This is a composite account of many cases we have worked on over the years. The names and events have been changed to avoid disclosing confidential client information.
Bob, age 73, retired 10 years ago after a successful career. Martha, his loving wife, died five years ago. They had two children, Tom and Agnes. For the last three years, Bob and Grace have been companions. Until recently, Grace and the children have been cordial, but not close. Bob has been the rock of the family. Tom and Agnes were always amazed at their father’s ability to keep track of all the things that went on in his life and theirs. Two years ago, however, some cracks appeared in the rock. Bob began forgetting things and was diagnosed with the early stages of dementia.
Bob had appointed Tom as his agent for financial and health care under his durable power of attorney. Tom was also named as executor in Bob’s Will, and he and Agnes were the sole beneficiaries of Bob’s estate. Since the onset of dementia, Tom had been helping his dad manage his affairs. Recently, Bob has refused to talk to Tom and Agnes. Grace took Bob to a new lawyer and Bob signed a new power of attorney removing Tom as agent. Tom has bent over backwards to care for his father and to try to help his father maintain his independence, but he now suspects his father is incompetent. Tom fears his dad may be subject to undue influence by Grace and others.
A durable power of attorney allows you to designate who will make financial and health care decisions for you when you are unable to do so for yourself. Alas, it only works if you cooperate with the people you have appointed as your agents as you retain the power to revoke the document so long as you are competent.
What can Tom do to protect his dad? Tom can do nothing and risk having his dad taken advantage of and having himself and his sister disinherited or he can ask the court to intervene through a guardianship. A guardianship is not often the first choice for managing the affairs of an incompetent person, but in this case it may be the best choice. It allows for an independent party called a guardian ad litem (GAL) to evaluate the facts and advise the court as to whether Bob needs a guardian, and if so, how extensive should the guardian’s power be. Some people only need help with some of life’s chores while others need help with all of them. Finally, if a guardian is required, the GAL can advise the court who should be the guardian.
