Patti's Blog - Advocate for Elders, People with Disabilities and Their Families

Guardian training offered for free

Excerpt from Oakland Press: (click for entire article)

Oakland County officials predict that in 10 years, one in four people in the county will be a senior citizen.  As the population of older adults continues to grow, the need for guardians and conservators is also expected to increase. People who are or expect to become a guardian or conservator are invited to receive free training.

A basic training session for conservators -- someone appointed by the court to manage a protected person's assets -- will be from 11:30 a.m. to 1 p.m. Aug. 4 in courtroom W3, which is in the west wing extension of the Oakland County courthouse at 1200 N. Telegraph Road in Pontiac. The session will be led by attorney Michael J. Hughes.

In the second seminar, attorney Thomas B. Fraser will provide information about acting as a guardian for adults from 11:30 a.m. to 12:30 p.m. Aug. 11 in courtroom W3. A guardian is someone who is appointed by a judge to be in charge of another person's placement, medical and other personal decisions.

Legal advice about individual situations will not be offered during the seminars, but participants will learn about court procedures and how to complete and submit probate court forms.  "It's a very valuable resource," said Jill Koney Daly, probate register.

Dementia, Guardianship and Avoiding Guardianship

Excerpt from Elder Law Answers: (click for entire article)

Advanced age, unfortunately, is often accompanied by dementia, whether from Alzheimer’s disease, strokes, small and large, or any of a number of other illnesses. By some measures, half of those over 85 suffer from dementia. The more severe the dementia, the more assistance seniors need getting through the day.

Seniors with dementia can also be at great physical and financial risk due to their own bad decisions and their susceptibility to abuse, again either physical or financial. Depending on the situation, protecting seniors with cognitive impairment, as well as those around them, can be difficult.

What can family members do when a parent should stop driving, but refuses to do so? What if they respond to every telephone solicitation that comes their way? What if they refuse help in the house or resist moving to an assisted living facility?

In many instances, seniors can be cajoled to do what’s best for them. But not always. In such cases, there is the legal remedy of guardianship. Unfortunately, as we shall see, the law can be a blunt instrument.

Every American has the right to determine where she will live, who can come into her home, and how she will spend her money. This personal autonomy can only be taken away by a court determination that an individual is so impaired that she will be injured unless someone is appointed to step into her shoes and make decisions for her.

Elder Law – Alternatives to Guardianship

Excerpt from Appellate Attorney: (click for entire article)

In a previous article, we presented an overview of two different types of conservatorships that are in California. This current article examines possible alternatives to avoid the need to establish a guardianship.

If an elder is mentally incompetent and unable to handle their own financial affairs, then someone else given the power to perform this task. If no power of attorney for financial matters, there is then the court in guardianship proceedings,someone will be appointed who have authority. Such guardianship of the estate is a long and sometimes costly process.

A power of attorney for financial management can avoid the need for a guardianship over an older legacy has taken root. When executed, the older of sufficient mental capacity to such a document, then their representative will have the necessary authority, without asking that the court's permission.

Such powers have been referred to as"License to Steal" and may only be used to protect the elder's financial well-being.

Similarly, a valid power of attorney (for health care decision-making in California as an Advance Health Care Directive) may have an alternative, to establish a guardianship of the person. When an elderly and very ill not be able to make sound medical decisions, then the attorney is the agent issued the legal authority to do so. Again, no courtIntervention is required.

A revocable trust is also part of the available alternatives to guardianship. The older of the assets that are owned by the trust, can a successor trustee – a person appointed by the elderly to care trusts, if the elderly are administered to manage, mentally or physically disabled.

Dallas woman fights for control after bank asks court to appoint guardian

Excerpt from Dallas Morning News: (click for entire article)

Michelle Cohen is petrified about her upcoming court hearing. For weeks, she's been frantically calling attorneys in hopes of preventing a decision she fears will change her life.

A bank is asking a court to appoint a guardian for Cohen, who is mentally ill and who has a trust fund at the bank. But what Cohen wants is to be left alone. To live how and where she pleases. To spend her trust fund money on whatever she wants. To be like other people – those without a mental illness.

"I'm fully competent to handle my own affairs," said Cohen, a Dallas resident who turns 41 this month. "Nothing good will happen if I have a guardian. I'll probably wind up in a group home. I have a lot to fear about that."

Cohen's situation exemplifies the tug of war that exists between letting people with mental illness live independent lives, while also trying to protect them. Her case came to the attention of DMN Problem Solver after she contacted the newspaper.

California Court Throws Out Octomom Guardianship Case

Patti's Comments:  I think this case would be treated differently if she was independently wealthy and not on governmental assistance to begin with.

Excerpt from The Probate Lawyer Blog: (click for entire article)

It's the Octomom vs. celebrity attorney Gloria Allred!  Battling in the California Court of Appeals over the rights of a stranger to intercede to protect children whom he's never met, just because they're on TV.  Well, and because there are 8 babies, plus 6 other kids, and a mom with no husband and no job.

While Octomom Nadya Suleman has captured the interest of the nation for the mind-blowing number of children she's given birth to in the last few years, her court case has peaked the interest of guardianship attorneys across the country.  Why?  Because it addresses a unique question:  To what lengths should the law allow court intervention to protect children . . . should a complete stranger be able to haul a parent into court?

A few months after Suleman gave birth to her now famous (or infamous) octuplets in January, 2009, a self-proclaimed champion of celebrity children filed a guardianship proceeding seeking to protect the kids.  He asked for an independent guardian to be appointed to oversee the children's finances.  He wanted to make sure they received their fair share of any profits Suleman earns from reality shows and other money from footage and photographs of the family that redefines the phrase "Eight Is Enough!".

Paul Petersen, represented by celebrity California attorney Gloria Allred, filed the legal proceeding under California's law allowing even non-family members to seek protection for the estates of children.  Specifically, the law permits a guardianship filing by "a relative or other person on behalf of the minor" to protect the financial interests of the kids. 

So what does "other person on behalf of the minor" (or in this case, eight little minors) mean?  Does this include a total stranger, who's never met the kids?  We're not talking about a government employee whose job it is to protect kids.  This is just a guy who feels like be helpful . . . or nosy (depending on whom you ask).

The first court that heard the case sided with Petersen and ruled that he could challenge Suleman's fitness to manage her kids' money.  The judge denied Suleman's request to dismiss the case and instead appointed a guardian at litem to investigate and report back to the court.

Suleman filed an appeal.  Her attorneys argued to the Court of Appeals that a stranger shouldn't be permitted to bring a legal proceeding like this one.  Octomom's legal counsel also argued that it was especially improper when the stranger had no evidence of wrongdoing, but instead relied on TV reports and internet articles.

The California Court of Appeals agreed with Suleman, in a published opinion released a few days ago.  You can read the opinion by downloading it here:  Download Suleman Ct of Appeals Opinion. 

Probate Court determines guardianship

Excerpt from The Oakland Press: (click for entire article)

Concerned families and friends often consider guardianship proceedings to provide care for a child who can not live with parents. Guardianships are generally handled in Probate Court.

In Oakland County, approximately one-half of our minor guardians are grandparents.

There are two types of probate minor guardianships: “limited” and “full.” A limited guardianship is filed by the parents. The parents sign the Petition for Appointment of Limited Guardian of a Minor and also file a Limited Guardianship Placement Plan. The Plan is signed by the proposed guardian(s) so that visitation and support are agreed upon by the parents and the limited guardians. The statute spells out the reasons the parent cannot maintain custody and why a guardianship is needed.