Power of Attorney v Guardianship

I counsel a lot of people in regard to guardianship and I thought when it came to a disabled child, guardianship was mandatory and it’s not.  There is a law that an outsider needs to be appointed (and report to the court) if a child receives settlement money from a medical malpractice lawsuit.  This is a large sum of money and I don’t know the dollar amount.  Other than that, guardianship is the last resort.

The most common reason for the elderly in guardianship is the lack of planning on their part.  They may get sick and their loved ones need access to their money to pay their bills or they just didn’t think about writing a will until later in life. Unfortunately, this opens the door for unscrupulous lawyers who financially plan the elders’ entire estate so they inherit.  These attorneys trap the elder in guardianship then find excuses to petition the court pretending to earn their clients’ money.  Everything is fake; the will, the trust, the Power of Attorney, etc.  These attorneys never had any intention of allowing the families to inherit.

The most common reason a young adult is in guardianship is probably drug abuse as in Brittney Spears case.  And that poor young lady is just going through the motions of her life as her attorney racks up 900K in legal fees each year hoping the conservatorship never ends.

In regard to a minor, guardianship can be avoided by setting up a Power of Attorney (over health and medical) or Representative Payee.  These should be discussed with an attorney and if that attorney talks about guardianship, find another.  Obviously, the more unpaid people in your child’s life, the better.

In guardianship, you have to go to court once a year, report to the judges, pay an attorney and all that money is better spent helping your child build a life addressing their personal needs.  The attorney who suggested Guardianship is addressing their personal needs of getting paid for the lifetime of your child.  Any expense to a law firm, care manager, guardian ad litem, private paid guardian, etc., is taking away from your child and allowing them live a fulfilled and happy life.  You also may have to hire an attorney to represent you which is very expensive and less money you can leave to your child/children when you pass away.

Not only that, you give your power away in guardianship.  With a Power of Attorney over health and finances, you make the decisions.  You say no and it’s no.  If you’re Guardian, you have to ask the judge’s permission.  This is probably the most difficult aspect when I’m court watching or counseling someone who has a child in guardianship.  They don’t understand why they have to ask a judge and say, “I’m their parent.”  Biologically but legally the judge is their mother and father.  The parent gave their rights away and can only make suggestions in regard to their child’s care but if the judge doesn’t like what’s suggested, they can refuse.  

Sadly, this opens the door to abuse from doctors, nursing home employees, bank trustees or anyone else who doesn’t think you know what’s best for your child and wants to report you to the judge.  So, there is an enormous difference between saying that you’re Power of Attorney or merely your child’s Guardian.  Everyone knows the Guardian has to ask the judge permission.  The parent who is coerced into putting their child in Guardianship is the last to find out how little control they have over their own child’s life.  The attorney who suggested guardianship looks forward to the fights and hassles (even instigates them) so they can go to court in order to get paid since profit is the name of the game.  A lot of times the doctors, nursing homes, guardian ad litems and so on know each other and cause problems so they can all get paid at the expense of your child.  This is a painful reality.

You also need to think of things from the judges’ perspective if you opt to put your child in Guardianship.  You’re asking them to step in, make decisions for you because you’re not capable of managing your child’s affairs alone.  That’s how they see you and some parents are angry that the judge is involved in their lives when they were the ones who invited them in.

Therefore, if you have a disabled child, you do NOT have to put them in guardianship at the age of 18.  Medical Power of Attorney and Representative Payee is enough.  I haven’t met a good parent yet that is happy about being duped into putting their child in guardianship or having to pay the attorney fees that come with the deception.  Quite the contrary, they make it a point to get the attorney involved as little as possible.  I also have the misfortune of meeting parents after they’ve been misled and the guilt of what they did to their child overwhelms them.  If they had POA, they could make medical, financial and living decisions in order to get their child out of harms way but instead have to take it to court while their child puts up with the abuse.  In some cases, doctors’ order medication that a parent knows isn’t healthy and gets into power struggles with them that they have to take into court.  In other words, Guardianship means power struggles with everyone which the attorney loves since they get paid.

I can tell you horror stories about the dishonest ways elder law attorneys profit using our most vulnerable citizens’.  They have no shame and somehow believe that they’re doing their clients a favor by financially exploiting them.

Lastly, there are some people that opt for guardianship because they can’t make decisions and need a lot of hand holding.  I’m sure there are other reasons guardianship is necessary and it’s probable that the disabled person will be in guardianship with a stranger at some point in their life.  Parents hope that they can find someone honest that will treat their child as their own family member but we live in a society that preys on the weak and vulnerable.  It’s sad.

Guardianship is the last resort.  Alarm bells should go off if it’s mentioned by your attorney.  As a loving parent, you want what's least restrictive and least expensive to give your child the most opportunities and the happiest life.  I genuinely feel badly that you were mislead into believing you were doing the best for your child, loved one, parent, aunt, etc., when a “trusted attorney” or “trusted friend” betrayed you into Guardianship.  Educating each other or trying to stop it from happening to someone else is the only way we’re going to get this to end.