Why a Guardianship and How to Avoid It
Guardianship and the Netflix Movie I Care a Lot
I Care a Lot: True Story? Or Fiction?
The recent film deals with a worst-case scenario, state-appointed guardianship.
Question: Is the film I Care a Lot based on a true story? Could I end up in an elder abuse situation with a court-appointed guardian as an older adult? Is this something I should worry about?
Answer: While I Care a Lot is not based on a specific true story, the movie’s director has said that it was inspired by real-life guardianship situations that made the news. Its dramatic storyline was created for entertainment purposes, and most court-appointed legal guardians are not corrupt. However, the film does raise some important issues for older adults and their families.
Family Issues Raised by the Movie I Care a Lot
Issue 1: Loss of Independence and Avoiding Financial Types of Elder Abuse
One theme this film touches on is loss of independence, and other is financial abuse. Although the idea of losing independence is troubling to many adults, cognitive decline is often a bigger culprit than villains like the guardian Marla from I Care a Lot. According to a recent Wall Street Journal article, today’s older adults’ biggest financial risk is cognitive decline. Cognitive decline takes away the ability to make sound financial decisions and detect financial scams.
If you want to make sure that your family’s assets are looked over by a caring adult, find a financial advocate you can really trust with your estate before you become incapacitated. This way, you can minimize any trouble stemming from court-ordered guardianships.
Issue 2: Guardianship Systems, Caregiver Psychology, and Lack of Transparency
Another main theme from the movie is how caregivers see themselves. A family caregiver probably won’t see themselves as a villain, but will they feel like a “hero” or a “victim”? What sort of entitlement will they acquire during a long-term caregiving situation? Will family members who are not in charge feel left out of the loop? How will they know if their parent’s or loved one’s best interests are being put first?
Transparency—in legal documents and in communication—is key to creating a positive environment in the case of incapacitation. Cloudy and fraudulent accounting can only take place if caregiving is conducted without open communication about the expectations of all parties involved. Everyone, from caregiver to family members to the incapacitated individual, will benefit from transparency.
Boost communication: Avoid Guardianship with the Help of an Estate Planning Lawyer
Holman Law’s estate planning attorneys can ensure that you create a plan that fosters independence as well as crucial safety nets. Learn more today about creating a sound estate plan that works for you and your family.
All About Legal Guardianship for Adults (and Alternatives to Having a Guardian)
What is a legal guardianship in Texas?
A guardianship is usually defined as a protective legal proceeding for someone who is incapacitated and unable to manage their own affairs. When an elder is incapacitated, a guardianship may be established.
Legal Guardian Definitions
Conservatorship vs. Guardianship
In Texas, a “guardianship” describes the custody relationship for adults, while “conservatorship” is used to define this same relationship with minors. In other states, like California, guardianship is also used to describe court-appointed custody of minors.
Legally Incapacitated Adult
An incapacitated adult is someone no longer able to receive and evaluate information and communicate decisions. This often applies to their ability to make financial decisions or care-related decisions.
(Adult) Ward of the State
A ward of the state is an individual who has been assigned to an independent decision-maker by the state. In I Care a Lot, Jennifer Peterson becomes an adult ward of the state.
A guardian is an independent decision-maker appointed by a court. Some guardians are family members, such as spouses. Others are paid professional guardians, like Marla Grayson in the film I Care a Lot.
The Two Types of Guardianship Granted By a Family Court
Guardian of the Person
A guardian of the person has rights and responsibilities for the care of an incapacitated individual. The guardian’s rights depend on the court order. They might make decisions about some or all of the following:
- where a person lives and who they contact
- what a person eats and whether they drive
- what type of medical care a person receives
Guardian of the Estate
A guardian of the estate has rights and responsibilities for the financial affairs of an incapacitated individual. The kinds of decisions a guardian of the estate can make includes:
- how to pay bills
- how to invest assets
- when to buy or sell property
When is a court-ordered legal guardianship necessary in eldercare?
