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February 25, 2021
“I Care a Lot” is a new, well-rated movie on Netflix. It is creepy but entertaining, and it also highlights the need for seniors to be aware of potential financial scams — in this case, scams of abusive guardianship.
The film, part comedy, part horrifying thriller, follows what happens when a long-term con artist targets the wrong mark. What’s the con? Marla Grayson, played by Rosamund Pilke, exploits the legal system to become a court-appointed guardian for elderly people and then seizes their assets for her own wealth.
While the story is fiction, the scam of predatory guardianship is well documented and very real.
A guardian — also sometimes called a conservator — is someone the court appoints to care for a person who can no longer care for themselves, usually due to diminished mental capacity from aging.
Guardians have almost complete power. They decide where the ward lives, how money is spent and invested, who can see the ward, medical decisions, and more.
According to Cornell Law School, “Guardians have a duty to act in their wards’ best interests.” However, the school’s guidelines also state that “They have no duty to respect their wards’ wishes. They have complete control over their wards’ finances, property, and care.”
Claude Pepper, a former congressman from Florida, once called guardianship “the most punitive civil penalty that can be levied against an American citizen, with the exception, of course, of the death penalty.”
Other people have said that “being a ward is worse than being in prison because at least in prison, you have rights.”
Predatory guardianship is when a guardian exploits their ward for their own financial interest — which you can imagine is not very difficult given the guardianship relationship.
Unfortunately, good data does not exist. Guardians are regulated by state and local statutes which makes collecting information about the system and possible abuses difficult to aggregate. Guardianship.org, in a letter to a Congressional Special Committee on aging, estimated that in 2018, there were between 1 and 3 million adults under the care of guardians. And, they also estimated that guardians control hundreds of billions in assets.
So, it is potentially a very big problem. Pilke is quoted in the movie’s press notes as saying, “I hope the film will bring to light the fact that we should all be more prepared for getting older. ”
Keep reading to find out how to protect yourself.
According to LegalZoom, “powers of attorney (POA) authorize someone else to handle certain matters, such as finances or health care, on your behalf. If a power of attorney is durable, it remains in effect if you become incapacitated, such as due to illness or an accident.”
By having a durable power of attorney, you are controlling — instead of the courts — who will make decisions on your behalf, should something unfortunate happen.
Here are 9 tips for these documents:
A general durable power of attorney enables someone to act and make legal and financial decisions for you if you are incapacitated in any way.
A general durable power of attorney would cover: buying and selling property, paying bills, managing investments, filing tax returns, applying for government benefits, and other legal and financial matters
You can create this document yourself, use an online service, or a lawyer.
Here are some online resources:
Here are some ways to search for an accredited lawyer:
The durable power of attorney for medical care is also called an “advance directive.” This document empowers someone to act and make all medical decisions for you if you are incapacitated. This person will also be able to access your medical records, talk to doctors about your condition and care, make decisions about hospitalization, tests, treatments, the need for a nursing home, and end-of-life choices.
In addition to lawyers, Nolo, Rocketlawyer, and Legalzoom, there are some free or low-cost resources for creating an advance directive:
This should probably go without saying, but think through who you want to appoint as your agents. You want someone who will take the time to understand your wishes and be able to make good decisions on your behalf — no matter what might occur in the future.
It is not uncommon for people to appoint different persons to act as agents for their power of attorney and their medical power of attorney.
Different family members have different qualifications and relationships with you. Choose the appropriate person for each job.
You need to trust your agents, but it is okay to also want to have a mechanism in place to verify that your wishes are being upheld. “Trust but verify” so they say.
You can ask or require that your agents report an accounting or medical update to a third person you trust at regular intervals. And, have a lawyer have processes in place for discrepancies or disagreements.
As part of your estate plan, you will want to document every tidbit of financial and legal information you have. You need to provide information on: the whereabouts of all your important documents, a list of all accounts, account numbers and passwords if applicable, insurance policies, retirement benefit summaries, all regular bills and utilities, and contact information for any advisors you might have.
The list will likely be long, but you will want your agent to have access to everything they will need.
Your medical agent will want contact information for your doctors, to know what prescriptions and supplements you are currently taking, and any known diseases or conditions.
You never know what is going to happen in life. It is best to be prepared and be prepared now.
No matter your current age, don’t put this off.
It is really important to assess these documents and keep them updated as necessary. Your information may change, your wishes may evolve, or you may become uncomfortable with the agents you have chosen — you can choose a new agent.
Consider an annual or quarterly assessment of your situation.
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