Britney Spears and Adam Lanza: At What Point Should a Parent Become a Guardian/Conservator of an Adult Child?

guardian, guardianshipMore and more often, we see front-page news of adult children with issues so significant that they need a parent or another adult to become their legal guardian or conservator. When we think of traditional legal guardianship or conservatorship, we think of the minor child whose parents may have died young, the elderly parent with dementia or Alzheimer’s, or an adult who has been severely injured and can no longer take care of himself.  But is there a new category evolving? That of an adult child whose decisions are impaired?

Britney Spears’ father has been her court-appointed conservator since 2008 and has been in charge of her legal and financial decisions since then. Britney, however, performs worldwide, is a brand spokesperson for perfume, records albums, and has regular visitation with her minor children. Yet while she is under conservatorship, she does not have the legal right to make financial or legal decisions… and she may not have the right to make decisions concerning her own medical care.

Elsewhere on the spectrum, Adam Lanza, the young man responsible for the Sandy Hook massacre, was not under any guardianship or conservatorship. Yet he was obviously in need of care.

At what point does it make sense to appoint a guardian or conservator for a young adult who is struggling with life decisions and displays an impaired ability to care for him or herself? When a person is put under guardianship or conservatorship (in some states, conservatorships are called adult guardianships, but the terms mean roughly the same thing), then that court-appointed fiduciary has the legal right to overrule the decisions the ward makes. The court-appointed fiduciary must report to the court and in certain circumstances, such as ordering anti-psychotic medication, must prove to the court why it is essential to do so. The issue at hand, however, is when and where to intervene and seek guardianship. After all, plenty of young adults in this country make bad, and sometimes unsafe decisions. They may be addicted to alcohol or drugs, but does that mean that their personal liberties should be taken away and their rights overruled?

It is interesting to note that in many states, the protective proceedings of guardianship or conservatorship can be voluntary – the person involved can agree to have a legal guardian or conservator appointed so that financial and/or legal decisions can be made. A distinct advantage to this type of protective proceeding is that it does not have to be adversarial. Twice in my practice I have seen a person enter into a voluntary protective proceeding and then have that protection end after a few years, eventually taking charge of his life and making his own legal and financial decisions.

It is (and should be) difficult to put adults under guardianship or conservatorship against their will. Taking away someone’s personal liberties is not something to take lightly. To complicate matters, many states define competence for legal purposes differently from competence for medical purposes. In all states, however, those seeking to place someone under involuntary guardianship or conservatorship must first produce ample medical evidence to support this course of action. The decision of whether or not to embark on a guardianship or conservatorship for an adult is a tricky one – in this country we are presumed competent until proven otherwise and when it is proven the person under care no longer has the right to make his or her own decisions.  Embarking on the process of taking away someone’s personal liberties and substituting your decision for their decisions is fraught with emotional and legal peril. Courts should go very slowly and carefully on this slippery slope.

The person being put under guardianship or conservatorship receives advance notice of the court proceeding and then has the right to object to it. Court proceedings can take time and can be costly – including legal fees, fees for the person acting as guardian or conservator, and possible fees for medical testimony and court-appointed investigators. Plus, court proceedings are public. If the proceedings involve finances, the court-appointed fiduciary must also file annual accountings.

Even in such difficult circumstances, families don’t want to believe that the situation is as bad as it appears. They focus on the good days and shrug at the bad ones. No matter how bad things are, they want to believe that the situation might still improve. Therefore, the decision to embark on an adversarial protective proceeding is extremely difficult for a family to make – especially if the outcome of that proceeding is not clear. The adult child may create a rift within the family, where some agree that this is the wrong way to go, while others feel it is the only alternative. If the adult child “wins” and retains competence, then family relations will break down and any trust or confidence between the parent and adult child will evaporate.

A lesser route, and an important first step for many, is putting in place the basic estate planning documents – durable power of attorney (for financial purposes) and health care proxy (for medical purposes). These documents are important because they start the process of providing another person with the legal authority to act. Another advantage of these documents is that they exist outside the court system. Therefore, any financial actions taken by the attorney in fact under the durable power of attorney, or health care actions taken by the health care proxy, are private.

These documents are also important for parents who wish to view the medical or financial records of their adult children – because once young adults attain the age of majority (age 18 or 21 depending on the state of domicile), then no one has the right to access their records without a HIPPA release. These documents waive the HIPPA privacy rights. In most states, adults have the right in a durable power of attorney to designate who they would name as their guardian/conservator should protective proceedings commence. The person nominated as a fiduciary has the right to be present in a protective court proceeding, if such a proceeding commences. Unfortunately, in extreme cases, it also gives that person the right to revoke these documents.

For many of our clients, dealing with an adult child who has significant mental, drug, or addiction issues can be a considerable challenge that disrupts the family. In addition to the traditional paths of medical and psychiatric care, the appropriate legal mechanisms should be explored. At a minimum, for any child at the age of majority, a health care proxy and a durable power of attorney should be executed. For more extreme situations, the legal protective proceedings, guardianship or conservatorship (voluntary or involuntary) may be an answer. To fully explore the available courses of action, I recommend consulting an estate planning or disability planning attorney, a physician, and a psychiatrist.

 

Patricia Annino is a sought after speaker and nationally recognized authority on women and estate planning.  She educates and empowers women to value themselves and their contributions in order to ACCOMPLISH GREAT THINGS in the world – and in so doing PROTECT THEMSELVES, those they love, and the organizations they care about.  Annino recently released an updated version of her successful book, Women and Money: A Practical Guide to Estate Planning to include recent changes in the laws that govern how we protect our assets during and beyond our lifetime.  To download Annino’s FREE eBook, Estate Planning 101 visit, http://www.patriciaannino.com.

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