Guardianships are drastic and very invasive. They strip individuals of their legal autonomy and establish the guardian as the sole decision maker. Plus, if there are problems in the case or it is unclear to the court whether guardianship should be established, the court proceeding can badly damage family relationships.
A Guardianship Case that Destroyed a Family
NextAvenue’s article, One Family’s Journey Through Guardianship Hell, outlines the case of mother, Ada and her adult daughter, Patricia whose guardianship case ended badly. Patricia petitioned to become Ada’s guardian, believing her mother was incapable of managing her affairs after seeing worrying signs of dementia and paranoia. Ada was threatening to hurt herself and others, and Patricia even found items like a rope and ice pick in Ada’s room.
Even though Patricia felt like filing for guardianship of her mother was the only option to ensure that her mother was safe, Ada felt threatened and hired her own attorneys to represent her in court. Ada’s legal team found financial issues between the mother and daughter such as a jointly owned real estate and commingled assets that make it appear like Patricia was trying to take advantage of her mother.
When the judge reviewed the case, he denied Patricia’s guardianship petition and set a $675,000 judgment payable to Ada for the many years of their commingled finances. Sadly, Patricia not only lost the guardianship case, she also lost her mother Ada who never spoke to her again.
Use Advance Planning as an Alternative to Guardianship
Instead of filing for guardianship of senior family members who have questionable judgement or mental faculties, families should consider alternatives to guardianship.
Advance planning through legal documents that can be openly discussed before any health issues arise or the aging loved one’s unstable mental or emotional state becomes too progressed is better for everyone involved. An experienced Las Cruces elder law attorney will help the family to clearly communicate about what is involved and how individuals can be appointed to specific roles of the senior’s choosing.
Powers of attorney can be established for medical or financial decisions. This is far less burdensome to achieve and equally less restrictive. A Healthcare Power of Attorney will allow a family member to be involved with medical care, while the Durable General Power of Attorney is used to manage a person’s personal financial affairs.
Some families take the step of making a family member a joint owner on a bank, home, or an investment account like in the case of Ada and Patricia who were joint owners of their home. This sounds like a neat and simple solution, but assets are vulnerable if the co-owner has any creditor issues or risk exposure. A joint owner also doesn’t have the same fiduciary responsibility as a POA.
An assisted decision-making agreement creates a surrogate decision-maker who can see the incapacitated person’s financial transactions. The bank is notified of the arrangement and alerts the surrogate when it sees a potentially suspicious or unusual transaction. This doesn’t completely replace the primary account holder’s authority. However, it does create a limited means of preventing exploitation or fraud. The bank is put on notice and required to alert a second person before completing potentially fraudulent transactions.
Trusts can also be used to protect an incapacitated person. They can be used to manage assets, with a contingent trustee. For an elderly person, a co-trustee can step in if the grantor loses the capacity to make good decisions.
Planning in advance is the best solution for incapacity of a senior or disabled loved one. Request a consultation with experienced Elder Law Attorney Michele Ungvarsky to protect loved ones from having to take draconian actions to protect your best interests by using alternatives to guardianship and ensure that family relationships are preserved for a lifetime.
