Here is advice on avoiding the pitfalls of legal guardianships for the incapacitated, gleaned from interviews with lawyers, advocates and others experienced in them:
- Get legal documents in place: Encourage elderly parents to prepare or update their will and a final health directive. Review family trusts and consider designating trusted adult children as co-owners on investment accounts for seamless transfer. Establish an estate executor or power-of-attorney designee. Relatives should realize they may not outlive the senior, so naming successors is a must. Identify preferred family caretakers, living arrangements and doctors. Suggest a codicil to the will that says any family member who challenges the estate directives, whether the elder is still living or not, will be disinherited.
- Create a record: Call a family meeting so everyone is fully informed of the elder parent’s plans. Record video of them reading the will and discussing their hopes and wishes as they grow older. Such videotapes are powerful evidence in court should that become necessary. Dating the video is essential, so display that day’s newspaper.
- Get family members on board: Unwanted legal guardianships most frequently stem from family disagreements about what is best for the aging parent. Mediation or family counseling is always the best first step. Avoid going to a judge to “decide the dispute” whenever possible. This can set the stage for court-ordered intervention.
If a guardianship is being threatened or established, experts recommend:
- Hire lawyers: The family may want to consult with a civil rights attorney in addition to an elder law lawyer. Remember: The first step toward guardianship is to declare “incapacitation,” which strips the ward of his/her rights to make all personal and financial decisions.
- Keep a detailed record: A daily journal of all aspects of court activity, especially the original Petition for Guardianship, which may contain inaccurate statements that are not subject to full court hearings. Ask the court for copies of every motion and ruling and keep them in chronological order. Make note of all phone calls with court appointees and their content.
- Avoid heated arguments: Anger or frustration, especially directed at a judge, lawyers or court appointees, can be used to label the family as “dysfunctional” and lead to more stringent and isolating guardianship. Isolation of the ward from family is common. Battling for visitation rights is costly and can take longer than the ward will live.
- Check to see if you're covered by “right to association” legislation prohibiting court-appointed guardians from indiscriminately banning family visits to their wards. Pushed by the National Association to STOP Guardian Abuse, such laws have been enacted in Rhode Island, Nevada, Utah, South Dakota, Tennessee, Arizona, New York and the Virgin Islands.
- Seek support: There are many groups that can offer support and advice, including Americans Against Abusive Probate Guardianship, the National Association to STOP Guardian Abuse and the Center for Estate and Administrative Reform.