Howard S. Krooks, JD, CELA, CAP, is an elder law and special needs planning attorney practicing in New York and Florida. He answers questions from advisors facing long-term care planning issues.
Advisor Perspectives welcomes guest contributions. The views presented here do not necessarily represent those of Advisor Perspectives.
Dear Readers – I am frequently approached by clients with questions about guardianship. Is it appropriate to commence a guardian proceeding? What do I have to prove? What concerns should I have about bringing a guardian proceeding? Can it be avoided? I’ve asked Howard Krooks to answer those questions in lieu of my weekly article. Bev Flaxington
Guardianship is considered a means of last resort in most states, meaning that if there are other, less restrictive ways of managing a person’s affairs, they must be pursued before asking a court to get involved. Appointment of a guardian requires that a court restrict or remove a person’s civil rights. Thus, if there is a durable power of attorney in place, it may not be appropriate to commence a guardian proceeding over the person’s finances because the agent under the power of attorney can implement a proposed financial transaction without restricting the person’s rights. The court will want to know why the agent appointed under the power of attorney cannot manage the person’s finances without court involvement. In some circumstances, it may be that the power of attorney is not drafted to allow the agent to consummate a particular transaction, and, in that case, even though there is a power of attorney, it may be necessary to appoint a guardian with limited authority.
If a healthcare decision is involved, the court will want to know whether a healthcare proxy/surrogate has been appointed. If so, then why is it necessary to appoint a guardian to make personal needs decisions? Here, again, it may be that the document executed is insufficient to confer the necessary decision-making authority, or perhaps the appointed agent is no longer available to serve and the person has become incapacitated so that he or she can no longer appoint another agent, thus requiring the court to decide who shall make these types of personal needs decisions.
If the appointment of a guardian is sought, a family member (it is often a family member that brings these proceedings, although other interested parties may petition the court for the appointment of a guardian) is required to show that the person lacks the capacity to make his/her own decisions, and that a guardian must be appointed to make those decisions for the individual. One consideration that must be addressed is whether all interested parties/family members agree that the appointment of a guardian is necessary, including the person alleged to be incapacitated. For example, a family member of the alleged incapacitated person may object to the appointment of a guardian and, if the court is convinced that there is not a lack of decision-making capability, or there are less restrictive alternatives, then the court may not appoint a guardian.
Guardian proceedings also typically require that someone be appointed by the court to either represent the person alleged to be incapacitated, or at least be the “eyes and ears” of the court and render a report to the court with an opinion as to whether the appointment of a guardian is necessary. These measures provide a layer of protection for the person alleged to be incapacitated.
Some guardian proceedings may be contested by family members or others who do not agree with a proposed course of action. For example, imagine the following scenario: A mother of three children lives alone in an apartment that has become overrun by debris, and filled with so much clutter and garbage that one cannot walk safely through the apartment. The refrigerator is empty and Mom is malnourished. The daughter, who is her healthcare agent, seeks placement of Mom in a facility so that she can receive the care she needs on a daily basis. Her two sons disagree, and are co-agents under a power of attorney. Although the daughter wishes for Mom to be placed in a facility, she has no means to pay for that care. The two sons determine that Mom can remain at home, and are reluctant to spend down her assets, which they view as their inheritance. In this case, the daughter can seek the appointment of a guardian to obtain court approval for the placement into a facility, a termination of authority under the power of attorney, and gain control over the mother’s finances. However, it is unlikely the daughter will be able to do all of this without a fight with her two brothers, who will argue that Mom can remain safely at home.
Many of the issues pertaining to guardianship can be avoided with properly drafted and comprehensive, advance directives, such as durable power of attorney, healthcare proxy/surrogate and a living will. However, with the proliferation of access to those documents on the Internet, they may fail to address important issues. Alternatively, an attorney whose primary area of practice is real estate, or bankruptcy, or another area not related to elder law may have prepared the documents without sufficient provisions, thus still requiring a court to become involved in the a guardian proceeding.
As a financial advisor, you may find yourself caught in a web of thorny issues raised by a client with diminishing capacity and family members fighting over who controls the finances of your client. What if one of the children calls you and says that your client is no longer able to make decisions, and they are taking over the client’s affairs?
You recognize that the power of attorney appoints this child as agent for your client, but you have many questions:
- Should you follow the instructions of this agent? How will you know if your client agrees? Should you contact your client? What if you suspect your client is confused and this matter is too complex for her to provide any meaningful input?
- What should you do if the agent under the power of attorney gives you instructions, and then you receive a call from your client’s daughter, who is only healthcare proxy, and she states that it would not be in her mother’s best interest to follow the instructions provided by the son/agent? Or that she spoke to your client, and her mother agrees with her and not her son/agent?
- Whom do you call if you are concerned that the advance directives that are already in place are not working as intended? Or to find out if you or someone else, who is concerned about the welfare of your client, is in a position to bring a guardian proceeding to resolve these issues?
Those are some of the questions you may need answered. You must be prepared with a strategy for dealing with these issues as they arise. Often a team consisting of the financial advisor, a geriatric care manager, and an elder law attorney can assist you in handling many of the issues discussed above.
Learn more about what you should be doing when a potential guardian proceeding scenario arises and receive free information here https://the-collaborative.com/aging-program
Read more articles by Howard S. Krooks
