Adult Guardianships for The Elderly
Aug. 3, 2017
Adult guardianships are more common today as the so-called Baby Boomer generation ages. Yet, in our free society, one adult does not legally control another without a compelling reason.
Michigan’s probate code provides for adult guardianships under the proper set of circumstances. But what happens when the guardian abuses the protected individual?
Over the weekend, we noted with interest an article on this topic in the Sunday NYT. The article highlights a woman who spent thousands of dollars and years of effort attempting to wrestle her father’s guardianship from a financially abusive significant other.
The unmarried couple lived in Las Vegas; where else. They were together for many years. Sadly, the man eventually exhibited signs of dementia.
Eventually, the companion told the daughter she could no longer provide adequate assistance. But when the daughter arrived to collect her father, the companion blocked the daughter using her guardianship authority. We have seen this dynamic in many cases here in Oakland, Wayne, Genesee and Macomb counties.
Upon obtaining guardianship, the female companion inserted herself into the man’s bank account, removing over $200,000. Eventually, this disbursement resulted in a criminal conviction.
Records unearthed by the man’s daughter -his only child- showed the companion racked-up thousands of dollars in gambling debts. The daughter was devastated by the probate judge’s ruling -after 12-days of trial- to continue the companion’s adult guardianship.
Pattern of Elder Abuse
The case follows a pattern of exploitation for the elderly or mentally incapacitated. Misplaced trust in a romantic companion or friend often has grave financial consequences.
As is typical is such cases of elder abuse, the companion restricted daughter’s access to her father. In one incident, the daughter racked-up over $2500 in legal fees simply to broker a dinner with her father.
One way the daughter could avoid this scenario is to take an early proactive role in her father’s affairs. By law, notice of an adult guardianship proceeding must be provided to the adult children of an allegedly incapacitated individual.
For whatever reason, the daughter did not initially object to the guardianship proceeding. She came to regret that decision.
From the probate judge’s perspective, a big red flag is family member indifference to the initial guardianship petition. The best time to object is at the outset of the probate court proceedings.
Adult guardianships are controlled by statute here in Michigan. An entire chapter of the Estates and Protected Individuals Code [EPIC] -our probate code- addresses adult guardianships.
Because having such control over an adult is disfavored under the laws of our free society, EPIC deploys several safeguards. Before a guardianship is established, a Guardian Ad Litem investigates the petition, interviews the allegedly incapacitated individual, and reports to the probate judge.
Also, a hearing is conducted where all interested parties have an opportunity to be heard. If the probate judge finds, by clear and convincing evidence, that a person is incapable of taking care of their own affairs, the guardianship is often granted.
Once granted, the guardian must visit their ward at least once per quarter and file an annual report. If problems arise, then interested persons can file petitions addressing their concerns.
By statute, the probate court orders a guardianship review on its first anniversary, and then every five years thereafter.
Prevent Disruption of Healthy Family Relationships
In the Las Vegas case, the adult guardianship completely disrupted the father-daughter relationship. The guardianship was a legal barrier to any ongoing relationship with her father.
This case is heart-breaking. Adult guardianships do not have to unfold like this.
We have seen many cases where the fiduciary, whether a guardian, conservator or trustee, abuses the ward’s finances or physical condition. Usually, but not always, the probate court addresses such issues. That can only happen, however, when a judge is aware of the problem. Only the enumerated interested parties can bring an issue before the court.
When serving as a guardian, best practices include maintaining accurate financial records, documenting all medical treatments, and frequent ward visits.
We Can Help With Adult Guardianships
If you have concerns about an adult guardianship, contact our office to schedule a free consultation. Our law firm has experience with these and other probate matters.