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Law Offices of Ronald W. Rutz
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January 11, 2003: Court-Administered Guardian/Conservatorship

Q: I heard you speak about the morass of a court-administered guardianship/conservatorship and wish that you would share your observation with the readers of Senior Voice.

A: I have written at least in part about this topic before, but this is such an important subject, that it cannot hurt to repeat it in another column.

It might be prudent to do some defensive planning in order to have something in place in case someone is needed to step forward and help.

A durable power of attorney can be signed so an agent (someone you pick) has the power to act on your behalf. Without such a document, a court established guardianship/conservatorship would be the alternative. Yes, a Power of Attorney can be abused but getting pulled into Court can be worse.

Even though the law has been changed to make a court-appointed guardianship/conservatorship the "last resort," in many jurisdictions the cards still seem to be stacked against the individual who finds himself or herself caught up in the process.

If alcohol, dementia, Alzheimer's, or other physical or psychological problems are involved or, even worse, if the person involved does not actively resist, then if a proceeding is started, it is just a matter of time before the Court takes over. Court-appointed visitors, medical evaluators, and even most probate judges appear not to apply the spirit or intent of the new law. The feeling seems to be to protect the person from himself or herself.

Once in the system, an individual loses control over his or her life, even if it is deemed that on paper a "limited guardianship/conservatorship" was established. The court-appointed fiduciary could direct where the protected person lives, who is allowed to visit, medical decisions, and of course, control over assets and income. Depending on the judge, abuses involving the fiduciary position may be tolerated even when the protected person objects.

Even if the fiduciary does not take a fee, the cost of the proceedings can be an eye-opener, including expenditures for things like bonds, accounting, and asset management costs. And once started, it is extremely difficult to end, although I have been involved in one successful termination. But in that situation, everyone agreed that the person no longer needed protection. However, I got the feeling that the judge could have just as easily gone the other way and continued the protected estate.

Thus, based upon my experience in several different jurisdictions, it seems to me to be in the best interest of the person and the family to use an alternative process to the Court, if at all possible, even if a family member has been appointed as the fiduciary.

The use of a Durable Power of Attorney as previously mentioned should be considered. Yes, complete control over the fiduciary by the principal (the affected party) may be impossible. But maintaining possession of the signed power of attorney and only letting the designated agent have possession of it if and when something needs to be done, are usually adequate precautionary measures.

If an agent refuses to give back the power, it can be revoked, even if it means going to Court to do so. It is much easier to get an injunction against your agent as opposed to trying to stop the guardianship/conservatorship proceedings once they have started.

The existence of a Durable Power of Attorney could also be significant to the probate judge, negating the need for a guardianship/conservatorship since you have already taken care of the problem yourself. So, confer with the family or trusted friends and decide if the Durable Power of Appointment should be pursued and be mindful of the judicial quicksand waiting if the guardianship/conservatorship process is begun.

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