I don’t know if other types of attorneys have to spend as much time explaining why it’s a bad deal to have to go through a court case. It’s probably obvious to the clients of criminal defense lawyers that it would be bad if they got caught and had to go to court. Likewise with divorce lawyers and personal injury lawyers. Businesspeople don’t generally need to be told that they should try to avoid going to court.
And usually, I’m explaining why you should want to avoid probate court. But today, I want to talk about another kind of case to avoid: adult guardianship.
First, I need to clarify some language. In Alaska, a guardian makes all the decisions the person could otherwise make, such as medical and housing decisions, and also manages their finances. If they are only managing that person’s finances, and not other parts of their life, then they’re called a conservator. In some states they use these terms differently. For instance, in California they don’t have guardians for adults, only for children, so anyone appointed to make decisions for an adult is called a conservator.
But in Alaska, it’s conservator if you just manage finances, guardian if you manage all aspects of their life. Either way it’s mostly the same court procedures, and that’s what I want to walk you through.
Let’s say Dad can’t manage his finances anymore. If he realizes that, you don’t need to go to court, you just have him sign a power of attorney. But let’s say he insists he can still handle it all himself. Maybe the dementia has progressed to the point where he isn’t seeing things clearly. He may have lost benefits because he didn’t get paperwork in, he may have been scammed, he may have forgotten to pay his bills. Or maybe he’s in a coma and can’t sign anything.
So, you initiate a guardianship case. How? By filling out a form. The Alaska Court System has a form petition on its website. It’s not an easy form; you have to provide a lot of information about finances, medical situations, personal relationships, and so forth. When someone tells me they think they might have to file for guardianship in the near future, I always tell them to get started on the form early, because doing that on short notice can be overwhelming.
You fill out the form; you file it at the nearest courthouse – what happens next? The case is assigned to a judge. In Anchorage the load is shared between three magistrate judges. In other courthouses it’s usually one particular judge. Either way that judge is going to do three things.
First, the judge will appoint a “court visitor.” This person, on contract with the court system, will do an investigation. They’ll read medical records and interview people, including you but also the respondent (the allegedly incompetent person is the “respondent”) and others. The court visitor will file a report, with background facts and a recommendation as to what they think the judge should do.
The second thing the judge will do is set a hearing. This varies from judge to judge, but typically it’s about one or two months down the road. You can ask for an earlier hearing but there’s no guarantee.
And third, the judge will appoint an attorney for the respondent. This can be a bit hit-and-miss. Some of the attorneys who take these appointments are fairly aggressive; others are pretty blasé. But the attorney is supposed to advocate for what the respondent wants, as opposed to what they need.
This can be a shock to the person who filed the petition. You thought you were just doing a nice thing by getting this process moving, right? But now Dad has told the attorney that he’s perfectly capable of taking care of his own finances, by gum, and now the judge is expecting you to be the prosecutor. You have to call witnesses, present evidence, and do a lot of other stuff you’re not trained for. You may end up having to hire your own attorney, paid for out of your own pocket.
But here’s the worst part, in my view: You have to present evidence that will show that Dad is not capable of managing his own affairs. That means bringing up situations that are embarrassing or distressing to him. And this happens while he is sitting right there in the courtroom. In divorce cases, sometimes a parent will try to bring a minor child into the courtroom, but invariably the judge sends them back out and then chastises that parent for dragging the child into the middle of it. But in adult guardianship cases, the respondent has the absolute right to be there in the courtroom while all of this is going on. That can be difficult for everyone involved and can even poison family relationships later.
Most of the time adult guardianships can be avoided by having two documents in place: a financial power of attorney and an advance health care directive. Sometimes a trust can help as well. But unquestionably, guardianship cases are to be avoided.
Kenneth Kirk is an Anchorage estate planning attorney. 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. Even the embarrassing ones.
