Your Money & Your Life: guardianship wars as adult children fight to control mom or dad’s person & purse
The following is a piece of fiction. It is a chapter from a book which I am writing about probate litigation. This chapter of money tales deals with guardianships for adults and how adult children from a prior marriage can sue to get control over their parent and their money, and be at legal odds with a parent’s latest spouse.
YOUR MONEY & YOUR LIFE: GUARDIANSHIP WARS TO CONTROL YOUR PERSON AND YOUR PURSE– how your kids and spouse will fight over you and your money in guardianship court
It used to be that your kids didn’t fight over your money until you were dead. No more !Patience may be a virtue, but it takes a holiday when money is on the line and the trial lawyeris on your iPhone “Contacts”. Here’s how your kids and your second or third spouse will spend thousands to control you and your money, causing you to wonder: “Hey Judge, don’t I have a say in this? ”
Congratulations. More than ever before, Americans have a greater likelihood that we will beincapacitated before we die. Actually, and this should be good news: our life expectancies are increasing. And while our bodies do a decent job of advancing through our golden years, our minds are sometimes left behind.
We slow down. We are not as sharp. We’re not always able to handle things like we used to be able to handle things. That’s part of the aging process. It doesn’t mean that at a certain age we’re going to become totally incompetent or incapacitated, although that’s a distinct possibility. What it does mean is that we may need a little assistance from time to time with certain matters.
We may need assistance with our finances. We may need somebody to prepare and file our taxes for us. To invest our money, to budget our spending habits, and manage our finances.As we age, many of us voluntarily give up the choice of driving at night when it’s more difficult to see, while others give up their driver’s license altogether. But aging is more about eyesight and physical abilities: it’s also about cognitive skills. Our ability to reason, analyze, to be free from interference, to understand, ask questions, and comprehend. Dementia is ugly if unchecked and progressing.
The process of getting there, of needing a little assistance with matters, is not always clearly marked. We may or may not realize that we need assistance or that we’re slowing down. And others, our friends or family, may likewise not realize whether we need assistance or not.
………………………
Alvin heard the doorbell rang, which was, in and of itself, a good thing. His hearing wasn’t completely gone, he thought to himself as he walked towards the front door. His wife, Emma, was at the club playing bridge this morning with friends. Emma and Alan had just celebrated their 40th wedding anniversary at the club. A second marriage for both. The party was packed with their friends, but sadly neither of their children, from previous marriages, were able to make it, much to their disappointment.
Alvin opened the door and saw a stranger dressed in an untucked shirt and blue jeans standing there holding papers in his right hand.
“Alvin Goldblatt?” The stranger asked.
“Yes, may I help you?”
“Mr. Goldblatt, I’m a process server and I was hired to serve you with this summons and this petition. It’s a lawsuit. I need you to please initial the front page, acknowledging receipt of this. It doesn’t mean you agree to anything else. It just means that I gave it to you on this day and time. In fact I’m going to initial the front page as well, and write the date and time and also take a picture with my cell phone so I have an accurate record of exactly when I gave this to you.”
“I’m being sued? Is this about the fender bender in the parking lot at the club?”
“I honestly don’t know. I just serve the complaints, I don’t read them. You should read it. You have 20 days to file an answer and you should definitely get a lawyer.”
“I’ll call my son Josh, he’ll know what to do” Alvin thought.
Alvin took the summons and the 20 page complaint from the stranger, closed the door, turned around and walked back inside. He sat down on the sofa and started to flip through the pages, ready to call his son Josh, when he stopped.
Alvin wasn’t going to call his son Josh after all.
It was his son Josh who just sued him.
………………………………….
“There will be four people who will be calling you and coming by to see you, Al” his estate planning attorney began. Three of them will be members of what’s called an examining committee. These are the people who will be making a judgment call, a determination, about your capacity, whether you are able to handle your affairs or not. They’ll be rendering written reports to the probate court, and giving the probate judge an opinion as to what rights they believe you should maintain, and which rights you are able to exercise, versus which ones you shouldn’t or can’t. One or more of them may be doctors, and others may be psychologists without a medical degree. In short, they will tell the probate court whether you areincapacitated or not, and if so, to what degree, and whether a formal guardianship should be established.
In addition to the examining committee contacting you, an attorney will be getting in touch with you. Every time a guardianship case is filed, the court will appoint an attorney to look out for your best interests. To protect you. He or she will want to meet with you in private, without me, and probably without Emma. It will be his or her role to advocate on your behalf.”
“You are my attorney.” Al started. “What the hell do I need another attorney for? And do I really have to speak with this examining committee?”
“Yes, Al.”
“So what the hell is really going on?” Al asked.
“I knew that your son Josh didn’t get along with Emma” his attorney started “but even I didn’t see it coming to this.”
“Spit it out………….. please” Al pleaded to his attorney.
