As more of the baby boom generation enter the so-called “danger age” it is important to discuss what can go wrong after a decision regarding incapacity. For instance, the U.S. Government Accountability Office in a 2010 report found that people in these trusted roles stole $5.4 million from wards during the preceding two decades.
A ward cannot vote, get married or divorce. Another person – often a family member, but frequently a court appointed stranger – makes important decisions (where the person will live, how money is spent and what health care is provided).
In this post, we will share a story about what can happen. Then we will discuss how to prevent it.
Fighting to restore legal rights after a recovery
Tripping on the stairs can lead to a protective proceeding. That is what happened to a 50-year-old woman in Nashville who suffered a serious brain injury from the fall. She did not have any advance directives in place.
Next Avenue reported on what happened. With no immediate family in the area, the court appointed a guardian who placed her in a group home for mentally ill patients. Her town home and possessions were sold to pay living expenses and legal fees.
After she made an unexpected recovered, it took two years for her to win freedom.
Terminating a guardianship or conservatorship
Protective proceedings can occur without the prospective ward in attendance. In these ex parte situations no one except the petitioner (a relative, hospital or nursing home) is present. In some cases, an emergency order might be signed without a hearing.
Fighting a designation of incapacity is extremely difficult. It has traditionally been hard to hire an attorney after a judge has decided you do not have the ability to make your own decisions.
Avoiding these proceedings altogether
Two documents can avoid the need for protective proceedings – saving costs for loved ones and guarding against financial abuse.
These are a financial power of attorney (designates an agent to pay bills, manage accounts and attend to your finances) and a medical durable power of attorney (appointing a person to handle medical treatment decisions).
One positive development is that the law recently changed in Colorado. Wards now have the right to a private lawyer when issues arise after an initial appointment. Our firm played a role in advocating for this change and we will discuss this new law in our next blog.