Avoiding Guardianship Drama

If you’ve been online or watching tv lately, you probably haven’t been able to miss seeing the Guardianship process depicted in popular culture.  Whether you’ve watched the Netflix movie “I Care A Lot” or the recent documentary and press about the Britney Spears conservatorship controversy, it seems that Guardianships are everywhere these days.  It is natural to wonder . . . What is a Guardianship?  What is a Conservatorship?  And, are they safe?

First, an explanation of terminology: Essentially, the terms Guardianship and Conservatorship generally refer to the same thing.  In some states, a Guardian has responsibility for the person while a Conservator handles that person’s financial decisions.  In other states, such as Pennsylvania, a Guardianship covers both the person and the estate.  For the purposes of this article, because we are in Pennsylvania, that is what we will use from here on.

In our practice, we regularly handle Guardianships for Incapacitated Persons.  Most often, these are for an adult with intellectual disabilities, Autism, or related issues.  In addition, we handle Guardianships for an elderly person who no longer has capacity to handle his or her personal or financial affairs.

Many of our Guardianship cases deal with parents who have a child with special needs who is turning 18.  The parents wish to become Guardians of their adult child to protect that individual and help take care of his or her needs.  Similarly, we help adults who have concerns for an elderly parent who may be battling Alzheimers or other neurological conditions which would impair their ability to make decisions in their own best interest.  For that reason, someone such as an adult child, spouse, or other relative or close family friend seeks Guardianship.

In nearly all of these cases, those seeking Guardianship have nothing to gain from the process other than the peace of mind that a loved one is being cared for.

Alternatively, the Guardian-for-hire industry depicted in the new Netflix movie “I Care A Lot” is intended to provide support for those who do not have friends and family in their lives to care for them.  However, depending on the state and county, this arrangement can contain loopholes that would allow for abuse of this system.  

There are steps you can take now to help protect you from this fate.  First, make sure your estate planning documents are in order and up-to-date.  In them, take care to name an individual or individuals that you trust as your Power(s) of Attorney.  Most often, the person named as your POA is the logical one to assume Guardianship should that become necessary.  Next, make sure that your wishes are known by your loved ones.  This may include having frank discussions regarding how you do and don’t want to be cared for in your waning years.  If you have a child or care for a loved one that may need a Guardianship in the future, you should also think about who would be best suited to take over that role and consider how you want your loved one cared for.

Finally, if you believe you or someone you know is being taken advantage of by a Guardian or anyone else, consult an attorney or Elder Services/Disability Services in your County.  The Court system is not perfect but there are ways to intervene if you do not believe the Guardian is acting in the person’s best interests. 

The attorneys at Herr, Potts and Potts can discuss your situation with you and help you decide if a Guardianship would be beneficial in your situation.