Guardians and Conservators (The Time May Come)

A search of my blog reveals that I have not written an article solely devoted to the subject of guardianship and conservatorship. It isn’t a sexy subject. Lawyers don’t advertise their services on billboards.

You don’t need a “Tiger” or “Bulldog”, and the lawyer’s hair does not have to be “puffy”. And you don’t need a lawyer with an oversized ego.

What you need is a lawyer with competence, compassion, a good staff, an understanding of people, and a good perspective on life.

There should soon be a wave of new petitions for guardianship and conservatorship as the children of WW II and the early “baby boomers” begin to struggle and need help in meeting their personal and financial needs.

Think of “conservatorship” as the management of the protected person’s property, her or his “estate”, and of “guardianship” as management and protection of the person.

A “medical power of attorney” is a lesser version of guardianship. It is limited to medical decisions that the protected person is no longer aware enough to make.

A “durable general power of attorney” is a written consent by a person of any age to another person authorizing them to sign their name to legally binding documents. It goes into effect immediately, but it stays in effect if the person becomes impaired. That’s why it is “durable”.

Such “attorneys in fact” have a powerful “fiduciary responsibility” to put the “principal’s” needs above their own. That is the critical component.

There is a tendency to put things off, to use joint checking accounts to manage finances, to put-off making a will, until the subject, later called “the protected person”, is no longer competent to make a will.

That “hazy stage” is when “bad actors” sometimes appear and take advantage. People at this stage of life aren’t resilient enough to say “No.” and often say “Yes.” to the last person they’ve talked to.

What amazes me is the tension among siblings. Jealousy, issues from childhood, the suspicion that one or the other has taken advantage of Mom and/or Dad. It can build into a situation where siblings never speak again.

I won’t quote fees here, but often the protected person’s estate can pay the fees. We charge a small retainer and work on an hourly rate.

Let’s just say that even a contested guardianship or conservatorship is a lot cheaper than a will contest or suit over the alleged, fraudulent conveyance of real estate. The desired resulted is to build a wall of protection around the protected person.

A little preparation, transparency, and communication can avoid a contested petition. But, at other times, WV’s criminal statute for “financial exploitation” comes into play, or a person who holds a “power of attorney” or conservatorship uses that position for self-promotion or advantage, such as deeding property to themselves or terminating a “transfer on death deed” that Mom or Dad signed and recorded before they became infirm or incompetent.

Such behavior or alleged behavior can lead to bitter and expensive litigation.

I suggest these guidelines:

1. Don’t wait until Mom or Dad, Gram or Gramps, are too frail to make their wishes known.
2. If you are the “local” person, the one who sees them every day, do not act like you have something to hide. Share the information about your folks’ finances, or difficulties.
3. Collaborate with siblings where possible.
4. Don’t be greedy; is getting a car, or a gift, or a few acres of land worth showing a lack of respect for your parents, a failure to honor their wishes, or becoming estranged from siblings so that the next generation of “cousins” have to choose sides?
5. If you are the person who has begun to fail, do not wait! Think, plan, make your wishes known in a general power of attorney, special power of attorney, medical power of attorney, living will, and last will and testament.
6. In making your last will and testament, do NOT micromanage. Don’t require your son to return and “till the soil” as a condition for getting a fair share of their inheritance. Do not try to control others from the grave!
7. When it can be justified, after your spouse, treat your heirs equally. There may be one or two more deserving, but perhaps they will understand that keeping the peace is worth something too.
8. Once you are enfeebled, fearful, anxious to please everyone, and depressed, and diminished, you may have lost the golden opportunity to manage your transition to “what’s next?”. In that case, rely on the person(s) you trust the most. And don’t think you can please everyone all the time.
9. Young or old, don’t let that happen. A visit, especially some private time, with an experienced attorney and perhaps a financial planner can save your family an immense amount of grief. We will be happy to fill that role.

This post was written by Burton Hunter