The Netflix movie I Care a Lot provides a dark, violent, and somewhat comedic take on the real-life and not-at-all funny dangers of the legal guardianship system. While the film’s twisting plot may seem far-fetched, it sheds light on the tragic phenomenon that is the abuse of seniors at the hands of crooked “professional” guardians.
Last week in part one of this series, we offered a brief synopsis of the movie, which revolves around Marla Grayson, a crooked professional guardian who makes her living by preying on vulnerable seniors. We then outlined the true events that inspired the fictional account. The film’s writer and director, J. Blakeson, came up with the idea after reading news stories of a similar scam involving a corrupt professional guardianship agency.
In that case, a guardian named April Parks, who owned a company called A Private Professional Guardian, was sentenced to up to 40 years in prison in 2018 after being indicted on more than 200 felonies for using her guardianship status to swindle more than 150 seniors out of their life savings. While I Care a Lot is fictional, the Parks case also inspired the 2018 documentary, The Guardians, directed by award-winning filmmaker Billie Mintz. Mr. Mintz’s film details the terrifying true events that ravaged the Nevada guardianship industry.
In a Facebook post, Mintz praises I Care a Lot as “a perfect introduction to guardianship.” However, he worries that because of the movie’s heavy focus on violence and Russian mobsters, “people won’t believe it’s real.” Mintz does also points out, “I assure you that everything you see about guardianship is true.”
Indeed, while the Parks case is the most famous, similar cases of senior abuse by professional guardians are on the rise. A 2010 report by the Government Accountability Office found hundreds of cases where guardians were involved in the abuse, exploitation, and neglect of seniors. Given the country’s exploding elderly population and our overloaded court system, such abuse will almost certainly become more common.
Additionally, while most of the cases that have made the news have involved the elderly, the fact is that any adult could face court-ordered guardianship if they become incapacitated by illness or injury and haven’t put the proper legal protections in place.
To this end, here in part two, we’re going to explain how you can protect yourself and your loved ones from such abuse by using proactive Wills and Trusts planning.
How It Happens
Should you become incapacitated without any planning in place, your family (or a friend) would have to petition the court in order to be granted guardianship. In most cases, the court would appoint a family member as guardian. However, this isn’t always the case. If you have no living family members, or those you do have are unwilling or unable to serve or deemed unsuitable by the court, a professional guardian would be appointed as your guardian.
In addition to the potential for abuse by professional guardians, if you become incapacitated and your family is forced into court seeking guardianship, they are likely to endure a costly, drawn out, and emotionally taxing process. The legal fees and court costs drain your estate. Further, if your loved ones disagree over who is best suited to serve as your guardian, it could cause a bitter conflict that could tear your family apart and make it less likely that you get the kind of care you want.
In another scenario, should your loved ones disagree about who should be your guardian, the court could decide that naming a relative as your guardian would be too disruptive to your family dynamics. The court would then appoint a professional guardian instead. However, if you have the proper planning vehicles in place, it is unlikely for a guardian to be appointed against your wishes.
A Comprehensive Plan For Incapacity
Should you become incapacitated, a comprehensive incapacity plan would give the individual, or individuals, of your choice the immediate authority to make your medical, financial, and legal decisions. This will be done without the need for court intervention. Moreover, such planning allows you to provide clear guidance about your wishes. This way there is no mistake about how these decisions should be made.
There are several planning vehicles that can go into a comprehensive plan for incapacity. However, a will is not among them. This is because a will only goes into effect upon your death, and then, it merely governs how your assets should be divided, so it would do nothing to protect you in the event of incapacity.
When it comes to creating an incapacity plan, the best bet is to put in place a number of different planning tools rather than a single document. Your plan should include some or all of the following:
- Durable financial power of attorney: This document grants an individual of your choice the authority to make decisions related to the management of your financial and legal affairs.
- Revocable living trust: A living trust transfers control of all assets held by the trust to a person of your choice to be used for your benefit in the event of your incapacity. The trust can include legally binding instructions for how your care should be managed. The document can even spell out specific conditions that must be met for you to be deemed incapacitated.
- Medical power of attorney: A medical power of attorney grants an individual of your choice the legal authority to make decisions about your medical treatment in the event of your incapacity.
- Living will: A living will (sometimes called an advance directive) provides specific guidance about how your medical decisions should be made during your incapacity. In some instances, a medical power of attorney and a living will can be combined in a single document.
However, thing about all of these documents—they are just documents and not guidance for the people you love. If you really want to keep your family and friends out of court, you cannot just rely on documents to do it. These documents should be created by a lawyer who will get to know you, your wishes, and be there for you throughout the many stages of life, plus be there for your family and friends if and when you can’t be.
Communication is Key
In addition to the above planning tools, it is important for your loved ones to be aware of your plan and understand their role in it. As part of our planning process, we hold a family meeting with all of the individuals impacted by your plan where we walk them through your plan and explain what they need to do if something happens to you.
By combining your comprehensive incapacity plan with a team of people who care for you and know exactly what to do in the event tragedy strikes, we can make it virtually impossible for you to be abused by a professional guardian.
Don’t Put It Off
While incapacity from dementia is most common in the elderly, debilitating injury and illness can strike at any point in life. Due to this, all adults 18 and older should have an incapacity plan. Furthermore, planning for incapacity should take place well before any cognitive decline appear since you must be able to clearly express your wishes and consent for the documents to be valid.
In light of this, you should get your own planning handled first, and then discuss the need for planning with your aging parents as soon as possible. From there, you should schedule a Family Wealth Planning Session with us to get a plan started. If you or your senior loved ones already have an incapacity plan, we can review it to make sure it has been properly set up, maintained, and updated because a plan put in place years ago is unlikely to work now.
Once you have a plan in place, make sure to regularly review and update it to reflect life changes, changes in your assets, or changes in your family structure. And if any of the individuals you have named become unable or unwilling to serve for whatever reason, you will need to revise your plan—and we can help with that too.
Retain Control of Your Life and Assets
To avoid the loss of autonomy, family conflict, and potential for abuse that comes with a court-appointed guardianship, we invite you to meet with us as your Personal Family Lawyer®. While there is no way to prevent dementia and other forms of cognitive decline or an unexpected illness or injury, we can put planning tools in place to ensure that you at least have some control over how your life and assets will be managed in the event it ever does occur. Contact us today to schedule your Family Wealth Planning Session.
This article is a service of Levi L. Alexander, Personal Family Lawyer®. We do not just draft documents. We help to ensure you make informed and empowered decisions about life and death, for yourself and the people you love. This is why we offer a Family Wealth Planning Session™. During this session, you will get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session for free.