“A ruthless determination to take elders from their homes and make them conform to a one-size-fits-all process by which their belongings can be sold, and their family and friends shut out — until eventually they are locked away in institutions to decline and die.” That is how a truly excellent multi-part series published by the Sarasota Herald-Tribune described Florida’s guardianship system. Unfortunately, Florida is not unique: from HBO’s John Oliver to The New York Times, the problems in guardianship systems across the country have been getting some much needed exposure lately.
Posted on November 19, 2018
In theory, the idea of guardianship is a benign one: a person who can no longer adequately manage their affairs (called a ward) is appointed a guardian, a person who is legally bound to act in the ward’s best interest. But the chasm between theory and practice can be alarming. And many people don’t recognize the gravity of the situation until they, or a loved one, have been drawn into an often bewildering, Kafkaesque bureaucracy. Thankfully, guardianship can be largely avoided by planning ahead.
Problems With Guardianship
A ward and their family can face a multitude of problems during guardianship, but some of the primary ones include:
Loss of Civil Rights
For wards, guardianship can mean a complete loss of freedom and autonomy. Not only does a ward lose control over key decisions, like how to handle their assets or where to live, they are also stripped of basic civil liberties such as the right to vote or get married.
Exploitation Of The Ward
Given the power dynamics of the guardian-ward relationship, and a general lack of oversight, unscrupulous guardians can easily exploit a ward. While this can include financial misdealing and fraud, a common theme involves a guardian limiting the visitation rights of family and friends, isolating a ward from the people who could potentially intervene on their behalf.
The Problem With For-Profit Guardians
In many cases, a court will appoint a professional, for-profit guardian to oversee a ward’s affairs. This person is a stranger, someone the ward and their family don’t know and have never asked for assistance. The guardian is then handed virtually unlimited control over every aspect of a ward’s life: their assets, where they live, and who they are allowed to see. And they charge handsomely for even the most routine tasks, such as coordinating a doctor’s appointment, opening mail, or paying a bill.
In fairness, the majority of professional guardians take their work very seriously and sincerely do their best to act in a ward’s best interest. These guardians, however, often handle dozens of clients, limiting their ability to completely understand and appreciate what is truly in a ward’s best interest.
No Way Out
Being drawn into the guardianship system is, in many ways, shockingly easy. All it takes is a single phone call or letter and a court will begin reviewing your situation. And once the wheels are in motion, it can be extremely difficult and expensive to extricate a ward from guardianship.
Planning To Avoid Guardianship
Much of what estate planning attorneys do revolves around helping clients make arrangements to avoid the state systems designed to handle individuals who lack a comprehensive estate plan. Guardianship is no exception. To avoid guardianship proceedings, everyone should have at least two things in place: a Durable Power of Attorney (POA) and a Living Will.
Durable Power of Attorney
A POA is a legal instrument that allows its creator to choose someone to manage their affairs (an agent) in the event they are unable to do so. POAs come in two forms: durable and non-durable. For guardianship planning, it’s critical that your POA be durable, meaning your agent is still empowered to act on your behalf even if you are physically or mentally unable to do so. While you can choose which aspects of your affairs your agent will oversee, to cover all of the potential rights and responsibilities required to avoid guardianship, it’s best to consult with an experienced estate planning lawyer before finalizing your durable POA.
A living will, or advanced healthcare directive, is a document that spells out your wishes regarding medical care, including selecting someone who will make decisions on your behalf if you are incapacitated. Typically, a standard living will addresses end-of-life situations, such as DNR instructions (Do Not Resuscitate) and the removal of life-preserving medical treatment. That said, you are not limited to these scenarios; in fact, a living will is an opportunity for you to lay out your wishes regarding a range of medical situations. The more thorough your living will is, the more likely your choices will be respected and the less likely a guardianship court will need to get involved.
If the prospect of having a court-appointed guardianship thrust upon you or a loved one is unsettling, just remember that it can be avoided if you plan adequately in advance. To ensure you’ve taken the right steps to protect yourself from the guardianship system, we would urge you to get in touch with a trusted estate planning attorney today.