Britney Spears isn’t the only one with a guardianship problem

The news about Britney Spears’ battle with her father Jamie to end his guardianship has garnered its fair share of headlines. But Britney’s high profile guardianship battle is hardly the first and won’t be the last. A recent study published in The Lancet reveals the number of children who have lost parents or caretaking grandparents, and the results will be with us for years to come.

The Lancet estimates that 1.134,000 children worldwide have lost primary parents, including one parent or a custodial grandparent. The study estimates that over 100,000 are from the U.S., which ranks fourth globally for the most kids orphaned by COVID.

We hope the children’s parents had wills that named guardians and life insurance policies to cover the expenses of the children’s lives, including college costs. But we know from experience that many of these American children will have their lives upended and depend upon the court to make life-changing decisions for them.

Our practice encourages parents of all ages and stages to plan for what would happen if both parents died. It is unpleasant to consider, but it is something that every family should plan for.

Guardianship is also an issue for the elderly or seniors who cannot manage their affairs. Usually, adult children face no choice but to seek guardianship when a parent refuses to yield control. It is not unusual. While the reasons seem obvious, the results are not always ideal. A parent can name who they wish to serve as guardian should one be needed in a power of attorney. The designation is not binding on the court, but the judge will give great weight to the parent’s intentions.

An example is an older woman who suffered from alcoholism. Her diligent son has gotten her into rehabilitation programs but to no avail. At 79, the chances of her having any recovery are low, and the almost weekly calls to the local rescue department have become a routine: she injures herself, calls 911, and goes to the hospital, where she stays for a short while and then is released again and again.

Does she need guardianship? She would benefit from having her son manage more of her life, including staying current on bills, but she is not at the point where a court could consider her incapacitated.

If the mother would grant the son Power of Attorney and sign an Advance Health Care Directive, he could help. Without her cooperation, the only way he could take charge of her affairs would be to petition for guardianship. It’s not an ideal solution to the larger problem, but there are few other options.

Our recommendation for families considering guardianship is simple. To protect minor children, parents need wills that leave their assets in trust for the children and name a trusted individual or financial institution as a trustee. They should also name a guardian for the children in the event of the death of both parents.

If the parents do not adequately plan, the courts control the children’s money until they turn 18. The court retains control over investment decisions, approval of all expenditures on behalf of the children, and the guardian must account annually to the court for money spent for the children.

Having an estate plan is a much better alternative for the child’s well-being.

In the case of aging parents, a comprehensive estate plan includes a Will, Power of Attorney, Advanced Care Directive, and other documents. Doing so gives the family the ability to help when the time comes.

Guardianship Horror Story Now Trending – “I Care A Lot”

The popular Netflix movie, “I Care a Lot” begins with a scenario loosely based on a real life nightmare reported by The New Yorker several years ago.  A large number of seniors were disenfranchised and abused by a guardianship system in Clark County, Nevada. Unfortunately, this is far from the only place where this elder abuse occurs.

For those of us who work daily to protect seniors, the movie provides an opportunity to broaden awareness of guardianship abuse.  It is not flattering to the courts who hand out guardianships without proper oversight, the guardians who steal the lives and property of seniors, and law enforcement officers who don’t understand that they are aiding and abetting an abusive, tragic series of events when they enforce the abusive guardians.

From our perspective as Elder Lawyers, the guardianship process is intended to protect seniors and others who, for a variety of reasons, are not able to manage their own lives. It is the last resort, usually also the last thing adult children want to do for their aging parents.

In New York State, there are a number of rules and procedures to prevent the type of abuse that was reported in The New Yorker article and is depicted in “I Care a Lot”. That’s not to say the Empire State has completely eliminated all of its guardianship abuse problems, but they tend to occur less frequently here than in other states.

One important rule that New York has established to prevent Guardianship abuse is a cap on fees collected from Court appointees in a given time period. When attorneys who sign up to become Guardians for people are awarded fees by the Court, they must log the fees within the system maintained by the State. Once they hit a certain amount of fees, they are barred from taking on additional appointment for a certain time period. This prevents people like Rosamund Pike’s Marla Grayson from being continuously appointed for people and acquiring huge fees from the Guardianship process.

New York also has rules on who can petition for Guardianships in New York. While there is a catchall “a person otherwise concerned with the welfare of the person alleged to be incapacitated” who is allowed to petition for Guardianship, this is reserved more for friends and non-family members already involved in the person’s life. Additionally, people’s own doctors, as depicted in “I Care a Lot”, cannot petition the Court for Guardianship of an individual, as that would break doctor-patient confidentiality and the release of protected medical information would violate HIPAA. Medical records from a person’s long-standing doctor cannot even be introduced as evidence in a Guardianship proceeding without the person’s consent, as it is protected by HIPAA.

For those who find themselves involved in a Guardianship hearing for themselves or a loved one, an attorney who is experienced in the guardianship process and understands the law is needed. However passionately a family member may speak in court, they cannot protect their loved one without understanding how the process works and how the law is applied. In the opening scenes of “I Care a Lot”, you see a man in Court pleading with the Judge about his mother who has been placed into a Guardianship. The man in a suit standing next to the pleading son, presumably his lawyer, sadly says nothing. A proper attorney in a Guardianship matter would be speaking for his client and arguing for his client’s interests. A competent and experienced attorney can help avoid injustices in the Guardianship process.

The best way to avoid needing a Guardianship is estate planning with a properly drafted Power of Attorney and Health Care Proxy. The estate planning process is a far easier and less court-intensive way for the senior and their family to determine who will be in charge of medical decision making and managing assets. And when a guardianship must be established because of a lack of planning, the process is long and reporting requirements are rigorous, which is as it should be.

If you have a choice, having an estate plan in place well in advance of any issues is the best option. When the option of Guardianship is turned to, make sure you have an attorney who can stand and fight for you.