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Guardianship - Older man arguing with a younger woman

Pall over the family: Dysfunction can lead to guardianships and deep regrets

by Tom Alberts | Senior contributor
September 7, 2018

Experts say many of the horror stories associated with court-appointed guardians are the result of family dysfunction and poor estate planning. Sibling rivalries, family disputes and misunderstandings coupled with a sometimes-inept judicial system can lead to abuse of elderly family members at the hands of unscrupulous professional caregivers.

The purpose of guardianship - enabling a person to care for the personal and property interests of another person who is unable to - may be a noble one.

The reality of guardianship, however, remains a nightmare for an alarming number of abused senior citizens and their frustrated loved ones, and it's a problem that often originates from family squabbles, experts say.

“Family dysfunction and sibling rivalry are the primary reasons the matriarch or patriarch of a family is typically guardianized and ultimately starved, drugged or isolated to death unless they are restored to capacity,” says Dr. Sam Sugar, founder of Americans against Abusive Probate Guardianship, based in Hollywood, Florida.

Sugar is a national crusader against the injustices of guardianship. His website documents dozens of horror stories of guardianshipsgone awry. His latest book, “Guardianships and the Elderly: The Perfect Crime,” was written as a “survival guide” for senior citizens and their families.

Guardians are court-appointed surrogate decision-makers for adults who have been adjudicated as incapacitated and unable to manage personal, medical or financial affairs because of mental or physical disabilities. Judges also appoint guardians for minors when the parents die, become incapacitated and in other situations. Those under the care of guardians are referred to as “wards.”

Sugar decries a judicial system that he says “strips its citizens of their constitutional rights, voids their existing legal documents, gives others the right to spend their money and sell their assets, isolates them and has the ability to limit the time they can spend with their loved ones.”

LOCKED UP 'LIKE AN ANIMAL'

The feuding children of Daniel Gross did him no favors. It was the summer of 2005 when Gross, a New York man in his mid 80s, decided to visit his daughter, Dee King, living in nearby Connecticut, but he had no idea how far out of the way his journey would take him.

Gross became ill during his visit and was hospitalized. “As his health deteriorated and Dee and her sister bickered, the hospital and family turned to the probate court. Big mistake,” writes Hartford Courant columnist Rick Green.

A probate judge appointed a lawyer to represent Gross. Problem is, the lawyer argued against Gross' wishes - to return home to New York - and requested a guardian be appointed to oversee the elderly man's affairs, writes Green, who used his journalistic pulpit to seek justice for Gross.

Instead of heading back to the Empire State, Gross was involuntarily placed in a Connecticut nursing home where he languished for 10 months. In the meantime, his Long Island home was put on the market because of mounting legal bills and guardianship fees.

His predicament has been blamed, in part, on his squabbling daughters' decision to let a probate judge - not trusted family members - determine his fate. As the ordeal unfolded, King came to realize the agony endured by her father.

“He wants to stay in New York,” King told the Courant columnist. “My father had a life. He walked. He talked. Then they take him and lock him up like an animal.”

Two volunteer lawyers took up Gross' cause and appealed his case to a superior court judge. “A terrible miscarriage of justice has happened here,” said the judge, who terminated the court-appointed guardianship and granted Gross his freedom.

WHERE'S GRANDMA?

In Florida, Jesse Locke is outraged a professional guardian was appointed to take control of a neighbor - his 84-year-old grandmother, Eloise.

After all, close relatives lived nearby and were willing to help out.

But a glitch in the system cost grandma her freedom, according to the family's attorney. Family members say they were barred fromseeing Eloise for 17 days after she was removed from her house under the Baker Act, a state law that allows for the involuntary institutionalization and examination of an individual.

Her removal, promoted by a petition to the court filed by a professional guardian, was preceded by visit from a sheriff's deputy. The removal took place even though the deputy reported that the home was livable, stocked with food, and there was no reason to remove Eloise.

