Still, Teaster tried
to take his mother's wishes into account until she passed away in 2017
at the age of 87. As guardian, "you may have the power to do it
legally," Teaster, 65, of Blacksburg, Va., says, "but how do you force
your mother to leave the house she has lived in for 50 years?"
When
someone is legally deemed incapable of managing their own affairs and
hasn't named a financial power of attorney to do it for them, a guardian
or conservator may be needed, and a family member, like Teaster, may be
appointed to the job. Guardians are usually responsible for personal affairs whereas a conservator is generally limited to financial matters.
The terms, which can vary by state, are often used interchangeably
because in many jurisdictions the same person fills both roles.
This
control over another person's life and money has been in the news
lately and not in a good way. Conservatorships gained notoriety recently
when singer Britney Spears
contested her father's 13-year control of her finances. The
conservatorship finally ended in November. "If a court falls down on the
job in such a highprofile case, just imagine the level of monitoring in
ordinary cases," says Nina Kohn, a professor specializing in elder law
at the Syracuse University College of Law in New York.
Even
Netflix portrays these legal arrangements as little more than an
invitation for fraud in "I Care a Lot," a 2021 movie featuring Rosamund
Pike as a professional guardian who bilks her clients out of their life
savings.
But there's a lot more to guardianships, than pop culture suggests, though they are a reminder of why estate planning
and advance directives, like a power of attorney, are so important.
"Every adult is assumed to be mentally capable of making their own
personal and financial decisions," says Naomi Cahn, co-director of the University of Virginia Law School's Family Law Center
in Charlottesville. "It's only when someone becomes unable to make
those decisions and has not made any alternative plans that we start
thinking about a conservatorship or a guardianship."
When to Seek a Guardianship
Although
the rules vary by state, generally when someone -- a petitioner --
files a petition with a local court to seek guardianship of an adult, a
judge holds a hearing to determine whether that person -- the respondent
-- meets the state's standard for needing a guardian. The respondent
has a right to legal representation and can contest the petition.
Someone
requiring guardianship can lose important rights, including the ability
to marry, travel, make certain medical decisions, possess firearms or
even vote. Courts may be understandably reluctant to allow such
an all-encompassing loss of rights. In fact, most states permit courts
to limit a guardian's authority so that it only addresses a specific
area the respondent needs help with, such as managing bills and
maintaining a home. The least intrusive option is generally preferable.
"It doesn't need to be an all or nothing situation," says Larisa
Gilbert, an elder law attorney at Duncan Galloway Greenwald in Louisville, Ky.
An
exam is usually required to determine if the respondent suffers from a
medical condition that impairs judgment, says Dr. Gary Oberlender,
president of Senior Evaluations, a company in Charlotte, N.C., specializing in geriatric medicine and competency assessments. The courts won't intervene if a person is physically disabled but mentally sharp.
Making bad financial decisions also isn't grounds to be placed under a
guardian's care. "The law can't protect you if you want to be a fool,"
Oberlender says.
Sometimes,
though, the need for a guardian is clear -- for instance, a person who
has suffered a stroke and is in a coma. Dementia is the most common
reason why an adult might be declared incapacitated, says Oberlender,
who finds that 85% of the respondents he assesses lack the ability to
make essential decisions.
Depression,
which can be mistaken for dementia, and delirium, which can cause a
person to be confused and unaware of their environment, are other common
causes. Oberlender once testified in a case that named a son the
conservator for his father after the father gave away more than $1
million to cybercriminals. Just because someone is the victim of a
financial crime doesn't mean that person needs a guardian, but in this
case, the father adamantly believed that he hadn't been swindled,
despite considerable evidence to the contrary and police involvement. As
a result, he met the diagnostic criteria for delusional disorder and
was deemed incapable of making his own financial decisions, Oberlender
says.
Guardrails for a Guardianship
When
the state's standard is met and a guardian is needed, courts typically
prefer to appoint a family member, but sometimes there's no one
appropriate, Gilbert says. In that case, the court may appoint a public
guardian paid by the state or occasionally a professional guardian paid
with private funds.
A
guardianship petition can cost hundreds and even thousands of dollars,
depending on the jurisdiction, court filing fees, attorney fees, the
cost of a competency exam and whether the petition is contested.
If a professional guardian is appointed, the charges can run upwards of
$250 an hour. The court process can also be emotionally wrenching. "By
design, it's an adversarial proceeding, and though it's not the
intention to strip someone of their feelings of dignity, choice and
control, that can be a byproduct of the process," Gilbert says.
When
a professional guardian is needed, sometimes courts give family members
a say in the selection. Whether you're required to choose a
professional or just prefer one, look for an experienced candidate. The Center for Guardianship Certification
has national educational standards and examinations that guardians must
pass for two levels of certification: guardian and master guardian. Ask
the candidate about their caseload, how frequently they visit clients
and how they communicate with family members.
Bear in mind that the guardian's job is to protect your loved one, not serve your interests.
The family dynamics can be stressful because the relatives think I'm
spending their inheritance, says Shannon Butler, a certified national
master guardian and founder of Ethical Solutions,
which provides professional guardianship and conservatorship services.
"I'm not here to preserve your inheritance," she says. "I'm here to take
care of your mom."
Most
guardians are well meaning and do their best under difficult
circumstances. "You have to manage their bills, their mortgage, the
upkeep of their home," says Deirdre Lok, assistant director and general
counsel for the Weinberg Center for Elder Justice.
Still,
the system can be exploited. A 2010 report from the Government
Accountability Office identified hundreds of allegations of physical
abuse and financial exploitation by guardians in 45 states and
Washington, D.C., from 1990 to 2010. Courts are supposed to monitor
guardianships, but sometimes the oversight is lax. "Older adults with
cognitive decline and those with intellectual disabilities historically
have been treated as expendable," Kohn says.
There
isn't reliable data on the number of people placed under a guardian's
care, though the best estimate is around 1.3 million Americans, Kohn
says. "This lack of transparency is itself a barrier to holding courts
accountable," she adds.
There
are some safeguards, Butler says. For instance, the petition must list
all interested parties, such as the ward's spouse, children or siblings,
who are notified about the application right from the start. A
guardian must also send annual reports describing the ward's condition
and disclosing to the court and the family how funds were spent, giving
relatives a chance to raise concerns.
Those
requirements also apply to a family member who serves as guardian. The
family member should keep clear records of how any money was spent and
discuss any reimbursement for expenses, such as the time and mileage for
transporting the ward to appointments, in advance, Butler says. "It
should be seen as a professional job. Depending on the situation and how
complicated it is, it can be a lot of work."
