney, now happily retired.