Trending now on Netflix is the disturbing and thrilling film, “I Care a Lot,” starring Rosamund Pike as Marla Grayson, a character who uses a probate court as a weapon against elderly individuals. The main character is a villain who targets the innocent and vulnerable, has herself declared guardian against their will, and then drains their assets because she had the legal authority to do so.
Can this happen in Kansas?
Can this really happen? The film is a hit for Netflix, and those who have seen it will likely ask that same question. According to Writer-Director J Blakeson, it can. In a recent interview, he explains: “In Marla’s approach, a lot of it happens unfortunately. It’s true to life in the fact that there are lots of these predatory guardians who do pray on vulnerable and elderly people, and sort of entrap them in these guardianships and basically sort of strip their life apart. The true life stories of it are really quite harrowing and horrifying so unfortunately, yeah, it does happen.”
Before we delve into the details of such illegal behavior, let’s go through a few basics. First, the definition of guardian. In Kansas, a guardian for adults is someone appointed by a court to carry out the general duties and responsibilities and “to take charge of the person of the ward,” including the authority to provide for the wards’s “care, treatment, habilitation, education, support and maintenance. The guardian has authority to provide on behalf of her ward necessary and required consents or refuse the same and is not obligated to use her own financial resources to the ward.
A conservator is different. While a guardian is responsible for caring for the person, a conservator is responsible for that person’s finances. Specifically, Kansas law states a conservator is responsible for making legal decisions affecting a conservatee’s finances and estate (personal and real property).
Finally, how does a court appoint a guardian and/or conservator for an individual, especially against their will? Although it can happen “in the best interests of the proposed ward or proposed conservatee or in the interests of justice,” anyone who is interested in the well-being of a incapacitated adult can initiate the guardianship process by filing a petition with the court.
The court will look at the evidence about a prospective Ward’s ability “to receive and evaluate relevant information, or to effectively communicate decisions, or both, even with the use of assistive technologies or other supports, is impaired such that the person lacks the capacity to manage such person’s estate, or to meet essential needs for physical health, safety or welfare.” Kansas law encourages participation of the Ward and family in making decisions about their care. The Ward is also entitled to have his or her own attorney who normally should have a prior relationship with the Ward and known family members are contacted. In other words, anyone who is judged incapacitated gets a voice in the process all along the way.
This is not reflected in the movie, because the director wanted to tell a different story. Mr. Blakeson stated “And so the idea of taking somebody who’s basically a legal gangster – because there’s not really anything she’s doing that’s totally against the law. She’s overcharging people, but she’s sort of exposing loopholes in the law – running up against somebody who is a gangster and is on the other side of the law felt quite interesting.” This makes for good entertainment, but it’s not how the system works.
Professional Guardianships are Expensive
Having said that, people are people and some have different motivations than you while you both comply with the law. It is a fact that professional guardians are often expensive and could eventually deplete the estate even without a bad intent. The cost of a professional guardian are generally secret, but in a recent case in Michigan, an estate was depleted of assets in just six months. An investigative TV news report in Michigan revealed that three months of professional guardianship cost $123,000.
It’s true that almost no one, at any stage of life, wants to admit they are incapacitated and accept the services of a professional guardian or conservator. We all believe we can manage our own affairs as we have done our entire life. To admit otherwise is seen as a personal failing, and having a court do so is a humiliating loss of dignity and control. Sadly, although no one wants to admit they have a loss of their faculties, the reality is that some people do suffer from dementia or early onset Alzheimer’s and therefore should not manage their own affairs. No one wants this all done in the public for the world to see.
All of this can be avoided with proper planning. Kansas law is clear that a guardian need not be appointed for a person who has appointed an agent under an alternative that includes estate planning instruments.
In other words, if you have a comprehensive estate plan, it is almost impossible for a guardian and/or conservator to be appointed against your will. A complete plan includes a fully enforceable provision that says a named person of your choosing can manage all of your affairs and make medical decisions in the event you are, through no fault of your own, unable to do so. The best part? It can be temporary, so if your condition improves then you can return to managing your own affairs.
In a well-drafted estate plan, who chooses the people that decide whether you are incapacitated? You do, not the court. You can create a “panel” of individuals that include medical professionals, a spouse, children, and basically anyone you like and trust. You can require a unanimous vote within the panel or a simple majority. You can even require court or mediator involvement.
Let us help you ensure that the horrific situation presented in this movie can never happen to you or your loved ones. Give us a call today.
This article is a service of KC Legacy Law and attorney Michael Jahn, Esq. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Family Wealth Planning Session™, during which you will get more financially organized than you’ve ever been before, and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge.
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