What did they get right? What do you need to know?
In the HBO show Last Week Tonight with John Oliver, the comedian highlighted the widespread problem of abuses by guardians and conservators. Mr. Oliver is a comedian who uses humor to address issues often overlooked or ignored by the media. For those who missed it, here's the video.
The courts appoint guardians to make decisions for people who require assistance due to a disability such a dementia, traumatic brain injury and so on. In Colorado, the courts appoint conservators to make financial decisions for another person. Guardians and conservators may be family members or professionals.
As Mr. Oliver's piece pointed out, guardians and conservators can easily abuse and take advantage of those entrusted to their care. Thankfully, many of these opportunists are criminally prosecuted, including the one featured in Mr. Oliver's segment. In my experience as an elder law attorney, most guardians and conservators are hard-working professionals who could make a lot more money in other industries. These do it for the love of the elderly or disabled, and for every bad apple, there are 50 good ones. However, an increase in oversight is critical to preventing abuses.
Colorado is tackling this challenge in various ways. Courts are using recently hired monitors and requiring criminal and credit background checks for those who want to be guardians. Colorado legislators also are working to adopt a new uniform law that will compel courts and participants to examine more closely which rights an impaired person should retain, like rights to marry or vote. Many dedicated elder law attorneys, professional fiduciaries and affiliated professionals volunteer countless hours to improve the system and protect rights of the elderly and disabled.
Mr. Oliver offered some excellent advice at the end of the segment. With typical hilarity, he featured actors like Lily Tomlin, William Shatner and others to give these suggestions:
• Talk to your loved ones.
Tell the people you trust exactly what you want in the event you can no longer make decisions for yourself. Sharing your wishes can help tremendously if you are ever put in a position where you no longer can speak for yourself. Also, it relieves pressure on the people you love to know they are following your instructions instead of guessing what you may or may not have wanted.
• Sign a power of attorney.
This document legally names an agent to act for you in medical and financial matters. In a power of attorney document, you designate the person you want to make decisions about your health or financial matters if you cannot speak for yourself. Powers of attorney can be done with or without an attorney, and doing one without an attorney is better than doing none at all.
• Weigh the benefits and costs of hiring an attorney.
A good attorney will ensure your power of attorney complies with state laws, so a well-written power of attorney can help save money in the long run. Guardianship and conservatorship proceedings can be expensive, public and consuming. They also can make you vulnerable to the potential abuses mentioned above. By preparing a durable power of attorney in advance, you decide who will make your decisions and, by doing so, you may save your family the stress and expense of a court proceeding.