You Lose Control of Everything Because You Didn’t Plan. Guardianships. Court Takes Away Your Control of Your Life. Estate Planning Mistake Number 9
April 26, 2016
You don’t remember where you put your keys. You go upstairs and don’t remember why you are there when you get there. You went to the grocery store to buy what you need for your favorite chicken soup and forgot to buy the chicken.
They say as we get older, our short term memory fades. We have all experienced this with parents and older friends. You may be able to physically take care of yourself, but your mind is gradually slipping away.
I asked George (age 94) how he was doing. He said: “I’m losing my mind”. He had Alzheimer’s and he felt it taking over.
Your government has a solution for this. The government decides to take over your life, all your decisions, your health care, your property and appoints a stranger to make all of the decisions you used to make. That is, if you have enough money to pay the fees of their favorites.
Ester owns a nice colonial townhome in the historic section of the City. Her house is immaculate and is filled with family mementos and tastefully decorated with colonial furniture. She is a bible reader at Mass at the local church only two blocks away. A key fact is that her net worth, including her house, is about $1.5 million.
She has no children and her husband is deceased. Her husband had a son and daughter who live in the metro area, but they rarely check in on Ester. Ester doesn’t trust them. She has a hair dresser Amar that she trusts.
Ester’s memory is fading and she starts to fall for schemes that prey on the elderly. Amar looks in on her daily and protects her against these schemes.
Her estate planning documents put Thornton Gary in charge of her in the event that she becomes disabled. Thornton has retired from practicing law and moved away to the country 100 miles away. Thornton was a good friend of her deceased husband. He may see Ester at most once a year and hates the drive in and out of town.
Thornton decides that Ester needs to be declared incompetent and moved to a nursing home. Then, Thornton could easily manage Ester’s affairs for $15,000 to $20,000 a year at a distance, with all of the messy stuff being taken care of by someone else. A nosy neighbor sees Amar go into Ester’s house and calls the City’s elderly protection unit. Thornton tells the City that Ester needs the protection of a guardianship and a nursing home.
Ester is adamantly opposed to going to a nursing home. With proper supervised elder care, Ester could safely stay in her comfortable home.
Eric Allen is an attorney on retainer by the City’s elder protection unit. Eric files a petition to have a guardianship imposed on Ester. After all, the City knows better than Ester how to runs Ester’s life. The petition in big bold letters states: YOU WILL NO LONGER HAVE THE RIGHT TO INVEST YOUR FUNDS, DECIDE WHERE YOU LIVE OR MAKE YOUR OWN HEALTH CARE DECISIONS and many legalize sentences that- bottom line-say the City will take over Ester’s life. Eric is part of the in crowd in the business of guardianships in the City and has the implicit trust of the judges. The court appoints James Michael as the attorney to represent Ester; James happens to be the law school buddy of Eric.
The City has one of its employees interview Ester; the employee dutifully files a report that Ester is incompetent and can no longer manage her affairs. Ester’s attorney James does not hire a more qualified licensed expert to challenge this finding.Eric and James appear before the Court. Ester is not there-the City says she is incompetent to handle her affairs-even before the Court made such a decision. In a collegial manner, Eric and James agree that Ester is incompetent and needs to have a guardian appointed to run her life. And who will the guardian be? The children of her husband? Her best friend at the church who heads up the Catholic Daughters Society? Amar, the hairdresser? No, none of these. The Court appoints the person who represents the City-Eric.
At one moment in the case, Eric is her worse enemy and then at the next moment he is in charge of her life. Eric is her “fiduciary.”
As a fiduciary, Eric will be required to file detailed accounts with the Court auditor as to how Eric spend Ester’s money. It is common in these cases for the court to approve legal fees in excess of $40,000 or much more a year. Eric brings in expensive home care and decides for the time being that Eric will allow Ester to live in her home. Ester was a target for lots of guardianship expenses because she had the money to afford it.
None of Ester’s friends, her husband’s children or Amar have any input into this whole process.
Such a nightmare guardianship can happen to any of us. We think of estate planning as how to take of our heirs. Instead, the biggest benefit of estate planning is how you will be treated as you age.
The key is making sure that you have given the legal power to take care of you as you age to friends and family that you trust. You need to have backups for trusted friends who are also getting older. Ester signed her documents when her husband was alive and she went along with naming Thornton as her back up when Thornton was not really on Ester’s side.
If Ester had named the right people-such as her church lady friend-to take care of her, then no guardianship would have been necessary even when Ester lost all of her short term memory.
George lost his mind, but he spend his final years in his home of 40 years. He liked to sit at his dining room table and look out the picture window to the tree he had planted in the yard 35 years old. George had the right people and documents in place. You need to follow George and not Ester.
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