A Story of Guardianship (and How to Avoid It)
By Peter Strauss, J.D.
Britney Spears, one of America’s most successful young pop stars, was 26 when her father commenced a guardianship proceeding in California (called a “conservatorship” in California) and obtained almost total control over her life and finances. While his powers over Britney, now 39, have been modified over the years by the court, she is still under his control to a great extent. A national movement of Britney’s fans, “Free Britney,” has been partly responsible for the sing of the restrictions on her life.
But this article is not about Britney or the recent movie, “I Care a Lot,” a story about how a court appointed “professional” guardian financially abused several alleged incapacitated persons. This article is about guardianships, why they may become necessary, the good and bad about them and what to do to avoid being adjudicated as an “incapacitated person” and being controlled by a guardian who may not be a person of your choice.
The Imperative: Plan Ahead to Protect Your Independence
As we say on my law firm’s website, “Life Happens,” and we point out that life’s “happenings” are not always good. Illness and accidents can happen to any one of us — old or young — and result in incapacity where persons are unable to manage financial affairs or personal needs, including making health care decisions. As attorneys, we urge our clients to engage in future planning to create legal documents which will empower persons of their choice to make financial and personal decisions for them in case one day they lose the capacity to act for themselves. Individuals can appoint agents to manage their property (usually under a power of attorney or as trustee of a “living trust “) or make health care decisions as agent under a health care proxy, guided by the person’s instructions and wishes set forth in a health care declaration (“living will”) and discussions with the agent.
But suppose a person does not have these “advance directives” and can no longer speak for themselves?
The Consequences of Not Planning
In these cases, there may be a court intervention by Guardianship. Someone — perhaps a family member or a government agency such as Adult Protective Services — commences a court proceeding to appoint a guardian (called Conservatorship in some states) for that person. In effect, a court appoints an “agent” to manage the life of the now incapacitated person. Guardianship is the default remedy for persons who do not do “future planning.” And that state-created system is often not be the best solution. Let’s look at why.
The Good and the Bad About Guardianship
A guardianship proceeding is a process that seeks to balance two competing interests — autonomy versus paternalism: the right of the family, friends or government agencies to seek to benefit the “alleged incapacitated person” (AIP) by seeking a guardian to take over — an act of paternalism, versus the right of the AIP to independence and autonomy. The law is clear. People have a right to make bad decisions, even if death may result, provided they have capacity, i.e., the ability to understand the consequences of such decision.
So, the spouse, child or other family member or Adult Protective Services who files the “petition” asking a court to declare the person who needs assistance in managing finances and making health care decisions has a heavy burden to prove that the AIP needs a guardian because she or he is in fact incapacitated. There must be “clear and convincing” evidence of the inability to function, and in New York, medical testimony about the AIP is not allowed because of the patient-physician privilege. There will be a court hearing (really a trial). The proceeding is public. The judge assigned to the case must appoint a “court evaluator,” in effect a court investigator who is charged with investigating whether a guardian is necessary. A lawyer for the AIP may also be appointed. That lawyer’s duty is to protect the rights of the AIP and who may oppose the appointment of a guardian, which often happens when the AIP objects. The New York guardianship law requires vigorous protection of the rights of the AIP, and sometimes the AIP wins.
Even if a guardian is appointed, the petitioning family member may not be who the court appoints as guardian and the person appointed may not be the person the AIP would have chosen. The person appointed may not be experienced or caring. The choice of the guardian and the extent of the powers granted to the guardian is up to the judge. That includes where the now adjudged “incapacitated person” may reside.
There is ongoing court involvement and review. There are annual financial accountings to file. They are reviewed by an ”examiner” appointed by the court. Lifelong supervision by the court system. And delays, endless delays when action is needed because of overworked judges and insufficient court staff. And the process can be expensive and not all legal fees will be reimbursed from the assets of the incapacitated person. Not good.
End of Life Decisions
And, finally, perhaps the most important issue of all: who makes decisions concerning medical treatment at the end of life. In most guardianship cases there are no advance directives, no health care proxy and/or health care declaration. There may be health care advance directives and the court may leave them in place even if a guardian is appointed for a now incapacitated person, if capacity existed when the documents were signed, particularly if the person appointed as guardian is the agent under the advance directives. But if the guardian is granted health care decision making powers it is likely that she or he will need to seek court approval of a decision to withhold or withdraw life sustaining treatment.
I have certainly not been able in this brief article to discuss all of the issues surrounding guardianship proceedings. Not all guardianships are inappropriate. Many are necessary: if there are no advance directives or the acting agents are breaching their legal obligations or have died or become incapacitated themselves. The courts do the best they can to balance the need for intervention and protection of constitutional rights. My goal here has been, nevertheless, to demonstrate that it is extremely important for individuals to build their own system for decision making by adopting property and health care advance directives, thus better maintaining individual autonomy and control and avoiding guardianship even when incapacity occurs. Britney didn’t do that. But you can.
Your written directions will speak for you when you cannot.
THE BASIC ADVANCE DIRECTIVES
Advance directives commonly used include:
Health Care Proxy: Also called in some states a durable power of attorney for health care, the health care proxy (HCP) allows you to designate an agent in advance to make decisions on your behalf if you later become incapacitated. The proxy form designates someone else to ensure that the wishes you have expressed — in your health care declaration (HCD) (often referred to as a “living will”or otherwise — are carried out, and to make health care determinations on your behalf, if you’re not capable or don’t have a HCD, or for things not anticipated in your HCD . The health care proxy is sometimes combined with a HCD , but it is our practice at Pierro, Connor & Strauss to combine the two tools in one “combined” instrument along with HIPAA release section.
Health Care Declaration (“Living will”): The health care declaration states your desires concerning future medical care, specifying what procedures you want or don’t want. These are sometimes called health care directives, medical directives, or instructional directives. We use the expression health care directive because that’s a more descriptive term for what it is.
Medical Order about Life Sustaining Treatment (MOLST): The MOLST is a form authorized by state law in several states prepared by a physician (or nurse practitioner or physician assistant) working with the patient, usually in a hospital setting for a patient who is terminally ill. It is a detailed form — almost a chart — of the patient’s wishes about very specific treatments and procedures. Because it is a clinician’s order and is in the patient’s chart, it is more likely to be followed in the hospital setting and may in some cases minimize the issue of compliance with patient’s wishes. The MOLST document, kept in the patient’s chart, does not replace the health care declaration or health care proxy but supplements them. It can also guide the health care agent’s decision if she or he is not sure of the maker’s wishes, just as the health care declaration does.
Do Not Resuscitate Order (DNR): A physician’s (or nurse practitioner’s) instruction stating do not resuscitate if the patient’s heart or breathing stops. It is a form signed by a patient who has capacity or can be signed by the health care agent when the patient lacks capacity to give informed consent. A DNR order can be executed outside of the hospital or can be signed in the hospital at admission or during a procedure.
Peter J. Strauss, JD, practices trusts and estate law and has a special interest in issues involving the rights of persons with respect to health care treatment at the end of life. He has been included in The Best Lawyers in America (2007 to 2014) and in New York Super Lawyers — Metro Edition (2007 to 2015). Best Lawyers named him “New York City Elder Law Lawyer of the Year” for 2012. Peter is Distinguished Adjunct Professor of Law at New York Law School, and director of the Guardianship Clinic, which he founded in 2003. He also serves as a member of the Board of Directors for End of Life Choices New York. He has written articles for many professional publications, including the New York Law Journal. Peter earned his J.D. from New York University School of Law and his bachelor’s degree, with honors, from Bowdoin College.