The Netflix movie “I Care a Lot” (released Feb. 19) is a fictional tale depicting a predatory professional guardian who systematically and terrifyingly uses the Court’s guardianship process to exploit vulnerable seniors for her own financial gain. The movie has lots of star power with Rosamund Pike, Peter Dinklage and Dianne Wiest. As an elder law attorney with 25 years’ experience working to protect vulnerable seniors, I probably could not have stomached watching the whole movie if not for the great performances. As dark as this pitch-black comedy is, could this really happen?
Here’s how the grift works- a doctor selects an elderly patient who appears to be a good candidate for guardianship: a person of solid financial means (guardian can get paid fees) who’s not too old (get paid for a long time), has no known family (no one to interfere), and is on the brink of dementia (which the doctor grossly exaggerates). The professional guardian, Marla Grayson (Rosamund Pike), petitions the Court for guardianship with no notice to the alleged incapacitated ward, Jennifer Peterson (Dianne Wiest). The judge signs the order believing (based upon false evidence and no due process) that Ms. Peterson can no longer care for herself and needs someone else to step in as guardian to handle her personal and financial matters. The guardian shows up at Ms. Peterson’s home unannounced with the court order saying she is now in charge and assuring Ms. Peterson she will take good care of her and her finances. Ms. Peterson is then whisked away to a nursing home where the manager (also in cahoots) and the guardian escort her to a private room and promise she will be treated “like a queen” just before they confiscate her cell phone. Ms. Peterson then learns the facility is locked and she is not allowed to leave. The whole thing happens quickly and with military precision: the guardian is now free to sell the house, drain the estate, isolate and overmedicate Ms. Peterson who is a seemingly kind and normal 70+ year old woman who was up ‘til then living a pleasant and independent life. It turns out the guardian picked the wrong “golden goose”, and the plot twists take off from there.
This is not a documentary; it is a fictional story. However, it is so unnerving I am sure movie watchers wonder if this could really happen and if so, wonder what they can do to avoid this from happening to them. I have handled guardianship and conservatorship cases for over two decades in Arizona, typically representing individuals, licensed fiduciaries, and bank and trust companies as guardian and conservator. This blog is intended to hi-light key differences between fiction and reality and offer advice you can use to avoid becoming the subject of a guardianship proceeding.
But first, some background information: In Arizona we use the term “guardian” for someone appointed to make personal and medical decisions for an incapacitated adult and the term “conservator” for someone appointed to handle financial matters for someone in need of protection. The person under guardianship is referred to as a ward or incapacitated person, and the person under conservatorship is referred to as a person in need of protection.
Here are some key differences between the movie and reality in Arizona guardianship and conservatorship proceedings, and ways to avoid guardianship and conservatorship:
- Would an Arizona court appoint a guardian or conservator without advance notice to Ms. Peterson?
In the absence of a true emergency (e.g., immediate life-threatening situation or high risk of immediate and irreparable financial harm or waste), Arizona law mandates that Ms. Peterson be served by a personal process server at least 14 days in advance of the court’s hearing with notice of the hearing, where and how to appear, and copies of all court pleadings. The process server must also complete an affidavit that is filed with the court confirming this was done. Where an emergency exists, the Court can appoint a Temporary Guardian and Conservator with either shorter or no notice advance. The court will only consider the matter without notice if there is a verified affidavit evidencing that immediate and irreparable injury, loss or damage will result before the proposed ward or the proposed ward’s attorney can be heard in opposition. If the interim Temporary appointment were to occur without notice (very rare occasion), the Guardian has to serve the Order and all court filings on the ward within the time prescribed by the Court (no longer than 72 hours after appointment). The ward may then appear and move for its dissolution or modification on two days’ notice to the petitioner and to the temporary guardian or on shorter notice as the court prescribes. The court shall proceed to hearing and determine that motion as expeditiously as possible. In the movie, Ms. Peterson was not given any due process!
- Where was Ms. Peterson’s attorney? Where was the Court Investigator?
In the movie, Ms. Peterson does not appear to have her own attorney. In Arizona, an attorney who has undergone court-appointed counsel (CAC) training must be assigned to represent her. The role of CAC is to advocate at court the proposed ward’s position regarding the appointment of a guardian and conservator. The CAC would have met with Ms. Peterson in advance of the hearing and appeared at Court with her to object. The matter would probably have been dismissed quickly once Ms. Peterson demonstrated her competency. In Arizona, this likely would have been a very short movie. It should also be noted that the CAC has a right to visit with his client at any time; the guardian cannot bar access to counsel.
