If you live long enough, there will likely come a time when you are asked or you determine that someone you care about might be in declining health, physical or mental or both, and you are worried about their ability to make decisions — that they might be neglected or, worse, exploited by some other person. You are not alone. Years ago, most guardianships were for minor children or adults who had disabilities or injuries. As the population ages and people are living longer, adult guardianships (also called a conservatorships) have become an integral part of a person’s life plan. My father was notoriously private so it took him to age 84 before he was forced to ask one of the two lawyers among his progeny to help him. He could not do his income taxes anymore.
The majority of people think they can handle the situation with a Power of Attorney for Property and also a Health Care Power of attorney often dubiously referred to as a Living Will. The latter is a fine thing for anyone of any age to have in place. If you are having a medical procedure done under general anesthesia, the medical facility will likely require the patient to have one in place before they will operate. Why? In that document, the patient spells out her/his intentions regarding the prolonging of his life if something should happen to where she/ he could not communicate her or his wishes. If the hospitals fear another Terry Schiavo case where a brain-dead human remains trapped within her own body for years while courts thrash out her intent, how would you like to be that person?
Powers of Attorney recur in the News and especially the legal news when there has been a breach of that empowerment. Someone once said that more is stolen with Powers of Attorney than all the bank robberies in a year.
For the past twenty years, my stump speech to people seeking a Power of Attorney for a loved one is this: If you become someone’s agent under a Power of Attorney, it is like taking hold of a sword by the blade end. You become liable for any event you undertake on that person’s behalf that does not benefit the person for whom you are the agent. If Mom says she appreciated all your fine work for her and says to pay yourself $500, you can’t take it. Anything that looks like self-dealing is automatically suspect and the Guardian has to prove it wasn’t by clear and convincing evidence. Even an affidavit by Mom probably won’t pass muster. Any interested person can take you to court and require a strict accounting for what took place under the power of attorney.
Very often, I am approached when a person indicates an interest in taking charge of an aging parent but her/his siblings are not in accord. A Guardianship lets that person off the hook. Do you really want to spend the rest of your life with a brother or sister who thinks you took advantage of Mom or Dad? In this most recent case, the daughter had been caring for her father as the geographically closest (often the case) but her brother protested the Guardianship petition she had me file. As I explained it to the brother: “You should applaud this. Your sister has to account for every penny in all of his accounts as of the date she is appointed. She has to have receipts or canceled checks or credit card statements for everything. A lawyer will be compiling that accounting and certifying that it is true and correct to the best of his knowledge and then a judge will scrutinize it and require proof of anything that does not look transparent. She will have to get court permission to move him to a facility or change the facility. She will need a court order to sell the house, fix up the house, spend any of his money on anything which is not in the budget she has to file each year, seeking what she can spend in the coming year. You should love this Guardianship.” He did.
“Mom doesn’t need a Guardian; she’s fine … or not that bad.” Mom had been the accountant for a Construction Contractor for 34 years and her boss would tell people he didn’t need a computer because he had Mary — who kept track of anywhere from 17-41 projects going simultaneously without a flaw. She now had early-stage Alzheimer’s and the fact that the brain of hers of which she had been so rightfully proud now could not find the right word was devastating to her. Her daughter sought Guardianship and took her into her home. Mom was no longer competent to execute a Power of Attorney and the daughter wanted no trouble dealing with her bank, pension plan, social security, 401(k) plan, etc. Her brother was adamant that Mom was not that bad. He planned to come to court and oppose it. I suggested my client set up a weekend visit for Mom with her son. Her brother called on Sunday morning to let her know that he no longer opposed it. A dose of reality with regard to what is involved in caring for an aging parent can be a strong persuader.
How do you set up an adult conservatorship or guardianship?
Setting up an adult conservatorship or guardianship can be a complicated process. You will likely need an experienced lawyer in the area of elder law to maneuver you through the legal aspects properly.
The first step is obtaining a Report of Physician where a doctor who has recently examined the alleged disabled makes such a finding in writing. This can be difficult sometimes if the person doesn’t think they are ill or are not letting relatives know which doctor they are going to. In Cook County, it is called a CCPN-211 Report of Physician and it is necessary to have a signed original before attempting to file a Petition for Guardianship.
The Law Offices of David Blocher is a specialty law firm serving Chicago, IL and the surrounding areas specializing in elder law, probate administration, and estate planning services. Our attorneys take a keen interest in each case and offer personalized and attentive services to every client. If you need legal assistance in any of these areas, please feel free to contact us at (312) 257-3950 or visit our website at http://www.blocher-law.com.