With planning you can bypass the guardianship system
January 1, 2020
I have had a lot to say about the problems with the probate system -- it’s expensive, it takes a long time, it is easy for a disgruntled heir or creditor to hold up the proceedings, it is very public -- and about how to avoid it.
But today I want to talk about another imperfect system. If someone claims that you are not competent to handle your own affairs, the courts have an adult guardianship system to determine whether you need to have someone appointed to handle those affairs for you. This is another system you should try to avoid.
Before I go any further, let me say that this should not be taken as a criticism of the people who work in the system. Most of them -- the lawyers, the judges, the clerks, the social workers -- are good people trying to do their best for people who are in difficult circumstances. But the systems are flawed. Do I have a better system in mind? No, admittedly I don’t. I am not aware of any place where the probate or guardianship systems work really well. All I can do is tell you how to avoid them.
Regarding the Alaska guardianship system, what are the problems? For one thing, it can take months to get a guardian in place. First, various people have to be appointed, such as a court visitor (a social worker who will investigate and put together a report) and an attorney for the respondent (the respondent is the allegedly incapacitated person). After the report is done, which itself takes time, they have a hearing before a magistrate judge. Because a lot of these cases settle, they only schedule these for a half-hour, so if it turns out the case is contested, they have to schedule another hearing; and if it doesn’t get done within the few hours set for the next hearing, it has to be rescheduled for another hearing, and so forth. This can drag on for quite a few months.
The bigger problem, though, is that it can tear families apart. In a contested guardianship, the family members often have to testify about the things that the respondent has done which prove that he or she is not competent. But the respondent is sitting right there in the courtroom, and has to listen to all of this. That can be humiliating, and can turn respondents against their own children. And sometimes there are family members testifying on opposite sides, for instance if one thinks that dad is still capable of managing his own finances, but another does not.
In a way, it reminds me of what happens in child custody disputes in family court. People must often testify about very personal matters. In family court, the child is not usually allowed to hear the testimony; in fact, if a parent brings the child to a hearing, the judge will probably chew the parent out. But in adult guardianship cases the subject of the case -- the respondent -- is entitled to be there in the courtroom. And that means that all of that painful testimony about how mom lost her keys three times over one weekend, or dad couldn’t remember his daughter’s name, or Aunt Ida kept getting fooled by scammers, plays out right in front of mom, or dad, or Aunt Ida.
Is there a way to avoid that, in terms of changing the system? Not really, at least not without seriously violating the respondent’s basic constitutional rights.
But there is a way to avoid that individually, at least in most cases. There
are two fundamental documents which everyone should have as part of their estate plan. One is a durable power of attorney, which names the people you want to handle your financial affairs if you become incompetent. If you have one of those in place, all your family needs is two doctors to sign off that you cannot manage your own affairs.
Second, you should have an advance health care directive (what used to be called a living will) which says who is going to make medical decisions for you, again just if you cannot make them yourself.
With these two documents, the vast majority of adult guardianship cases would never happen. And that would be a very, very good thing.
Kenneth Kirk is an Anchorage estate planning lawyer. Nothing in this article should be taken as legal advice for a specific situation; for specific advice you should consult a professional who can take all the facts into account. A competent one, preferably.