Guardianship: It’s an emergency and I care a lot… about your belongings | High Swartz LLP

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I recently watched the 2020 Netflix movie “I care a lotThe story of a court-appointed professional guardian (played by actress Rosamund Pike) who steals the property of dozens of elderly wards. As an estate planning attorney in Pennsylvania, I regularly represent family members, presumed incompetent persons (AIPs), and guardians. And nothing makes my blood boil more than finding out that someone has taken advantage of an elderly or disabled person via guardianship.

Pike’s character Marla Grayson, with the help of a crooked doctor, declared elderly people disabled, that is, unable to take care of themselves. Grayson is appointed legal guardian and then drains the property of his wards for his own benefit. Unfortunately, the exploitation of vulnerable people happens more than we would like to admit.

Is guardianship fraud common?

Well, that doesn’t quite happen according to the movie. Director / screenwriter J Blakeson has taken liberties with legal requirements, but this is no court drama. Plus, Blakeson had to make room for the retired Russian Mafioso subplot (played by my favorite Game of Thrones actor, Peter Dinklage). I’ll leave it there before I give any spoilers.

So how are you appointed legal guardian in Pennsylvania?

A petition must be filed for adjudication of incapacity and for the appointment of a guardian. Under Pennsylvania law, the petitioner “may be anyone interested in the welfare of the person presumed incapable (‘AIP’)”. This is a fairly broad definition and may include family, neighbors, the regional agency on aging, the health care provider, or any other professional with a connection to AIP.

Here, Grayson’s relationship to Dianne Wiest’s IPA character Jennifer Peterson is unclear. Marla does not appear to represent anyone (agency or otherwise) interested in Jennifer’s well-being. By the way, I would challenge the standing position, but where’s the entertainment value in that?

In a real situation, the applicant must prove by clear and convincing evidence to a judge that the AIP is incapable of becoming a guardian. There must be specific findings of cognitive impairment that has impaired the person’s ability to understand information, make reasoned decisions, manage financial resources effectively, or ensure their own physical health and safety.

In the film, Grayson submits a report from the Crooked Doctor (Dr. Amos, played by Alicia Witt) to prove his incapacity. Although permitted by Pennsylvania law, the “clear and compelling” part is ignored in the film. The judge said the court would “let it go” because it was an emergency hearing without considering why the case was an emergency. In PA, an emergency hearing is appropriate when it is evident that the AIP is at imminent risk of irreparable harm, including serious financial abuse, medical risk, or risk of homelessness.

In Pennsylvania, Grayson would also be required to demonstrate that there is no less restrictive alternative to guardianship. For example, does the AIP have a power of attorney? If not, is she able to execute a power of attorney? Does she have support in the community?

Granted, Ms Peterson would say she has the backing of the Russian Mafia to run her affairs, and she seems quite capable of executing a power of attorney. In reality, a guardianship is a last resort because it deprives a person of their legal rights and restricts their rights to autonomy and self-determination.

In Pennsylvania, there are two types of guardians:

  • a personal guardian is responsible for making personal, residential and medical decisions for the PIA.
  • an estate guardian is responsible for financial decisions, income management and property.

So how is a person declared unfit and appointed guardian against their will, without even being in court? Fiction aside, in an emergency hearing, the 20-day notice period is usually waived, but required for the full hearing. The AIP has the right to a lawyer and if he cannot afford one, a lawyer will be appointed by the court. In an emergency hearing, there is usually no time to appoint a lawyer before the full hearing. The AIP is also required to attend the hearing unless there is an affidavit from a physician that the physical or mental health of the AIP would be compromised by attending.

In this movie, it all fits in perfectly with Pike’s game. While we don’t make it to the full hearing in the film, it can be assumed that Pike’s character would manipulate a loophole in the law and have the crooked doctor friend testify that the AIP would suffer mental harm, excusing him legally to participate in the hearing.

One would hope that this judge would follow suit in the Montgomery County Orphan Court in Pennsylvania and appoint an experienced and well-vetted orphan court attorney to represent the AIP. This is the only way to ensure that their voice will be heard by the judge.

How can you avoid guardianship scams like “I Care A Lot”?

Have a comprehensive, well-written estate plan, with financial and health care powers of attorney. Choose your proxy wisely. Make sure it’s someone you trust implicitly, then appoint a backup agent, just in case. While I can’t promise that you won’t find yourself in a guardianship proceeding if you have a power of attorney (your agent could become a thug, fail to act, or die and there is no named backup), the odds are are extremely low if you have the proper documents in place.

You can find “I Care a Lot” on Netflix now.


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