In this episode, we bring you a real-world story of “Ms. H.,” who got a court-appointed stranger guardian instead of her family or her own attorney. This a cautionary tale for anyone who is dragging their feet on getting their planning done.
Why Ms. H. needs a guardian
Ms. H. is a Solo Ager. (For those of you who are new here, a Solo Ager is someone who is getting on in years and is unmarried or has no available immediate family to fulfill traditional roles). Ms. H. prepared her Last Will and Testament ten years ago when she in great health and named me as her executor. Her only family are nieces and nephews, whom she disinherited because they were estranged.
A will is great for after you pass away, but you still should have a plan in place for when you decline and are unable to make your own decisions. As her health slowly deteriorated, I advised Ms. H. to make a trust or power of attorney, but unfortunately, she did not.
Sadly, Ms. H. got to the point where she was no longer able to care for herself and was hospitalized (during COVID lockdowns) for dehydration and malnourishment. She was not eating or drinking enough.
Now that she was in “the system,” she was bounced around among social workers, rehabs, and nursing homes. No one knew where she was until she finally got in touch with me and her estranged niece. I suppose in the end, family does matter no matter what transpired in the past. We then petitioned court to be her guardians (niece as guardian of person and me as guardian of property).
Who became Guardian her person?
The guardian of person has legal authority to make healthcare decisions such as whether to stay in nursing home or try to arrange home care. In this case, moving back home was very important to Ms. H.
Ms. H. asked for her estranged (now reconciled) niece to serve. Unfortunately, the niece very politely declined this large task. She promised to stay in touch, but she did not want the responsibility of making major decisions and doing all the work. A nomination does not mean that someone must accept, so the judge appointed a stranger.
In this case, the stranger was an attorney chosen from a pool of attorneys who do this sort of thing for a living. The attorney had only spoken to Ms. H. once before. Would this attorney fight tooth and nail to get Ms. H. home with an aide, or would she take the easier route of leaving her in the nursing home? I know would want someone who is personally invested in my care.
Who became Guardian her property?
The guardian of property has legal authority over her funds and makes investing and spending decisions.
Ten years ago, Ms. H. asked for me to handle her financial affairs upon her death. So, it makes sense that she asked the court to be the guardian of her property during the final phase of her life.
Again, the judge ignored Ms. H.’s request and handed financial reins to the court appointed stranger. I am not sure why this was the Court’s decision. Sadly, a court-appointed stranger now has full legal control over Ms. H.’s personal care (instead of family) and all her money (instead of her self-selected attorney). This stranger guardian will have to do her best, based on the information she has about Ms. H., even though she did not know Ms. H. or her wishes prior to being appointed.
This is a cautionary tale that if you fail to plan properly, you will be at the mercy of the court should you ever need a guardian for health and finances. I wish we could have gotten Ms. H. the team she wanted during her final phase of life.
I hope Ms. H.’s situation helps motivate someone else to get their estate plan in order. If you want to know how to avoid a scenario like Ms. H.’s, click the link below for a free copy of my book, “The Solo Ager Estate Plan.”