Third party guardianship for elderly
January 26, 2016 9:25 AM   Subscribe

An elderly person refused to make a will or get his affairs in order in any way (he was asked multiple times and given many opportunities). He now has dementia and can no longer make decisions. He has no spouse or children. His heirs are his nieces and nephews, who do not get along, do not trust each other, and do not agree on what is best for him. What are the pros and cons of a third-party, court-appointed guardian?

You are not my attorney, and I am retaining an attorney. The elderly person has enough assets to last him the remainder of his life, even if he lives a long time. Depending on how long he lives, there could be a significant amount of money when he dies, but I am more concerned about family heirlooms, which are not worth that much in dollars, but are worth a lot to the family. We were in discussions with our cousins, but they cut us off, hired an attorney, and are now pursuing guardianship. I want to petition the court to appoint a third party, but I want to know what I'm getting into, so any experiences would be helpful. I know there are horror stories about third-party guardians, but there are horror stories about family guardians as well.
posted by FencingGal to Law & Government (11 answers total) 1 user marked this as a favorite
This is really a question for your attorney, and only for your attorney. It's going to depend so much on the specific state and city you're in (and often even what judge is assigned to the case), as well as a number of other factors specific to your case, so I don't know that you're going to get much useful information from metafilter.
posted by decathecting at 9:55 AM on January 26, 2016 [5 favorites]

Best answer: This is a tricky area of law, and a great deal of it will come down to where you live and how the issues of guardianship and trusteeship are dealt with in your jurisdiction. IANAL, I live in Canada, but I do work in dementia care, so take this for what it is worth in terms of my understanding of some of the questions you need to work through with your attorney and family:

-has he been declared incompetent already, or is that still to be done? A diagnosis of dementia does not always mean that the person is immediately also designated as incompetent. If he hasn't been, things like a power of attorney/will can still be prepared but be very, very careful in doing so (i.e., use an estate lawyer and have some medical opinions) because at this point they could also be subject to attack both because of the diagnosis and a claim of undue influence. I'm guessing he has been declared incompetent based on your question.
-while you say this person has never made a will or gotten his affairs in order, are you sure? If there is a power of attorney document floating around out there that has never been revoked, it will complicate things.
-be clear on what you are going for - there are degrees of decision making ability when seeking this. Do you want someone to be in charge of everything - personal/health care, finances, property, or just certain aspects, such as a guardian just for property and fiduciary decisions? Decisions around certain aspects can be given to different people.
-a power of attorney or a guardianship/trusteeship decision in my jurisdiction can be made to be subject to review/reporting, to try to ensure that someone does not abuse their power. That might be an option for certain decisions.
-in my limited experience in this setting, usually a 3rd party is someone from a public office who is responsible for
these matters when no one else is available/willing. Usually, the preference is to go with a family member who is willing to take on the role. Again, this may be different for you, but my experience is that 3rd party appointments are not the preferred option.

Again, not a lawyer, and you are doing the right thing to consult with one who is going to understand these in much, much better detail than I do. Family dynamics in these situations can be very, very difficult, particularly if there were strained relations to begin with, so I also encourage you to take care of yourself and be clear about what you want, and how far you are prepared to go to get it.
posted by nubs at 11:41 AM on January 26, 2016 [1 favorite]

Best answer: Be sure that attorney is a Certified Elder Law attorney and no other type.
posted by Riverine at 12:57 PM on January 26, 2016

Best answer: Be forewarned that if you fight hard on this guardianship, considering that they are already pursuing it, that this could get extremely expensive for you. Don't go to the wall on this if you don't have a very very good reason to do so.

Other than that, do talk to an attorney to see what is feasible. If someone else is appointed guardian/conservator, find out what kind of accountability they will have and your recourse if they fail to uphold their end of the bargain. Also find out what the rules are for an estate of someone who dies without a will. Intestate succession laws can vary from state to state.
posted by azpenguin at 4:45 PM on January 26, 2016

Response by poster: Thanks everyone for answering. I'm aware that there is a lot of variation between states (which is why I'm hiring an attorney) - I was hoping for some personal thoughts and experiences, so it didn't seem inappropriate to ask MetaFilter for that. The person has been deemed incompetent, and there is definitely no power of attorney. We really tried to get him to appoint someone while he was competent, but he would not do so. Due to an estrangement in the family, the cousins were not in contact with the relative or us for thirty years, so it's very emotionally frustrating to have them come in and try to take charge now that there might be some money for them in the picture. I may ultimately decide that life is too short to put myself through a big legal battle, but it's hard to let go.
posted by FencingGal at 5:01 PM on January 26, 2016

Best answer: In my jurisdiction, the guardian has annual reporting requirements. These can frequently be a source of contests and challenges if the relatives don't get along, so if that's the case in your jurisdiction, whomever is appointed guardian needs to be prepared for a possible fight once a year for the life of the ward (or until the ward regains competence).
posted by Dr. Zira at 6:28 PM on January 26, 2016

Best answer: IAL. In my jurisdictions of practice (may or may not be where your grandpa is) the difference with a professional guardian, guardian of the estate or conservator is primarily cost. They charge by the hour for their services. If no family can handle it and grandpa needs the help then the choice has been made. A good professional will provide as good care / attentiveness as committed family. A bad one won't.

