Hey this is Greg McIntyre with McIntyre Elder Law helping seniors protect their assets and legacies. It’s been a long week, and I wanted to wrap it up for you by getting into what I’m really hot on right now, which is Guardianships.
I’m so fired up about this and so I focused this episode on Guardianship Nightmares and how you can avoid them. You just have no idea what you are subjecting yourself and your family to, and your hard earned savings that you worked for your entire life, including your home if you do not plan ahead with some basic documents. I’m telling you right now, guardianships are not good things and are not a good place to be.
If you wind up in a guardianship, all assets are frozen. It is nearly impossible to move them or to help yourself or a family member. So let me tell you what I’m talking about.
Let’s explore what types of guardianships there are.
Guardianship of the Person
Guardianship of the Estate
‘Guardianship of the Person’ means you are able to make healthcare and other legal decisions for someone okay. But that doesn’t mean manage their money.
‘Guardianship of the Estate’ means you can just manage their money but not make those other legal and healthcare decisions for them.
If you are ‘General Guardian’ you can manage their money and you can manage their healthcare and make other legal decisions.
Now some requirements for ‘Guardianship of the Estate’ or ‘General Guardianship’ are, you have to file annual inventories, keep all receipts for everything you do, and hope you are making all the right moves with the expenditure because even though I know the majority of people are acting in good faith taking care of their family members, you can get flagged for some funky stuff, and I’ll go into that in a little while. You should always petition the clerk for anything, any way you need to spend money is just a safe bet. Petition the clerk ahead of time.
I have seen clerks petition and remove a guardian okay. I have seen them petition to remove a guardian, a family member, a trusted family member who loves either their mother or sister or brother to death, and would never do anything wrong with their money but the clerk petitioned to remove them because they paid tithe. Yes you heard me right, because even if the ward has a history of always paying tithe and is so important to them, even if they are a spiritual being and trust me, you’re still a spiritual being after you are found incompetent and in need of a guardian, but if you’re paying tithe, even a minimal amount of tithe, the clerk can make a big deal out of that, like something crazy is going on because you’re contributing to the church. This is even if that person is a really strong part of the church okay, and a really great fixture at that church, it’s unreal and sad. Again I’m fired up about this because I can’t believe this happens in our society. I cannot believe it. You shouldn’t believe it either, and you should be up in arms about it, I’m telling you, because it’s horrible the way the guardianships are run today.
I have seen birthday gifts, small birthday gifts for family members that the ward, this incompetent, this family member who loves their niece or nephew or whoever, and wants to buy a little something for them. So the guardian says okay we’ll buy a little something for this child on their birthday, and you would not believe how much this is blown out of all proportions. It is made out that the guardian who is the family member, has taken advantage of this ward by buying this birthday gift for this person. And you’re hearing me right, these are actual events I have witnessed take place, so you need to be aware of that.
You need to be aware that those are potential problems and issues. And that’s just talking about small things. When you start getting into larger conveyances or expenditures, even if you’re acting in the best interest or you feel like you are acting in the best interest of your mother, dad, sister or brother, son, or daughter that you’re guardian of, you are going to be looked upon almost as the bad guy. You will be under a really harsh eye by clerks at the clerk’s office who are really going to give you a hard time. And I don’t mean a little bit, I mean a hard time. That’s happening in my community, Cleveland County all the time. I am sure this happens across the state in North Carolina. It’s harsh, it takes no prisoners and it can tear up a family and really really call out your reputation as well.
So you want to try to avoid these Guardianship nightmares. You want to stay the heck away from them, and there are easy ways to do that.
You can avoid them by putting in place Powers of Attorney. Now I don’t like short form Powers of Attorney, but let me tell you why I equate powers of attorney with guardianship.
You can put in place ‘General Durable Powers of Attorney’, that’s the same and functions the same as ‘Guardianship of the Estate’, which means you are in charge of the money, and charged with spending it correctly. You still have a fiduciary duty to take care of mom, dad, sister, brother and act in their best interests but you are not under the eye of the state. The state isn’t questioning every move you make which is a huge problem.
For example, let’s say you were in a nursing home, I have seen the state allow a person’s house fall to rot, instead of allowing any money to fix that house up. But they will let the money be spent down every single month, that’s about $5000 to $7000 dollars a month just to the nursing home, so you might as well go write a check for everything you’ve saved your entire life and write it out to the nursing home, and the state feels justified in doing that.
It’s not right, and it’s not okay. I advocate against it every single day. However, a ‘General Durable Power of Attorney’ will help you avoid this situation. It will help keep you out of this situation, and that is what you want, and that is what you need.
