The good side of Guardianship and Conservatorship
All that we have seen regarding Guardianships and Conservatorships to this point has been negative; there is a very good side for these legal instruments. The aging of America has left many with little or no help from family members as they age in place. And anyone who has experienced a severe illness or disabling injury can tell us about the days when they just cannot take care of themselves, so some help is needed. Perhaps when they are just too tired to think clearly about financial matters.
Certainly we all want to be able to have a spouse or close relative who can step in for just a little while and allow us to just get better. Unfortunately, as we are aging and those around us are doing the same, it is not always the case to have the help wanted. And if the situation becomes dangerous or if we are targets of financial scoundrels then we need to have some help. Both guardianship and conservatorships can be (and are meant to be a short term tool); it is just that sometimes other situations get in the way.
Guardianships are there to help preserve our rights and also to allow someone to help us meet our responsibilities. And when we are so ill or debilitated, having a person to stand beside us and reaffirm our wishes is very comforting. A clear example was a gentleman residing in a Skilled Nursing Facility who wanted grapes to eat at least once a day. There was no reason he could not have had these but the Kitchen Staff, adopted a policy that they would have grapes (if they could get them) only once a week; ‘after all, do you not understand how difficult it is for us to meet individual demands for all 193 beds’. Now the gentleman was willing to pay for someone to go buy him the grapes, however being a Skilled Nursing Facility meant there was no bus to take residents to the story. Well, to make a long story shorter, it is the responsibility of the staff to meet the requests of the individual whenever possible. This living environment is not a custodial care facility; rather it is a facility for medical resources to foster wellbeing.
It required a guardian to make sure the grapes were purchased biweekly for the gentlemen. And it required an attorney to explain the difference in the facility to the administrator, fostering an understanding of basic human kindness and human treatment of a person legally. Do not misunderstand the grapes were not the only issue. Grapes were only one of several issues that triggered a guardianship petition.
A conservatorship preserves the financial needs and rights of an individual, when necessary. And this could not have been any more true than when a person without any family and with a limited mental intellect; was thrust into a situation of financial contract.
The person was considered very capable of living independently meeting all the requirements for safely meeting their own needs. However, when told of a way to gain $500.00 to buy a TV and not paying it back until the following month, the person leapt at the chance. Having a minimal understanding of finance and no knowledge of paying back interest or how that interest was compounded, the loan was made and all seemed well, until the day of payback. The person went in to repay the amount barrowed and was told they did not have enough money. Very confused and without the capacity to understand, the person paid the $500.00 and took another loan to repay the interest the following month. It was the person’s employment (many people with limited mental function are living on their own with jobs that foster self-esteem, however the job pays almost nothing). Long story short, a court officer was made aware of the situation and when a meeting with the loan officer did not go well, a conservatorship was established. A court hearing was accomplished and the loan officer, the person with diminished capacity and the conservator in front of a Superior Court Judge. The loan officer was deemed predatory, as the original loan was for $500.00 with a monthly interest rate of 390%, (this is not a typo, this happens everyday) which could be compounded if not paid back within one month. The hearing resulted with the interest being dropped if the conservator would not have the predatory loan practices of this business leaked to the local newspaper.
In both of these cases the solution could not have been met without the help of a person invested by the courts to run interference for a person. As our population ages, more and more, people are in need of a little help to live their best in life. We not only need to meet this need, but we must do so with some oversight. Both of the situations happen daily to one degree or another and require the services of a legal professional.