It’s not every day that a late-night show takes on the topic of guardianships (in Colorado these are two appointments – a guardian makes decisions about well-being and a conservator handles finances). The Last Week Tonight segment with John Oliver began with this unfortunate fact: it is all too easy for a stranger to take control when a senior starts to fail.
There are approximately 1.3 million wards under guardianship across the country. This number will only increase as more baby boomers start to need additional help due to memory loss or other serious illnesses that affect cognition and decision-making skills. How can fiduciary relationships go wrong?
Colorado and other state examples
In our last post, we discussed a Colorado case where the court appointed a brother to handle the finances for his sister who suffered from schizophrenia. He breached the fiduciary duty owed as a conservator by redirecting a portion of her inheritance to his bank account to correct a mistake he believed his mother made in her estate planning.
If a power of attorney does not exist and there is not a child or other loved one to step in, the court may appoint a professional conservator or guardian. Many of these individuals take the role very seriously and do a good job.
But John Oliver highlighted several cases where this did not happen. April Parks, is a notorious Nevada guardian who had more than 100 wards at one time and has faced felony criminal charges for allegedly overbilling clients. An accounting in another Arizona case included a bill of more than $1,000 to help an elderly woman attend a Phoenix Suns game. These sorts of charges can quickly deplete a lifetime of savings and there is little oversight.
How to avoid a court case
As we have often said, an honest conversation with loved ones is crucial to ensure they know what you want to happen if you can no longer make important decisions. While it might be many years into the future, an accident or illness can strike unexpectedly. Make sure you have the right documents are in place to remove guesswork and avoid guardianship or conservatorship proceedings.
The celebrities that John Oliver enlisted to get the message across included Lily Tomlin, William Shatner and Fred Willard. While they get off topic believing they are doing a public service announcement that “hippos are killing machines,” they do share some important tips. One is to have a durable power of attorney listing someone you know and trust – for example, a son/daughter, close friend or Tom Hanks.
All joking aside, it is important to speak with an elder law attorney to plan for incapacity and protect your future finances/an inheritance for children or other loved ones. And for anyone appointed as a guardian or conservator, legal guidance at the outset can avoid potential issues down the road.