Thursday, July 6, 2017

Guardianship: A Cautionary Tale

by Attorney Brin Moore

I just closed out a spreadsheet, and (phew) everything balanced. I’m pleased with this result, but I have a lump in my throat. This spreadsheet always leaves me feeling a little sad. It’s an annual accounting for a court-appointed guardian and conservator of an incapacitated adult. Once a year, I work with my client (the guardian) to update this spreadsheet detailing how he has used funds to care for a “protected person.” This framework is in place to protect adults who have lost the capacity to make legal decisions for themselves and to hold accountable the person appointed to help them manage daily life.

The sad part? This guardian is a husband, and the protected person is his beloved wife of 30+ years. And although they’re only in their early 60s, the wife suffers from early onset dementia. But wait, if it’s a married couple, why would a husband need to be his wife’s legal “guardian”? Can’t spouses just take care of things for each other? Sadly, not always. In this case, the wife’s dementia symptoms began when she was quite young, and her condition declined rapidly. The husband was able to manage everything for a while, but eventually, it became necessary to transfer some assets that the wife owned in her own personal name. Since she could no longer understand or sign legal documents herself, she needed someone with legal authority to act on her behalf.  That’s when I helped the husband file paperwork to become his wife’s guardian and conservator. We had to file a petition, get doctor’s reports, notify family members, prepare an inventory of all of the wife’s assets, and meet with a court-appointed visitor to assess the wife’s condition. Finally, we attended a hearing at which the judge officially appointed the husband as guardian for his wife. Now, every year the husband has to report to the court how he is managing his wife’s health and assets on her behalf.

What is especially sad about this story is that this whole procedure could have been avoided. You’ve probably heard of a Power of Attorney (or POA). Using a POA, one person can appoint another as her legal “agent” to make decisions on her behalf. By appointing an agent under a POA while you still have capacity to do so, you preempt the need to go through a court-appointed guardianship. If you someday lose legal capacity to make your own decisions, your agent is ready and able to start making decisions for you.

If you don’t have a POA, you should talk with an attorney about appointing someone you trust to help you make financial or medical decisions when you are no longer able to make those decisions for yourself. Put these tools to use and enjoy the peace of mind that comes with having a well-advised plan.

Brin Moore practices in Bergen & Parkinson’s estate planning group. She can be reached at 207-985-7000 or