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Guardianship: The Ability to Make a Difference - Carl Ahrens Price
The practice of elder law includes many things and perhaps the most difficult, and certainly one of the most important, involves issues of guardianship. In the last two years we have participated in a number of “contested” guardianships. I used to think that matrimonial law was the most contentious but I am rapidly coming to the conclusion that there is nothing worse than fighting over an elderly, ill parent.
As elder law attorneys, we wake each morning with the possibility that we can do something positive to better the life of a senior citizen and indirectly that senior citizen’s family. It is a nice feeling walking into the office knowing that we have the capacity to make such a positive change in one’s life. As a senior ages, he/she frequently requires the assistance of loved ones to ease and guide them through their final years. Most families pull together to help their loved ones. But it is becoming more common in our practice to meet with dysfunctional families who argue and fight over every decision and every penny their elders have.
Marisa (a somewhat fictitious individual) is in her early 90s. She is a widow with three children. She is no longer able to prepare her meals, make her bed, clean her room or do the multitude of things she did just two years ago. She needs help and/or supervision to take her medication, dress herself and even to take a bath. She is becoming incontinent. Clearly, Marisa can no longer live alone and the children are fighting over who will take care of her and who will control her assets.
Marisa never prepared a power of attorney. She never wrote a will or drafted a advance directive for health care. Thus, the decision of who should be her guardian and control her affairs is in the hands of the courts. It is up to an individual who never knew Marisa to decide the path her life will take over her final years. There is certainly no more important decision a Chancery Judge is called upon to make than to decide these issues.
Marisa has come under the control of her daughter who successfully convinced Marisa to put her on her bank accounts and to transfer ownership of her home to her. Marisa’s sons have noticed that during the last 12 months she has become withdrawn from them and has refused offers to visit with the boys and their families. Frequently, when they call their mother their sister is present and always finds an excuse why mom can’t come to the phone. And, when they do speak with mom she always defers to what her daughter wants. Only recently did the boys learn of mom’s financial transactions and that was the “straw that broke the camel’s back.”
Marisa’s sons sought our assistance in prosecuting a guardianship on behalf of their mother. They had real concerns regarding their sister’s handling of Marisa’s affairs and noticed that her health appeared to be rapidly declining, and she was much more fragile. Our investigation disclosed that the boys were absolutely correct in their beliefs. We found that almost all of Marisa’s assets had been transferred to her daughter. Over the years Marisa and her husband always treated their children equally. They were always generous with them and never showed preferences. If they had a favorite child, you never knew it. Therefore, the transfers to the daughter were inconsistent with her parents’ prior conduct and expressed wishes.
We filed suit for the boys and their sister retained counsel to aggressively oppose the requested relief. She was desperate to retain control, even to the extent of involving Marisa in each and every step of the proceedings. She recognized that should one of her brothers be appointed guardian she would lose control of Marisa’s monthly income. She also realized that the court might well set aside the gifts she convinced her mother to make and, therefore, she had a significant financial interest in the outcome of the case. Unfortunately, she was more interested in the finances than in her mother’s well-being and mom became a mere pawn in the proceedings.
The court appointed, as it was required to do, an attorney for Marisa. She met with Marisa and her daughter, and also with the other children. She reviewed Marisa’s finances, looked at the “gifts” she made to her daughter and considered Marisa’s medical records. She visited the house to observe Marisa’s living conditions. She talked to friends and neighbors and then wrote her report. She concluded that Marisa was an incapacitated individual who was incapable of handling her affairs and managing her finances and advised the court that she needed a guardian. The attorney also told the court that, in her opinion, the daughter was not the appropriate person to serve as guardian and further reported that, in her opinion, the daughter mishandled her mother’s finances and the assets which she received “as gifts” should be returned to her mother.
The daughter, in her efforts to protect her financial interests, retained her attorney to represent Marisa. Although it was clear that Marisa was an incapacitated individual, the presumption of competency existed (until the court decided otherwise following a plenary hearing) and the daughter’s attorney was permitted to represent her mother. Depositions followed and extensive paper discovery was pursued. Motions were filed and orders to show cause were obtained, all in an effort to expedite the matter and protect Marisa from further physical harm and continuing financial exploitation. Throughout it all, the daughter and her attorney obtained certifications from Marisa and brought her to each and every hearing notwithstanding the fact that Marisa had no idea of what was happening. The daughter never missed an opportunity to tell Marisa that her sons were bad people who wanted nothing more than to take her money and her house and to prevent her from seeing or spending time with her.
Trial lasted over five days and those five days were spread out over four months. During it all, Marisa’s mental and physical condition continued to decline. At the conclusion the trial court ruled that Marisa was an incapacitated individual and appointed one of her sons to serve as guardian after first determining that the daughter should not serve in that capacity.
At all times Marisa’s sons were acting in what we were convinced was Marisa’s best interest. Ultimately the trial court agreed with us. The disappointing fact in this case was that it took over a year to obtain a judgment. That year resulted in continued exploitation by Marisa’s daughter and a worsening of Marisa’s physical and mental conditions.
We took the case because there was a senior citizen in need and a family who didn’t know what to do. The capacity of an elder law attorney to improve the life of a senior citizen was what motivated us in the first instance. The ability to affect, in a positive fashion, the well-being of another human being is perhaps one of the highest callings of the legal profession. As difficult as this case was we wouldn’t hesitate to take it again.