Again I’m not a fan of forms because they can easily be modified. Don’t print one off online that would be my advice. Don’t let your entire retirement and assets you saved and worked for your entire life be squandered by putting the state in control of it. Take control, take control now. Put ‘General Durable Powers of Attorney’ in place ahead of time. Ours are 21 to 25 pages for long form ‘Powers of Attorney’ because they really enumerate everything you can do. Our ‘Powers of Attorney’ allow your spouse to make any business decision you can make yourself, so they could just step in. Hell, my wife can’t even modify my cell phone bill because I set it up unless she has a ‘Power of Attorney’ or something like that to do so. It’s the same with Utilities if they’re in the spouse’s name. If you’re aging then go ahead and put your spouse and others on there. Everybody, aging or not, needs to have these in place but you should put multiple people on them.
When Michael Jordan fouls out he needs somebody to come off the bench, so your ‘Attorney in Fact’, the person who is acting as you when you can’t because of a healthcare problem, even if it’s temporary, you know if that person can’t act, you do not want to put the state in place, you just don’t want that. Stay the heck away from that okay. We want to go ahead and put a second person in place, a second trusted family member like a son or daughter. You can go as deep on that bench as you want, 2 or 3 people sitting on the bench ready to come in and fill in for a husband or wife who is your primary ‘Attorney In Fact’.
Now why is that important?
If your primary is suddenly unable to fill in and you have no second, then you are at the mercy of the state. The family would either be stuck and unable to move assets or access accounts, or save their home, or the alternative would be seek guardianship but then the assets are frozen solid.
You’re stuck unless your spouse has a ‘Power of Attorney in place’ and multiple people on them. Let’s say you have early onset Alzheimer’s and you’re in your 60’s to early 70’s, and your wife or husband has a good 20 or 30 years ahead of them. All the money is being spent down, and the spouse is in my office crying because all the money is going away, and you didn’t act ahead of time to put in place the ‘General Durable Power of Attorney’.
I see this situation on a regular weekly basis at least and it’s sad, because then you are looking at a Guardianship to do anything, and the state is going to lock it down. They have no mercy, they do not care that you are going to be destitute if all this money is spent down. That’s where you need the ‘General Durable Power of Attorney’, so let’s put those in place ahead of time. It’s very important.
‘Healthcare Powers of Attorney’ will replace ‘Guardianship of the Person’. Now ‘Guardianship of the Person’ is where you are going to have a court proceeding where a family member will be appointed to make healthcare decisions for you. That isn’t so burdensome and over governed okay. That’s a little more reasonable and gives you a little more leeway to make healthcare decisions, legal decisions in the best interests of the ward.
I like to appoint a quarterback. I look at the huddle as being the family. The quarterback goes and meets up with the family and says hey look, Mom’s in this situation where she needs this healthcare procedure, there is a couple of options here for the procedure, what should we do, let’s take a consensus, let’s work this out. One person is going back to the doctor. Only one. Don’t have the sister or brother flying in from another state, that haven’t seen you for 20 years and all of a sudden they have a different idea of how to care for your mom, and the family has been doing that for the last 5 years okay.
Appoint one person because who is the healthcare facility supposed to listen to? Which son or daughter trumps the other if there are conflicting opinions about healthcare? There probably will be. It puts the doctors, the facility and the administration and staff of a healthcare facility really at a disadvantage to make life and death decisions for that member, and life saving measures, including just general healthcare.
So you can avoid a Guardianship situation or a ‘General Guardianship’ or ‘Guardianship over the Person’ by putting in place ‘Healthcare Powers of Attorney’ ahead of time. Those should be separate documents from the ‘General Durable Powers of Attorney’. We call it ‘Durable’ by the way because it’s survives incapacity, mental incompetence or mental disease, or disability. So when you really need it, it is going to be active. If it doesn’t have that clause in it, it does not survive mental incapacity, mental disability or mental incompetence. So you want to make sure you have that in place.
In closing, Guardianship nightmares exist. They happen every single day. It’s a cold hard process, it’s a process of law and unless you want your estate eaten up by attorneys fees or just spent into the ground with no choice, and a guardian with no choice of what to do, put those 2 documents in place ahead of time.
I’m Greg McIntyre the Elder Law guy with McIntyre Elder Law, helping seniors protect their assets and legacies. I’m fighting for you every single day, as hard as I can, I guarantee it, just ask my clients. If you need to reach me or talk to me, call me at 704-259-7040.
Have a great weekend.
Call me if you have any questions:
Elder Law Attorney
McIntyre Elder Law
123 W. Marion Street
Shelby, NC 28150