Guardianship, Hippos, and #notallfoxes: Thoughts from John Oliver (and Others)

Sitting in my office this week, I had the opportunity to watch a clip from HBO's Last Week Tonight with John Oliver. He provided an explanation of how guardianship works, with a frank discussion of the possible scary implications. Of course, being a comedian, he did this in a most hilarious manner. (I genuinely disrupted the work of others in my office by laughing so loudly.) Oliver ended with a public service announcement by William Shatner, Lily Tomlin, and others who explained steps you can take to avoid the guardianship.

When Guardianship Goes Badly

The show focuses on the abuses of a professional guardian in Las Vegas, April Parks. She is clearly at the far end of guardianship exploitation and is currently facing prosecution on more than 200 charges. But Oliver does a good job of explaining how guardianship takes away rights without providing oversight of the people appointed to handle personal and financial decisions for people who can no longer make decisions for themselves.

Oliver explains how courts do not have the resources necessary to provide proper oversight, reporting that only 12 states (including Florida and Texas) certify professional guardians. In addition, according to an investigation by the Government Accountability Office, many states don't even do credit or criminal background checks on candidates for guardianship.

How Guardianship Should Work

Nevertheless, the reality is that guardianship (called conservatorship in some other states) actually works in most cases. Family members seek the legal authority they need to make personal, financial, and legal decisions for loved ones who have lost the capacity to do so for themselves. In many cases, these non-professional guardians don't follow through with the court reporting required by law, not because they have anything to hide but because they don't know that they have the obligation or don't know how to provide the reporting. More robust follow up by the probate court could seek to enforce the reporting rules, but also could result in much more red tape without much more protection for the people under guardianship or conservatorship.

An Even Better Plan: Avoid the Need for Guardianship

In any event, the best approach is to avoid the need for guardianship by putting durable powers of attorney and health care surrogate designations in place ahead of time when you can choose whom you would like to make decisions for you when necessary. Even if you're not at risk of exploitation because your children or grandchildren would step in, the need for court intervention causes otherwise unnecessary expense and delay.

This is what estate planners counsel their clients all the time. But William Shatner, Lily Tomlin, Rita Moreno, Fred Willard, and Cloris Leachman do it so much better. With some side discussions about hippos, they recommend executing a durable power of attorney and health care surrogate designation (also called a health care proxy by some) naming someone you trust to make decisions for you if you can't for yourself. They all agree that the person they most trust for this role is Tom Hanks.

Use a Knowledgeable Attorney

But here's the key point: in Florida, if your durable power of attorney is not handled by an attorney who is familiar with the specifically enumerated powers as provided for under the Florida statutes (McCreary Law Office likes to call them "Super Powers"), then your effort might be worthless. An incompetent durable power of attorney leaves the agent without necessary power when it comes time to do things such as qualify for financial assistance for care in a skilled nursing facility. Yes, you may save a few hundred dollars by trying to do this yourself (or with someone who doesn't focus her practice in this area), but if it's done incorrectly, it can easily cost you thousands of dollars later.

To watch the clip from the show, click here. (Warning: The clip contains profanity.)

Attorney Jana McCreary

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Houston Estate Planning and Elder Law Attorney Jana R. McCreary has been an attorney for over seventeen years, a career move she made after working for over a decade with adults and children with intellectual disabilities and mental illness. Graduati… Read More

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