Contested guardianships becoming more common

Virginia Lawyers Weekly//February 20, 2014

Contested guardianships becoming more common

Virginia Lawyers Weekly//February 20, 2014

Old Man unhappyYou’ve filed a petition to have your client appointed as guardian and conservator for his 87-year-old mother, who he has been “looking after” for the last few years. A few days later, you receive an answer in the mail, filed on Mom’s behalf, claiming that she doesn’t need any help – she can manage her own affairs, both health care and financial, without a guardian or conservator. Mom now has her own attorney, and she is challenging the action.

Or the guardian ad litem calls, and tells you that your client’s sister has said that your client has a criminal record, and has been living off Mom’s money since their father died. The sister agrees that Mom probably needs a guardian and conservator, but won’t agree to have your client appointed. Plus, sister says that if Mom has to sell her home and move to a facility, then sister wants assurances that the family “heirlooms” will be properly divvied up between the two siblings.

Sound familiar? The “simple” guardianship may have just become contested –and now may involve not one, but two, additional attorneys.

To elder law attorneys filing guardianship actions, such challenges are becoming increasingly commonplace. And while the concerns of family members may, at first, seem out of place within the context of a guardianship action, there is often no other legal forum to properly address these issues. They become intertwined with the core issues of guardianship actions: Assessing the alleged incapacitated person’s ability to manage his or her affairs safely and appropriately, and addressing whether the proposed guardian/conservator is an appropriate person to serve. At first glance, none of these other concerns “belongs” in such a proceeding. Yet with few other opportunities to resolve these issues, other than an action for breach of fiduciary duty (which won’t always address the true issues or provide proper remedies), or working with the Commissioner of Accounts (if they will take on the task), guardianship proceedings are becoming the one-shop-stop for dealing with all issues at once.

Challenges by the alleged incapacitated make sense. The law specifically provides for limited guardianships and limited conservatorships, so it is not unusual for the compromised elder to be able to find and retain his or her own attorney, or to appear quite competent and articulate even though bills haven’t been paid and the house hasn’t been cleaned in months. Or maybe the incapacity is really a vulnerability incapacity – the inability to resist the undue influence. But such challenges also raise issues not addressed by statute, such as payment of attorney’s fees when the respondent’s attorney is not court-appointed, and discovery of medical reports.

Mix these issues in with the concerns and claims of family members, and it only gets worse. Consider this:

Preservation/Disposition of Assets

In some situations, the need for a guardian or conservator may be undisputed, but family members disagree about the preservation or disposition of the Elder’s assets. In some cases, a home must be sold to pay for care in a facility. But what happens to the contents – the heirlooms, the memories, the valuables – most of which the family sees as “their inheritance”? Must the contents of the house be sold? May they be distributed to the family before death, or must they be stored, at continuing cost to the elder? When the conservator is NOT a family member, this concern may be magnified – they’ll agree to the appointment so long as they get some promises in return. While these issues arise primarily when there is no financial need to liquidate the tangible personal property, disagreement among family members about the disposition of these assets may trigger deeper emotional issues, again increasing the complexity of the case, and the legal fees. Similar issues arise when vacating the home – can it be preserved as the potential inheritance for the children, or must it be sold when the elder no longer needs it as a residence?

And when there is a financial need to liquidate assets, what should be sold – real estate, tangible property, or both? The CD that is joint with sister, or the one that is joint with brother, or with a grandchild? To what extent is it appropriate to involve the family in these decisions during a guardianship action? And regardless of whether or not the conservator is a family member, a guardianship proceeding can be an expensive way to deal with these concerns.

Undue Influence and Financial Exploitation

While perhaps the most complicated issues which are brought into guardianship proceedings, these are often the primary motivators which lead to filing such an action. Undue influence can be very difficult to detect, and even harder to prove – especially with a “consenting” elder. Financial exploitation can become quite easy when an adult child moves in with a parent during the illness of the other parent, or after the death of a parent. H/she takes over control, and either actively or passively exerts pressure and undue influence. The pressure may be for financial assistance (“I’m the one taking care of you – you owe me!”), or may relate to personal or health matters (“You don’t need that doctor or that medicine – you’re fine.”)

In some cases, the exploiter arranges for the elder to sign a new power of attorney or advance directive – appointing the exploiter as sole agent. And regardless of whether the financial exploitation occurs through the direction of the agent, or by direct instruction of the (influenced) elder, it is still exploitation. And when the exploiter is the nominee to serve as guardian or conservator, it certainly goes to the heart of the action: the suitability of that individual to serve.

Sometimes the elder has borderline incapacity, and could get along with the caring assistance of family, without a guardian or conservator, but for the presence or pressure from another family member or “friend.” The family member or friend may have good intentions, or may be taking advantage of the elder – either way, his or her presence and negative effect on the elder may have risen to a level where the elder’s independent will has been usurped, and a guardianship or conservatorship action has been filed. The elder remains at risk of being unduly influenced unless another person is placed in charge. In these cases, discovery, analysis, and presentation of evidence take on an entirely different dimension, as you try to prove the “bad acts” in court – whether to move toward recovery of assets, or simply to stop the bleeding and remove the exploiter from control.

Battles for Control

A less significant but still common challenge arises in the family who agrees that a parent is incapacitated, but either disagrees as to whether his or her needs can be met under a current advance medical directive and power of attorney, or as to who should be “in charge” – either under existing documents or pursuant to a court appointment. Or the family may agree regarding incapacity, but disagree regarding matters such as residential placement (in home or in a facility), or selection of caregivers (family, home, facility, exploiter) – all of which may ultimately be determined in the courtroom.

Whether representing an elder in a guardianship/conservatorship action, or a family member in a challenge to such an action, it is important to keep focus on the needs and best interests of the elder. These proceedings bring out deep-seated emotional issues for the families involved, and sometimes bring forth long-standing family habits and disputes which are only tangentially related to the actual proceeding. And while many of these other issues can appropriately be injected into such a proceeding, it is too easy to expand the action beyond the reasonable intent of these statutes. With legal fees often exceeding tens of thousands of dollars in these matters, it is important that both elder law attorneys and other litigators involved in these actions maintain proper focus, and determine what issues need to be resolved in a guardianship proceeding, and which may be adequately addressed in other ways (including counseling!).

– By Rhona Levine. Levine practices law with Coleman & Massey PC in Roanoke.

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