One family’s story of financial elder abuse.
You have worked with an estate planning attorney to have all your loved one’s legal documents complete: Last Will & Testament, Financial Power of Attorney and Healthcare Directive. You have all the provisions in place in the event your loved one becomes incapacitated with the prognosis of death. Thank heavens that was done, because shortly thereafter, you begin to notice some behaviors that appear to be the start of dementia. This is a not so uncommon trend being experienced by many households.
Unfortunately for one family, despite having these documents in place, guardianship was their only recourse. Diane (name changed) lives in New Jersey, her mom in New York, and siblings in other parts of the country. Along with their mom’s estate planning, Diane’s family had done care planning for her as well. Diane was put in charge of mom’s medical and her brother in charge of the finances.
Diane started to notice slight changes in her mother’s behavior, but brushed them off. Her mom was great at faking it. After a long career dealing with the public, “Mom could greet you with a huge smile and an effusive “Hello, how are you?” as if she knew you.” Diane’s mom was eventually diagnosed with multiple dementia’s: Frontotemporal Degeneration Dementia (FTD) and Alzheimer’s.
Then, one day, a single phone call turned their world upside down. A lawyer that the family had never heard of before called Diane to tell her and her brother that they had been taken off as financial and medical powers of attorney as well as executors of the will at their mother’s request.
As it so often happens in elder abuse cases, the perpetrator was known to Diane’s mother. She was her mother’s best friend who had been helping take care of her. Diane and her siblings were grateful she was there helping their mother until now…when they discovered that she had the documents changed over with the help of this lawyer.
The family has to retain their own lawyer to immediately start guardianship proceedings over their mother and revoke the existing POAs. It took almost seven months to get guardianship in place and during that time Diane’s mother’s health continued to deteriorate.
Here is how Guardianships works legally:
Guardianships can be plenary i.e. seeking full authority over the person and property of an incapacitated individual, or they can be limited. With a full guardianship, the complete liberties of an individual are taken away and the guardians now stand in the shoes of the ward- and do everything that he or she could do when they were competent (subject to certain limitations). A limited guardianship on the other hand is requested when the ward is able to perform certain actions and all parties agree that it is in the ward’s best interests to retain freedom in these limited areas that are then carved out in the Judge’s Order, so that it remains in place even after the guardianship is established.
Along with a Complaint and an Order to Show Cause, two doctors’ certifications or evaluations must be provided to establish the Alleged Incapacitated Person (or AIP)’s incapacity. Once the application is timely submitted along with the filing fee, the Court then sets a date for a hearing and appoints a Court-Appointed Attorney to go out and interview all Interested Parties, get an idea of the AIP’s assets and conduct an investigation for any indescrepencies. This investigation serves as checks and balances to ensure no abuse or self-interest by the proposed guardian(s). After the hearing, if the judge approves the guardianship, the guardians get qualified (a bond is posted if there are assets in the estate) and thereafter the guardians are subject to an annual reporting of the ward’s well-being.
As you can see, the legal fees that get paid out of the Ward’s estate quickly add up to several thousand dollars during the Initial complaint stage with some minimal ongoing expenses every year thereafter. Additionally, any time the guardians want to do anything with the ward’s estate (like sell a home or engage in gift giving for Medicaid planning purposes), if this request was not brought forth in the initial action, the guardians will have to go back to court once again to seek such approval. Therefore, Guardianship proceedings are not only expensive, but also time-consuming and somewhat emotionally draining.
Once the guardianship is established, the guardians (as fiduciaries of the ward) have to ensure that they always make decisions in the ward’s best interests. They have to think about where the ward will live, how he or she will be looked after on a daily basis, keep good records of all the money spent on the ward as well as manage said ward’s income and assets. Special needs trusts may be set up for any excess assets so that the ward, if eligible, can receive government benefits. Guardians have to always be extra careful when doing anything for the ward and consult with the right professionals so they do not inadvertently jeopardize the ward’s interests.
Rekha Rao
Estate Planning and Elder Law Attorney
Rao Legal Group, LLC, Princeton
This is what guardianship looked like for Diane and her family.
At the guardianship hearing, Diane’s family had to fight the opposing lawyer representing their mother’s friend and other family members who had added themselves to the mix during the seven months of hearings and testimonies. The process was long, expensive and painful but in the end, Diane and her family were granted plenary guardianship over their mother.
“It was hard to stand in a courtroom as her daughter and say in front of her. “My mother can’t live on her own.” Diane
Because Mom could not live alone, at the Order of the court, the family hired a Home Health Agency. The courts made them go through multiple agencies before they found one that worked. In one instance, they suspected abuse by the caregiver and had to go back to court for an Order allowing them to install cameras in the home. The camera footage revealed caregivers who were inebriated, so the family had to look for another agency all over again. Added to all of this, because of their mother’s condition of FTD, Mom was becoming violent. Since Home health aides cannot administer drugs, a nurse was required to come out to the house to administer her regular medications, but she was not allowed to administer medications that would help the violent behavior.
When they realized that mom would do better in a memory care facility, they went back to court to allow her to move from New York to New Jersey. Thankfully, Diane’s Mom had Long Term Care Insurance and so the financial burden did not fall on the family. As difficult as the guardianship process was, it gave the family the power to get Mom the right care and into the right facility.
Once settled into the New Jersey care facility, Diane’s mom became much happier. Diane learned to “meet them where they are;” she used verbal questions like “Do you have kids?” as a clue to see if her mother would recognize her as her daughter. During her Mom’s years in the New Jersey facility, Diane brought books to read to her mother which she had read to her Diane’s children when they were young. Another favorite pastime of theirs was to listen to 50’s music together. It had finally worked out for the family and things became more settled.
When I asked Diane what advice she would give to people who are faced with this situation, she responded: “Document EVERYTHING, it becomes evidence at the guardianship hearing. There is a steep learning curve to navigating the system.”
Disclaimer: The material in this blog is for educational purposes only. It is not intended to replace, nor does it replace, consulting with a physician, lawyer, accountant, financial planner or other qualified professional.