1. If incapacitated. . .
A guardianship is necessary when an older person is incapacitated and no one else has access to their finances
2. If refusing care. . .
A guardianship is necessary when an older person refuses to receive appropriate care.
3. If vulnerable. . .
A guardianship is necessary when an older person is vulnerable to exploitation.
The above situations mean that a guardianship is necessary—if they are accompanied by a lack of legal documents governing such situations.
Consequences of a Guardianship
Setting up a guardianship can be costly, long, and difficult. This can mean that an incapacitated person will be unable to receive the help they require at the right time. In fact, this process may even mean that the elderly person is in a position of danger or vulnerability until the guardianship can be obtained. Luckily, guardianships can often be avoided.
How to Avoid a Guardianship
There are several alternatives that can be taken to avoid the need for a guardianship. A visit to an estate planning attorney can be an excellent way to set in motion a plan for if or when you or an elderly loved one becomes incapacitated. An estate planning attorney can walk you through all of the necessary legal provisions, provide explanation, and prepare the paperwork to avoid a guardianship.
Consulting and planning with an estate planning attorney will help to ensure that all options are explored and the best possible solution is found. Estate planning attorneys will help take the guesswork out of planning for future care. They can help you put paperwork in place that will protect an older adult’s personal safety and finances.
Estate planning attorneys can help with:
Durable Financial Power of Attorney
By having a financial power of attorney in place, the stress and expense of a guardianship can be avoided. This also gives the elderly person the final say in who will make decisions relating to finances. A durable financial power of attorney names an agent who has the power to act in the place of the senior adult in financial matters. A durable financial power of attorney will stay in effect after the senior adult becomes unable to handle his/her own financial affairs.
Healthcare Power of Attorney
A durable healthcare power of attorney is a document that grants authority to an agent to make healthcare decisions for the person signing the document. Healthcare decisions can include decisions related to facility placement, admittance to a hospital, or choosing and hiring healthcare aides.
A trust can have a triggering mechanism, such as a doctor’s determination of incapacity, for a trustmaker who is serving as trustee for their own trust. If the trustee is determined to be incapacitated, the successor trustee can then assume control of the assets to make sure they are protected.
A living will details a senior’s wishes for end of life medical care. It can include what medical treatments the senior would or would not like to have in specific situations. This is used in conjunction with the durable healthcare power of attorney to allow for the wishes of an incapacitated person to be executed.
Quick Fact #1: What is the difference between a trustee and an agent under a financial power of attorney?
A trustee controls and manages all assets that are held by a trust.
An agent controls and manages assets held individually by the principal.
- An agent under a financial power of attorney may not manage assets held by a trust but may be able to amend the trust if granted specific authority. This authority can be a good thing or a bad thing, depending on the situation.
- A court can remove an agent under a power of attorney more easily than remove a trustee under a trust agreement.
- A trustee’s authority lasts during a settlor’s lifetime as well as upon death; this ensures assets can be managed and distributed without delay or risk of loss.
- An agent’s authority expires upon the death of the principal. Then, the court must appoint an executor or administrator to manage assets owned by the principal individually. This can take months or years and can be expensive.
Quick Fact #2: What is the difference between a guardianship and a power of attorney?
The main difference between a guardianship and power of attorney is that with a power of attorney, you get to choose who acts on your behalf, and in a guardianship proceeding, the court decides who acts on your behalf.
Estate planning can help you create a power of attorney so you can avoid a guardianship.
If you become incapacitated, you’ll need some kind of help with your financial and medical decisions. A legal power of attorney document puts you in control instead the state or court system. Holman Law is ready to help with your power of attorney documents today.
Steven C. Holman
Estate Planning and Elder Law Attorney
I love to spend time with my wife and three children and serving the Dallas Fort Worth community. I provide clients with a wealth of knowledge and experience navigating each individual’s Estate Planning needs including Trusts, Probate, Elder Care Law, and Long Term Care Planning. My law firm specializes in assisting clients with complicated legal forms and qualifying for the maximum Medicaid and Veteran (VA) benefits in Texas.