In the jurisdictions I practice in, all guardians, guardians of the estate, and conservators have the same accounting and reporting requirements whether family or professional so that wouldn't change.

If family can't do it well a professional is often a good choice.
posted by BrooksCooper at 9:39 PM on January 26, 2016

Best answer: Oh Fencing Gal if you're waffling now then I advise you to let it go. This stuff is very common, and awful, and never ends well.

My mother had a great relationship with her father until her sister reappeared after a 20-year absence and started taking care of him. He had moderate dementia. My mother ended up completely cut off from her father for his last five years of life, and cut out of his will, and after he died she sued because she wanted some heirlooms from her childhood and, honestly, to be validated.

The heirlooms were destroyed or sold by her sister immediately after their father died. The lawsuit dragged on for about four years. In the end it turned out practically all of the money had been (legally) transferred to my aunt's children while her father was still alive, and my aunt ended up claiming most of the rest as executor expenses. My mother spent about 30K on lawyers, and ended up with a roughly 30K inheritance. She and her sister don't speak, and probably never will. She feels bruised and guilty and unresolved.

So yeah. I would let this go. Some people just do this. They are more motivated than you are, so they will prevail, and it'll be painful for you.
posted by Susan PG at 1:48 AM on January 27, 2016 [1 favorite]

Response by poster: Thanks everyone for your answers. It's definitely helped me think about this some more. I expect to talk to an attorney this week. I think the main thing I have to do is not make myself crazy. Ultimately, it's out of my hands. I am really angry at my uncle for refusing to make plans, but I will have to let that go too.
posted by FencingGal at 6:43 PM on January 27, 2016 [1 favorite]

Best answer: Heirlooms seem priceless and invaluable but they're just things, too. if they were lost in a fire or fleeing or or just lost - you would manage. They are precious for the memories and relationships they represent, and in this case it seems like fighting for the heirlooms would ultimately be destructive to relationships, and it's hard to see how that's a good idea.

It's good that you're speaking with an attorney. It may be a good idea to consult more than one. IAAL IANYL TINLA.

I have been witness to someone going through a similar fight. There is no such thing as winning and there are no happy endings. Personally I can't imagine how it would be worth it unless either the quality of life of your uncle's remaining time were jeopardized or there was a sum of money at stake that would make a really significant difference in the life of someone actually in need.

I am really angry at my uncle for refusing to make plans, but I will have to let that go too.

As a lawyer who prepares (relatively basic) wills, I can't tell you how many people have approached me because they know they ought to have a will (usually there are minor children), and then never follow up, or follow up months or years later. This stuff is *hard* for many people. It sounds like parts of your family may not have the most sophisticated emotional toolboxes and it seems reasonable that your uncle was one of them. People who are not good with these things when they're healthy do not get better when they're diagnosed with something terrifying.

Yes, he should have made plans. And your cousins should be better people. And I should have had a rich relative I never met bequeathing me a fortune and malaria should be eradicated and the dishes should wash themselves (after they bake me chocolate chip cookies).

It sounds like you're doing your due diligence. I agree that it's a good idea to do what you can and then, most likely, let this go.

As far as your basic question, pros and cons of a court appointed guardian, that's really something to be guided on by a local attorney. Different jurisdictions have different procedures for vetting them, choosing them, appointing them, paying them. Quality can vary. I would be very surprised if s/he would or even could step in fast and effectively enough to prevent shenanigans with portable physical objects (my assumption about the heirlooms). An elder law lawyer who also does estate law would probably be in the best position to advise you about what steps to protect your interests might be possible both right away and after his death. Recouping value of dissipated assets might be a (theoretically possible) thing - but then again that depends on the heirlooms having financial as well as emotional value, and it sounds like that's not your interest in them anyway.

If there is a way you can preserve your relationships with your cousins enough to be able to have meaningful input into decisions that affect your uncle's remaining quality of life, even if it means sacrificing every single 28th generation ring/photo/piano, that would seem to me (as a human, not as legal advice) like the best thing to do.

(And hopefully this spurs the people in your immediate circles to take care of wills, living wills, and medical proxies!)
posted by Salamandrous at 3:56 PM on January 31, 2016 [1 favorite]

Response by poster: Update: I consulted with an attorney, who advised me to talk to my uncle's guardian ad litem, which I did. I won't go into details - just will say that I went to the court hearing, and I am extremely disappointed in the justice system right now, especially the attorney who was appointed to represent my uncle and clearly did not take his dementia into consideration at all. My cousin was appointed guardian. I will try to maintain a cordial relationship with her and remember that even family heirlooms are just things. Thanks to all who answered. It was especially helpful to hear that what I really need to do is let this go. I'm still having trouble with it, but it's getting better.
posted by FencingGal at 7:01 PM on February 25, 2016 [2 favorites]

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