“Josh, for lack of a better term, has sued both you, and Emma. Three times. Josh filed apetition to determine incapacity, where Josh is asking the court to make a determination that you are not capable of handling your personal affairs or your property. Hand-in-hand, he also filed a petition for the appointment of a guardian. In this petition, he asks the court to appoint him to be your guardian — to make your personal decisions for you and to manage all your money and property, all your financial affairs. Lastly, he sued you as trustee of your revocable trust and Emma. Josh is claiming that Emma either took money from you or that she unduly influenced you — convinced you to give her money.”
“I gave her that money. I wanted her to have it. Why do they have to drag her in? If they wanted more money, they should have asked me! I’ve always been so good to them.”
“Who’s ‘they’ Al?” asked his attorney. “Who’s ‘them’?”
“It’s Josh’s wife. She’s the one who is really behind this.”
“I believe it. Many times, it’s not the son or the daughter who is suing– it’s the son-in-law or daughter-in-law, the girlfriend or lover. The one who doesn’t have the money is the one who is yelling the loudest, trying to control the money that is not even theirs” the attorney explained.
“So….?”
“This is serious stuff Al. Incapacity hearing, a guardianship hearing. These are full-blown trials. The good news is that courts and judges take guardianships of senior citizens very seriously. Courts know that when your son filed a guardianship action, he is trying to restrict your civil liberties and your most basic human rights. Some or all of the decision making process in your life can be taken away from you and given to someone else. It interferes with your self-determination. Guardianships not only determine who makes decisions for you, but a court appointed guardian will most likely control all your money. He or she will have a say over every last dime you own. Believe me, the court, this judge, knows what Josh is trying to do. What the court doesn’t know yet, is whether Josh is well-intentioned and sincerely looking out for you, or whether he’s just making a grab for power and your money. ”
“I thought you drafted these estate planning documents for me and I named Emma my guardian.”
“I did. And you did. You also signed a power of attorney document, permitting Emma to make all the decisions for you if you are unable to do so. You also executed healthcare documents were you grant Emma the authority to make all personal health care decisions for you.”
“So can’t we just tell the judge this and have him dismiss the case?”
“Well, the short answer is, ‘yes’. Of course, we can. But Josh is taking the position that Emma is not suitable to manage your person or your property because she took money from you. And, there is one other issue. Your revocable trust: while you are the trustee during your lifetime, you name your son Josh as your successor– the alternate trustee if you are not capable of serving. While courts are loathe to create a guardianship if there is a lesser restrictive alternative, such as a revocable trust or power of attorney or someone who can make healthcare decisions, Josh is alleging that all of your documents are invalid, and even if they were valid, that Emma should not be allowed to make decisions for you. You can see that Josh does not want Emma involved in your care or your money. He wants to run things. ”
“How can he do this?” Al asked.
“He’s your son. He’s also named as successor trustee. So he has an interest in your welfare, in your finances. Josh has what we refer to as legal standing to come and make these allegations. But there’s more.”
“What more?”
” Do you remember that trust amendment you signed about six months ago where you left Emma half your estate?”
“Yes” replied Al “we have that prenup but I wanted to give her more.”
“Josh is also saying that that trust amendment was invalid because of your incapacity. He wants to go back to the prior trust document where Emma only gets $50,000, and he inherits everything else.”
“What?….. Are you saying….?” Al stuttered.
“Well, your son wants to turn your estate plan upside down. He’s saying that not only should he take charge of your purse and your person, but that he is going to change your trust, and what you leave to your wife, Emma.”
“This is the height of arrogance and greed ! How un-grateful ! I will amend my trust right now! I want to remove him as trustee and leave him nothing. I want everything going to Emma and my brother.”
“That’s your right Al, and I’ll be happy to help. In fact, it’s probably the most common reaction of parents who are the subject of incapacity hearings or guardianships brought on by one of their estate beneficiaries: they disinherit them right away. Let’s take baby steps, please. I need to prepare you for your meetings with the court appointed counsel, and the examining committee. I also need to get Emma a good lawyer.”
“I’ll pay for her lawyer. I’ll pay to fight him. Let me get my check book. ”
“Well there is another wrinkle there” the attorney continued.
“There’s an order, according to the documents that I have here, that somehow got entered, freezing all your assets. I can file a motion for rehearing and ask the court to set aside the freeze order right away. ”
“Where the hell are we living? Some third world dictatorship? Communist Russia? I pay a lawyer good money to create an estate plan, and one morning my son is seeking to change my estate plan, he’s frozen my money, he wants to control my money, and ruin my life and my wife’s life?”
“He’s trying Al. He’s trying.”
“I want to fight him! And I want him disinherited.”
“That’s fine, Al” the attorney began “but I want you going in with your eyes open. I’m all for fighting Josh. Josh is a bad son. What he’s done to you and Emma is despicable. I will get you your day in court. You will have more than just a fair hearing. And you will do great. Your instinct, and my instinct, is to fight Josh. But my experience says that Josh is going to try to fight you where you’re most vulnerable. He’s going to threaten you with never seeing your grandchildren again.”
“How did I raise such a son? ”
“It’s okay Al. I’m here to help you. I’ll get you through this. Besides, I’ve got a few legal tricks up my sleeve that Josh hasn’t seen………which will bite him in the ass.”