While in a coma, Harvey lost his civil rights
and all control
over his own money, due to a court-ordered conservatorship. A durable
power of attorney could have prevented this nightmare situation.
On a beautiful June day in
2009, Harvey was riding his motorcycle up the Pacific Coast Highway
(PCH) in Malibu as he had many times before. He enjoyed the scenery and
the feel of the open road. However, he has almost zero memory of this
particular day.
As he neared the Malibu
Pier, a woman driving a sedan ahead of him suddenly made an illegal
U-turn — turning directly into his motorcycle. Thankfully, he was wearing a helmet that surely saved his life. The highway was shut down and Harvey was airlifted to UCLA hospital where he spent the next two months in a coma.
Harvey had suffered a severe
traumatic brain injury (TBI) along with many physical injuries, and he
would spend the next six months in hospitals. From UCLA he was
transferred to Kindred Hospital in Culver City, and then to the
Bakersfield Centre for Neuro Skills residential program.
It was in those
first few weeks while Harvey was in a coma that his independence and
civil rights would be terminated through a court-appointed
conservatorship.
Harvey and his wife Sheila
had been married for 16 years and had a six-year-old daughter. Having
been born into privilege, Harvey had considerable wealth that he had not
co-mingled with his wife’s accounts. Additionally, Harvey and Sheila had never prepared a will, power of attorney, or health care directive. Harvey felt that he was a healthy 40-year-old, and he would handle those legal things when he was older.
Sheila and their daughter
were living in their family home, where she was responsible for a hefty
mortgage, even though she had limited access to Harvey’s money. She
hired an attorney and applied for conservatorship of Harvey and his
assets. The case was heard by Judge Reva Goetz — who has handled such
famous conservatorship cases as Britney Spears and Mickey Rooney.
Sheila was denied
conservatorship over Harvey because they had recently separated and were
living under different roofs. Even though she immediately rushed to his
side in the hospital and resumed her role as his wife, the court decided that they couldn’t be certain whether or not Harvey would want Sheila to have continued access to his money.
Eventually Harvey’s father
and his attorney were awarded co-conservatorship and were able to pay
general bills such as real estate and income taxes, utilities,
groceries, etc. Harvey would eventually be awarded a monthly “allowance”
to spend on whatever he wanted, making him feel like he was being treated like a child.
Once you’ve been put into a conservatorship, you can’t
hire an attorney, so one is appointed for you by the court. This
attorney is called a Probate Volunteer Panel (PVP) attorney. Harvey’s
PVP attorney bragged at an initial meeting with Harvey and the family
that she enjoyed causing friction between husbands and wives. She felt
it was her duty to decide what was best for her client (Harvey) no
matter what he or his family members might say to the contrary.
Harvey had a hearing every
six months or so to monitor how things were going. He was supposed to be
advised by his PVP attorney, however, she kept falsely telling the
court that Harvey wanted a continuance of the conservatorship. Harvey
wanted his wife Sheila to be conservator, but the PVP attorney would
not allow it, and argued for the continued humiliation of the
court-monitored allowance.
At the hearings, the lawyers
— which by this point consisted of an attorney for his wife, an
attorney for his father, Harvey’s PVP attorney, and eventually a
court-appointed attorney for his minor child (known as “guardian ad
litem”) — and judge would talk about him as if he were a child (because
basically without any of his rights, he sort of was) and they would
never refer to him by name — only as the “conservatoree.” Harvey said it was very dehumanizing to be treated this way.
As Harvey began getting
better and better, it was becoming obvious that the conservatorship had
to come to an end, but doing so was harder done than said. He had to
have a “capacity declaration” performed by a physician. The problem is
that when a large amount of money is at stake, doctors are reluctant to
say yes, because if they said yes and he lost it all the next day, the
doctor’s decision would be questioned.
Eventually Judge Goetz gave
him the name of a specific doctor that she trusted. Harvey would endure
two days of rigorous testing, and in January 2011, the doctor eventually
wrote a declaration that Harvey was responsible enough to control his
own life. In March of 2011 the judge terminated the conservatorship and Harvey was once again granted all of his civil rights. After
the hearing was over, the court reporter approached Harvey and told him
she had sat in on thousands of cases like his, and his was only the
third one she had ever seen terminated — it is that rare to have a conservatorship overturned.
However, his nightmare did not end there.
The court-appointed PVP
attorney was supposed to charge at a reduced rate; however, she
solicited the judge to bill at her full rate, and was granted
permission. This frustrated Harvey, as he felt the lawyer really never had his best interests in mind.
Harvey had to file for separate counsel to fight the fee petition,
which added two more attorneys’ fees. In addition to his PVP attorney’s
fees, he also received a bill from his father’s attorney, the attorney
who was acting as co-conservator, the guardian ad litem for his
daughter, as well as his wife’s attorney — despite the fact that she had
dropped her petition to be named conservator 18 months prior. Harvey
had to pay legal fees, bonding fees, and mandatory accounting fees.
In total, this cost him just over $1 million dollars
— all because Harvey did not know he should have a durable power of
attorney for health care and financial matters — which created a
situation where others took advantage of his health crisis.
Right after the
conservatorship was lifted, Harvey told Sheila he wanted to go to Vegas
and gamble…”because it was his money, damnit!” She looked at him and
said, “NOT WITHOUT A WILL FIRST!” So in April 2011, Harvey wrote a
holographic (handwritten) will in
his own handwriting on a piece of paper that said, “Everything goes to
my wife.” Shortly afterwards, he hired a law firm to implement all of
their trusts, wills, power of attorney, etc.
Harvey wants
everyone to understand the importance of having a durable power of
attorney drawn up NOW, no matter your age or health because you never
know when life takes a drastic turn like Harvey’s did. This
durable power of attorney is a simple form you file with your attorney
for a few hundred dollars, and it directs who is responsible for you and
your estate should you become incapacitated. Had he had one, it would
have saved him the humiliation of losing his civil rights, as well as
causing his loved ones time and grief — and of course — $1 million in
attorney and other fees.
Full Article & Source:
A Struggle Back to “Financial Independence” After a Brain Injury
