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.

Four of the Latest Trends in Estate Planning

Over the past few years, I have noticed a several notable trends in the estate planning process that just a few short years ago weren’t even part of the main conversation. These developments, however, have been occurring with increased frequency and will likely continue that way in the future.  

  1. The Increased Importance of Competence Planning
  2. What would you do if:

    1. A son came to you and asked you to represent him in a court proceeding to put his father under guardianship for lack of competence, so that the son, once he became guardian, could obtain a divorce for his father, and implement the terms of the prenuptial agreement? And now that his father “no longer knows who he is or who he is married to,” the inheritance will be preserved for the son and his siblings?
    2. A daughter came to you knowing that when her father dies there will be a will contest and therefore wants to bring up the fight now while there are witnesses?
    3. A son who tried many times to talk to his father about his declining competence, and out of concern for the father and very frustrated with his father’s inability to deal with the subject, came to you for help in becoming his father’s guardian?

    Father and son image

    During the past two years, I have taken on cases with these exact scenarios. Each is complex for a variety of reasons, but each highlights the growing importance of competence planning. Simply stated, you need to put in place the legal mechanisms so that you can be taken care of the way you wish.

    It’s like the instructions you get from the flight attendant who tells you to put the oxygen mask over your own face first – after all, it is only when you put the mask on your own face that you then have the ability to protect others. In other words, protect yourself first.
    Make sure the documents that will protect you if you are unable to care for yourself -Health Care Proxy and Durable Power of Attorney – are up to date and accurately reflect your wishes. It is also critical that there is coordination between those who are in charge of your personal health care decisions and those who are in charge of your finances, and that you do whatever you can to minimize any conflict between those roles.
    Now, more than ever, it is critical to understand that estate planning is much more than planning for what happens when you die. In an increasingly aging population that is living longer, it is essential to include disability or incapacity planning as an integral part of the estate planning process.

  3. Rise of the Influence of Women in the Estate Planning Process. Statistically, women outlive men. That means that many baby boomer women will inherit money twice – once from their parents and once from their husbands. A tremendous amount of wealth will pass into and through their hands. Many of these women, however, were never primarily responsible for managing the household finances nor involved in the family’s wealth management plans.  Education leads to empowerment. Empowerment leads to action. Once this phenomenon is clearly understood, I recommend that financial, legal, and wealth advisors develop strategic programs to assist with that process.
  4.  

  5. Increases in Estate, Probate, and Trust Litigation.
  6. What would you do if a new client came to you with any of these scenarios:

    1. A shopping mall was put in a trust many years ago, and the trust mandated income to be distributed to the beneficiaries. As trustee during turbulent economic times, your client made the business decision to withhold income distribution in order to maintain a proper operating reserve. As a result, a cousin/beneficiary is suing your client to compel full income distribution. What does income mean? Does it mean trust income? Accounting income? Distributed income? Does the trustee have the right to withhold income if the document is silent on that point?
    2. A new client believes that his sister took financial advantage of their mother and would like to challenge the mother’s will. But the will contains a clause that if anyone contests the will his/her beneficial ownership interest is forfeited. What would you say to him?>
    3. A will names the oldest brother as trustee of the family business enterprise. The other siblings have never trusted him and come to your office with the request that he open the books and provide some transparency they can see for themselves how the affairs are being handled, and that he is telling the truth when he states that he is distributing all the funds to his siblings he is supposed to. This is one step short of litigation. How can this situation be diffused?

    These are actual examples of some of my recent cases. I have noticed that during turbulent economic times, patience is at an all-time low and heightened financial stress has forced challenges and court actions that, in the past, may have been otherwise resolved. I believe this trend is here to stay and that it is important to contemplate this when designing and implementing the business and estate plans for families today.

  7. Increased Client Need for Transparency, Simplicity, and Collaboration.  We live in an increasingly complex, post-Madoff world.  People do not know whom to trust with their wealth. They do not understand their estate planning documents. They do not understand or contemplate how the system of financial planning, estate planning, and wealth management works. Old assumptions have eroded. Transparency is critical. People do not want to do something they do not understand. Vetting and supervising wealth managers is increasingly complex. Many families have multiple advisors – wealth managers, accountants, lawyers, and trust officers. In this complicated time if the right hand does not know what the left hand is doing, the result may be a disaster. As advisors, it is important that we keep this in mind and develop strategies to take these needs into account. 

These trends have been occurring with increased frequency, which is a strong indicator that we, as advisors and counselors, should pay close attention to how we can provide our clients with the tools and information they need to best care for themselves and their loved ones.

 

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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