The Dark Side of Legal Guardianship - Part 1 | Jordan W. Jacob, Esq.

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The Dark Side of Legal Guardianship – Part 2

Written by Jordan W. Jacob, Esq.

April 27, 2021
Legal Guardianship

The Netflix movie I Care a Lot provides a dark, violent, and somewhat comedic take on the real life dangers of the legal (and sometimes corrupt) guardianship system. While the film’s twisting plot may seem far fetched, it sheds light on a tragic phenomenon—the abuse of seniors at the hands of crooked “professional” guardians.

Recap of Part 1

Last week in Part 1 of this series, I offered a brief synopsis of the movie, which revolves around Marla Grayson, a crooked professional guardian who makes her living by preying on vulnerable seniors, and we then outlined the true events that inspired the fictional account. The film’s writer and director, J. Blakeson, came up with the idea after reading news stories of a similar scam involving a corrupt professional guardianship agency in Las Vegas.

In that case, a real-life Marla Grayson, named April Parks, was sentenced to up to 40 years in prison in 2018 after being indicted on more than 200 felonies for using her professional guardianship status to swindle more than 150 seniors out of their life savings.

Problems in the Professional Guardianship Industry

While I Care a Lot is fictional, the Parks case also inspired the 2018 documentary, The Guardians, directed by award-winning filmmaker Billie Mintz. The Guardians details the terrifying true events that ravaged the Nevada guardianship industry. In a Facebook post, Mintz praises I Care a Lot as “a perfect introduction to guardianship,” but worries that because of the movie’s heavy focus on violence and Russian mobsters, “people won’t believe it’s real.” However, as Mintz points out, “I assure you that everything you see about guardianship is true.”

While the Parks case is the most famous, similar cases of senior abuse by professional guardians are on the rise across the country. A 2010 report by the Government Accountability Office found hundreds of cases where guardians were involved in the abuse, exploitation, and neglect of seniors placed under their supervision. Given the country’s exploding elderly population, and our overloaded court system, such abuse will almost certainly become more common in legal guardianship matters.

Additionally, although most of the legal guardianship cases that have made the news have involved the elderly, any adult could face court-ordered guardianship if they become incapacitated by illness or injury and haven’t put the proper legal protections in place.

Because of this all too common reality, here in Part 2, I am going to explain how you can protect yourself and your loved ones from such abuse by using proactive estate planning.

How It Happens

Should you become incapacitated without any planning in place (due to illness or injury), your family (or a friend) would have to petition the court in order to be granted legal guardianship.

In most cases, the court would appoint a family member as guardian, but this is not always the case. A professional guardian would be appointed if you have no living family members, those you do have are unwilling or unable to serve, or your family/friends are deemed unsuitable by the court.

Beyond the potential for abuse by professional guardians, if you become incapacitated and your family is forced into court seeking legal guardianship, they are likely to endure a costly, drawn out, and emotionally taxing process.

Not only can the legal fees and court costs drain your estate, but if your loved ones disagree over who is best suited to serve as your guardian, it could cause a bitter conflict that could tear your family apart and make it less likely that you get the kind of care you want.

In another scenario, should your loved ones disagree about who should be your guardian, the court could decide that naming a relative as your guardian would be too disruptive to your family dynamics. Instead, the court would appoint a professional guardian.

If you have the proper planning vehicles in place, it is highly unlikely for a guardian to be appointed against your wishes.

A Comprehensive Plan For Incapacity

Should you become incapacitated, a comprehensive incapacity plan would give the individual(s) of your choice the immediate authority to make your medical, financial, and legal decisions without the need for court intervention. Moreover, such planning allows you to provide clear guidance about your wishes, so there is no mistake about how these decisions should be made.

There are several planning vehicles that can go into a comprehensive plan for incapacity, but a Last Will and Testament is not among them.  You may not know this, but a Last Will and Testament goes into effect only upon your death.  Then, it merely governs how your assets should be divided and to whom.  In fact, a Last Will and Testament does nothing to protect you in the event of your incapacity.

When it comes to creating your incapacity plan, your best bet is to put in place a number of different planning tools rather than a single document. Therefore, your plan should include some or all of the following:

  • Durable financial power of attorney: This document grants an individual of your choice the immediate authority to make decisions related to the management of your financial and legal affairs.
  • Revocable living trust: A living trust immediately transfers control of all assets held by the trust to a person of your choice to be used for your benefit in the event of your incapacity. The trust can include legally binding instructions for how your care should be managed, and the document can even spell out specific conditions that must be met for you to be deemed incapacitated.
  • Medical power of attorney: A medical power of attorney grants an individual of your choice the immediate legal authority to make decisions about your medical treatment in the event of your incapacity.
  • Living will: A living will provides specific guidance about how your medical decisions should be made during your incapacity, particularly at the end of life.

But here is the thing about all of these documents—they are just documents and not guidance for the people you love.

If you really want to keep your family and friends out of court and out of conflict, you cannot just rely on documents to do it. Rather, these documents should be created by a lawyer who will get to know you, your wishes, and be there for you throughout the many stages of life, plus be there for your family and friends if and when you cannot be.

Communication is Key

In addition to the above planning tools, it is equally—if not more—important for your loved ones to be aware of your plan and understand their role in it. As part of our planning process, I offer my clients the opportunity to hold a family meeting with all of the individuals impacted by your plan. During this meeting, we walk them through your plan, and explain the reasoning behind your decisions and what they need to do if something happens to you.

By combining your comprehensive incapacity plan with a team of people who care for you, can watch out for you, and know exactly what to do in the event tragedy strikes, we can make it virtually impossible for you to be abused by a professional guardian.

Do Not Put It Off

Although incapacity from dementia is most common in the elderly, debilitating injury and illness can strike at any point in life. Given this, all adults 18 and older should have an incapacity plan. Furthermore, planning for incapacity must take place well before any cognitive decline appears, since you must be able to clearly express your wishes and consent for the documents to be valid.

In light of this, you should get your own planning handled first, and then discuss the need for planning with your aging parents as soon as possible. From there, schedule a no cost initial consultation with my law office to get a plan started.

If you or your senior loved ones already have an incapacity plan, I can review it to make sure it has been properly set up, maintained, and updated. Unfortunately, a plan put in place years ago is unlikely to work now. So, updating your plan is critical and should not remain overlooked.

Once you have a plan in place, make sure to regularly review and update it to keep pace with life changes, changes in your assets, or changes in your family structure. If any of the individuals you have named become unable or unwilling to serve for whatever reason, you will need to revise your plan—and I can help with that, too.

Retain Control of Your Life and Assets

To avoid the loss of autonomy, family conflict, and potential for abuse that comes with a court-ordered guardianship, I invite you to meet with me as your Personal Family Lawyer®.

While there is no way to prevent dementia and other forms of cognitive decline or an unexpected illness or injury, I can put planning tools in place to ensure that you at least have some control over how your life and assets will be managed if it ever does occur.

Contact me today to schedule your appointment!

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