August 6th, 2014 by Marilyn J. Schmidt, Esq.
When Estate Planning isn’t enough.
Okay. You and your spouse have done all the things advised by your lawyer: you have wills, health care proxies and durable power of attorney instruments. So there should be no problem handling your affairs should either of you become sick or incapacitated. Right? Well, not necessarily. Let me illustrate potential problems, and solutions, from some of our firm’s recent cases.
Empowering a health care proxy.
Mr. A is out jogging and gets hit by a car. He suffers a traumatic brain injury, symptoms of which include him flailing out at his care providers and refusing most offers of medical treatment. Although Mrs. A. is his designated health care proxy, she cannot consent to medical treatment and to rehabilitation services for him. This is because a health care proxy is only good for “voluntary” treatment!
Mr. A.’s situation can be remedied by a court order that affirms the health care proxy. In essence, the court rules that when he was competent to manage his own affairs, Mr. A. executed a valid health care proxy; that this proxy has never been revoked; and that Mr. A. is now unable to manage his affairs due to his traumatic brain injury. The resulting order empowers his proxy, Mrs. A., to consent to medical treatment on his behalf, even if he is saying “no.”
Providing safety and care through guardianship.
Mrs. B. has become been diagnosed with Alzheimer’s. Her family is worried that she is not getting adequate nutrition; that she may be dangerously mixing up her medications; and that she has a tendency to wander and get lost. No one wants to see her removed from her home and “placed” in a nursing home; they just want to be able to bring services, such as visiting nurses and personal care attendants, into her home to provide necessary supervision and assistance. She, however, does not see any problems and resists her family’s offers. Even a health care proxy can’t solve this problem because it’s not about consenting to medical treatment.
Mrs. B’s safety can be assured in the comfort of her own home if her loved ones file for guardianship. Before granting guardianship, the court requires clinical documentation that Mrs. B. has a clinical condition that undermines her ability to meet her own basic needs. The court would also have to find that the proposed guardian is suitable for the job; so where the proposed guardian is the person designated in Mrs. B’s health care proxy document or her durable power of attorney instrument, he would likely be appointed. The guardian would be required to submit to the court a plan of action, and annual reports on how Mrs. B. is doing.
Protecting financial security.
Mrs. C. and her late husband were very good savers. But as this widow has become increasingly lonely and, unfortunately, demented, she has been “befriended” by a neighbor. Family members have become suspicious of the neighbor’s intentions, because she is frequently seen taking Mrs. C. to the bank to make large cash withdrawals. Mrs. C. has no memory of these withdrawals or what the money was spent on, so the family suspects that the neighbor has been accepting “gifts.” Most recently, and most troubling, the “friend” has taken Mrs. C. to a new attorney to do some new estate planning. Her son happened to see some unsigned, draft documents from an attorney laying on the dining room table and naming the neighbor as Mrs. C’s new attorney-in-fact and her new heir. When he tried to discuss this with his mother, Mrs. C became confused and said that she had no memory of seeing an attorney and no intention of changing her estate planning documents.
Mrs. C’s financial security can be achieved, and her financial planning can be preserved, by the appointment of a conservator. As with guardianship, the court will require clinical documentation of Mrs. C’s condition and resulting incapacity. The Court would appoint a suitable person as the conservator to manage her affairs for her. If she named the son, originally, as her attorney-in-fact, then he would likely be appointed as conservator. He could then close the existing banking and investment accounts, and open new ones in his name “as conservator for” Mrs. C. Before granting him authority over Mrs. C’s money, the court would likely require a bond with sureties in an amount equal to the amount of the non-real-estate. This is most often an insurance policy with an annual charge. The conservator would be required to submit a conservatorship plan and an inventory of the assets and debts of the estate. He would also be required to submit annual accounts for the financial transactions that he conducts on behalf of Mrs. C.
Seek assistance with legal experience.
With all of these court proceedings, the costs and the legal fees should be borne by the estate of the elder, not by the well-intended family member or friend who seeks the court’s assistance. The assistance of an attorney is imperative, because the court process is always complex and the cases are sometimes contested. In fact, in each of the examples I described, time is of the essence in securing quick relief from the court. Therefore, it is best to find an attorney who specializes in these kinds of matters and who can get in front of a judge quickly.