Recently, the HBO show Last Week Tonight with John Oliver ran a segment about the dangers of guardianships. The show has prompted many people to ask if guardianships are actually as dangerous as portrayed and what they can do to protect themselves. The truth is, guardianships are probably more dangerous than the examples given, but, as the show humorously points out, proper planning can provide some protection.
Guardianships (or conservatorships in Michigan) give a third party decision making control over an individual who is determined by a court to be incapable of making decisions for themselves. While generally, the process is used to the benefit of seniors and those with disabilities, and protections exist to prevent the exploitation seen on Last Week Tonight, the sad truth is that many courts are underfunded and understaffed and cannot follow through on the monitoring required by the law. Many of the harms seen in the piece could have been uncovered much quicker by two simple safeguards. In the establishment of a guardianship, courts may, but are not required to, appoint an independent investigator (referred to as a guardian ad litem) to visit the person over whom a guardianship is sought and report to the court whether a guardianship is necessary. This step can prevent an unnecessary guardianship from being created in the first place. Once a guardianship or conservatorship is in place, regular accounting must be filed with the court, showing how the ward’s finances are being managed. Unfortunately, these are rarely reviewed in depth and, in Indiana, are only required every two years, by which time substantial financial damage can occur.
How can you protect yourself from a guardianship? Having properly drafted powers of attorney and health care decision making documents in place can provide the tools that individuals you trust can use to make decisions for you if you cannot. In the event a guardianship is necessary in spite of these documents, your plan can nominate a person of your choosing to be named as your guardian. The key to avoiding a guardianship is making sure that your family knows who is named in these documents, where the documents are, and how to use them. If your documents are drafted by an attorney, you have the additional protection of legal counsel advising your chosen decision makers and helping them navigate the process of acting on your behalf. Even if someone initiates a guardianship action, notice requirements mean that, if you have shared your plan, one of the individuals receiving notice will know that you have documents in place and can file with the court to have those documents followed.
In short, yes, the dangers of guardianship are very real. But, having the right team empowered to act on your behalf, backed up by knowledgeable legal representation, can protect you from being one of the victims.
Call us at 574.232.3538 to schedule an appointment to find out what your best options are for keeping control of the future you envision for yourself and loved ones.
Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation.