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June 2, 2006: How to Protect a Person from Him- or Herself

Q: What can we do? Dad is losing his financial judgment and we all have the foreboding feeling that disaster is about to happen, assuming that the worst has not already happened.

A: If the affected parent realizes that there is a problem, then the necessary steps are easy. If however, any actions by you are viewed by the parent with suspicion and even hostility, then the task becomes almost impossible.

The most effective tool would be to have a Court establish a guardian/conservatorship. A few years ago the Courts, especially in Colorado seemed willing to set up such a structure to protect the person from himself or herself.

Today the Courts appear more reluctant to do so, the degree of intervention varying not only from state to state but here in Colorado even from county to county. The current Colorado judicial sentiment in general seems to be that the Courts should respect a personŐs right to do "his or her" own thing, since the assets belong to that person. The standard of competency seems to have a low threshold with the feeling that eccentricity is in the eyes of the beholder. A person has the right to live his or her life in his or her own way.

The Colorado judicial procedure provides that the person will have an advocate appointed for him or her and the Court will obtain an evaluation from someone appointed by the Court. At some point in the proceeding, the judge also will want to see the person alone "in chambers" so that outside influences will be minimized. Thus the Court will have several varied views to analyze the "problem."

If a person resists the Court appointing a fiduciary for him or her, it is my observation that the Court will not force court supervision. If someone does not resist, then the family faces the extra expense, annual court reporting requirements, and outside fiduciaries such as a bank calling "the shots." Even if the parent does not resist, the Court may refuse appointment if the personŐs advocate or court evaluator feels that such help is unnecessary.

In lieu of court intervention, comprehensive Durable Powers of Attorney can be used but there are disadvantages. The giver can always revoke the power and the power ends at the giverŐs death. The agent can also become liable for damages if he or she continues to use the power after it is revoked.

There are other housekeeping things that might be useful to protect a parent. Require two signatures on checks or replace checks with a debit card, keeping a small balance on hand. Block ordering access to e-bay. Have mail forwarded to another address so bills can be caught or double-checked. Put the telephone on the "no call" list and the address on the "no solicitation" list. Have a "bill paying" or a "financial" party periodically so that a parentŐs business affairs can be reviewed and bill paying can be done in a social setting. Finally, alert such places as the bank or stock brokerage office about the problem and ascertain the degree of cooperation that might be available.

Screen people who come in contact so that the care giver, the "sweet young thing" next door, or even the Social Service worker will not try to ingraciate himself or herself and exploit the relationship.

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