The family attorney says one of Elosie's grandsons, who lives next door, should have been considered among the next of kin and notified when the petition for guardianship was filed. Instead, two of her surviving sons, who both live in other states, were notified and did not object to the petition. Her doting grandson, who does object to the appointment of a professional guardian, was not notified.

Guardianship - Grandmother with granddaughter

“Had notice been done properly, he would have been aware of the proceeding,” said family lawyer Gerald Hemness. “He could have appeared. He could have pointed out that he wanted to help his grandmother.”

Instead, the petition document had two important boxes that were checked. The first - a result of poor estate planning - states that no documents designating a guardian exist. The second - a result of family dysfunction and poor communication - says that relatives of the alleged incapacitated person did not object to a professional guardian.

“We were all overlooked in this process,” Locke told a Tampa television crew as footage shows him with his healthy, cheerful grandmother. “It was a nightmare,” a spunky Eloise told a TV reporter, adding “I think it's a bunch of bull.”

A LANDMARK CASE IN TEXAS

In May 2018, a Texas district court judge ruled that a probate judge could be sued by the daughter of an elderly woman who suffered broken bones and malnutrition before dying as a ward of the state of Texas.

The district judge found that the probate judge failed to exercise “reasonable diligence” to determine whether the woman's guardians were performing their duties. The probate judge ignored a request for emergency relief just two days before the woman died, “turning a blind eye to the preventable decline” of the aging mother, according to the AAAPG.

Guardianship - Older man speaking to a judge and reviewing documents

The ruling was considered a landmark decision and came a month after a representative of Texas Judicial Council, the policy-making body for the state judiciary, told Congress that nearly half of adult guardianship cases in the state were out of compliance with reporting requirements.

WHO SHOULD HANDLE YOUR AFFAIRS?

Those under guardianship no longer have final say on where they live or their medical care. Guardianship strips away rights to marry, enter into contracts and file and defend lawsuits. Gone are rights to control one's property, get a job, vote, travel - even to have a driver's license.

In typical cases, courts make findings of incompetence and appoint guardians over senior citizens in cognitive decline and disabledadults. Experts say that having a power of attorney, self-appointed guardian and a living will in place can prevent the appointment of a potentially abusive situation.

Careful estate planning is an important preventive measure. One key safeguard is a living will, or advance directive, that assigns ofpower-of-attorney authority over one's personal, financial and health decisions to a trusted family member, friend or other representative. Those hand-picked guardians can be designated - without court intervention - to oversee the affairs of a peoplea court declares to be incapacitated and unable to make decisions for themselves.

Establishing a living trust that sets up a procedure for a private determination of incapacity - and not a public determination by a judge — is another option to consider, suggests Minnesota-based estate planning attorney William D. Sommerness in an article for avvo.com.

In a living trust, people can list individuals they entrust to make a private determination of incapacity. Oftentimes, a person's doctor,spouse and one or more children serve on a “panel” that can make decisions about incapacity.

“For folks who feel they would rather have family and professional medical people who know them well make this big decision, rather than a judge they do not know and a court-appointed doctor who they don't know, the option of planning with a living trust is an option they really want,” Sommerness says.

There are numerous issues to keep in mind when creating your comprehensive estate plan. One helpful option to consider to avoid an unwanted guardianship is a Legacy Assurance Plan membership. Members are educated on a variety of estate planning matters and receive access to numerous resources they can use to achieve legacy-protecting objectives. Membership with Legacy Assurance Plan can help families in making important choices that will improve lives for the next generation and beyond.

How do I create an estate plan?

There are numerous options and scenarios to consider when developing an estate plan that protects your legacy and achieves your objectives, and important decisions should be made with the advice of qualified lawyers and financial experts. Membership with Legacy Assurance Plan provides members with valuable resources and guidance to develop comprehensive estate plans that take life's contingencies into consideration and leave a positive impact for generations to come. Legacy Assurance Plan members also receive peace of mind that a team of trusted, experienced professionals will assist them in developing legal, financial and tax strategies that will meet their needs today and for years to come through periodic reviews.

This article is published by Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at legacyassuranceplan.com.

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