Another character missing from the movie is a court investigator. An investigator shall have a background in law, nursing or social work and shall have no personal interest in the proceedings. By law, the investigator must conduct an investigation before the court appoints a guardian or a conservator to allow the court to determine the appropriateness of that appointment. In conducting investigations, the investigator shall interview the alleged incapacitated person or the protected person and the proposed guardian or conservator, visit the alleged incapacitated person’s or the protected person’s current or proposed place of residence, interview nursing home or care home care givers and the home’s manager or administrator, and transport the alleged incapacitated person or the protected person as directed by the court. Further, the investigator may examine any court record, medical record or financial record that relates to the investigation. In short, the investigator looks at the entire situation and issues a written report with their opinion as to what will be in the proposed ward’s best interests. The Court will consider the investigator’s report in making its decision.
- Can a guardian isolate their ward from friends or family? Can the guardian place the ward in a locked facility?
Under Arizona law, a guardian shall encourage and allow contact between the ward and other persons who have a significant relationship with the ward unless the Court determines contact is harmful and needs to be restricted in some way. Notably, Arizona law specifically allows the ward or other persons to petition the court for specific contact rights if they believe appropriate contact is not being allowed by the guardian.
With regard to placement, a guardian shall find the most appropriate and least restrictive setting for the ward consistent with the ward’s needs, capabilities and financial ability. Ms. Peterson should not have been placed in a locked facility. Typically, locked memory care or skilled nursing is only appropriate for ambulatory incapacitated persons with significant cognitive impairment (e.g., brain injury or advanced dementia) and/or behavioral issues who might wander, get lost, and come to harm or harm others. Additionally, unlike Marla Grayson, an Arizona guardian shall take into consideration the ward’s values and wishes in making decisions.
- What is a professional guardian, and does Arizona have them?
There are professional guardians in Arizona, referred to as licensed fiduciaries. In Arizona there are two types: public fiduciaries (county and tribal agencies) and licensed fiduciaries in private practice (individuals and businesses). Licensed fiduciaries charge for their services and serve a vital role to ensure Arizona’s elderly, mentally incapacitated and other vulnerable citizens have regulated and trained individuals or businesses available to manage their financial affairs, medical decisions, and other vital matters. As you can imagine, it is a big job when someone accepts the responsibility for taking care of the needs or property of another person. There are many seniors who do not have a relative or close friend able to help or that they trust to help. Licensed fiduciaries serve an important role by filling in the gap.
In most cases, a relative is appointed as guardian or conservator. However, when guardianship and conservatorship is necessary and there is no able, willing, and appropriate relative or other interested person to serve as guardian or conservator, the court often appoints a licensed fiduciary. In other instances, the court might appoint a licensed fiduciary to serve the best interests of the ward when significant turmoil and legal disputes among family will likely continue without a neutral third-party professional at the helm. In all cases, the court must consider the best interests of the proposed ward in appointing the guardian and conservator. This industry exists to serve the needs of our most vulnerable and in my experience, these professionals are just that- professional.
Licensed fiduciaries are businesses which charge fees for their services. All fiduciary fees and costs charged to clients and their estates in guardianship and conservatorship cases must be approved by the court every year (after notice to all interested parties and hearing) and the basis of fees must be disclosed to all interested parties at the outset. The court determines case by case which fees are reasonable and payable by the estate, using prescribed guidelines.
- How can you avoid becoming the subject of a Guardianship and Conservatorship yourself? How can you help avoid Guardianship and Conservatorship over a loved one?
The best way to avoid guardianship and conservatorship is to have a complete estate plan in place and then routinely review and update your estate plan with your estate planning attorney! Most people do not realize that an estate plan does more than just plan for their estate after death; a complete estate plan includes documents such as medical directives, durable financial powers of attorney, and trusts which are used to designate the person(s) you trust to handle your medical and financial matters in the event of later incapacity due to serious illness, accident, advanced age, or any other cause. Without these estate planning documents, if you were to become incapacitated there is a high likelihood those who care about you will end up in Court seeking guardianship and/or conservatorship over you. While you will have due process rights (unlike in the movie), your estate will pay all the legal fees and costs, the judge will be selecting your decision makers (not you), strangers will know your personal information (e.g., attorneys and court investigator), all your adult children will receive copies of court filings and the annual accounting (lack of privacy), and there will be otherwise unnecessary delays and stress for all involved. Guardianship and Conservatorship is not a plan, it is what happens to you when you have no estate plan.
It is important that those you care about also have a complete estate plan. Why? If they were in a serious accident or became suddenly ill, you or someone else might end up at court requesting to be appointed as their guardian or conservator. It is always easier to avoid Court, and simply act under the legal authority granted by their own estate planning documents. But what if your spouse, parent, grandparent, adult child is reluctant to put documents in place? Maybe have them watch “I Care A Lot”.
At Bivens and Associates, PLLC, we handle all types of estate planning, guardianship, and conservatorship matters. Let us help you. Call 480-922-1010 to schedule your consultation.
- Stephanie A. Bivens, Esq. CELA