Episode Transcript
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Speaker 1 (00:00):
Good morning, Welcome to Life Happens Radio. Are you prepared?
Speaker 2 (00:03):
This is our weekly radio program for baby boomers and
their families. We address the challenges we all face as
we age. We talk about aging as a lifestyle, the
issues that must be confronted, and the careful planning that's
required to avoid crises in the future. Life Happens will
provide you with tools to educate and prepare yourself for
events like retirement, protecting your income and assets, planning to
pay for nursing, home and home care, special needs Wilson trusts,
(00:25):
planning for an untimely death, and resolving disputes in and
out of court. So Aaron Connor from pier O'Connor and Strauss.
This week we have a new radio person and as
I said a minute ago, a new victim. But you
know that's not true. The victimization has already happened. He's
been assigned a lot of files in the office. So
(00:47):
welcome Brent Stack, one of our newest associate. I Nope,
that's not actually not true, right. I mean, we have
an associate pending admission. But Brenn is actually a barred
lawyer and he's been a lawyer for some time.
Speaker 1 (01:01):
So welcome Brent, so far, thank you.
Speaker 3 (01:03):
Yeah, I've had a license with no interruptions so far.
Speaker 2 (01:08):
So Brent works with me on the litigation side of
the house. He is certainly very familiar with guardianships. I
haven't done a lot of guardianships and this special needs
world as well, So, Brent, why don't you just give
the audience some of some background.
Speaker 3 (01:27):
Yeah, So for the last about ten years, I worked
for an agency called the Mental Hygiene Legal Service, really
specializing in both Article eighty one guardianships and SCPA seventeen
eight guardianships and a lot of litigation, probably hundreds of
(01:47):
guardianship litigation cases. So I think I've probably seen it
all when it comes to guardianships that you had, as
you have as well, so very familiar with those. I
also presented individuals confined to psychiatric hospitals and institutions. That
was a pretty interesting part of the job also. But
(02:10):
some great people that I've met along the way, for sure.
But yeah, now focusing more on the litigation and guardianships
and the trust in the States with you.
Speaker 2 (02:22):
So yeah, And for those of you who don't know,
Mental Hygiene Legal Service as an agency with the state.
They do a lot of things, but in our realm,
as Brent said, we see them mostly in guardianships. Many
times they're assigned as either court evaluator or a court
appointed attorney for a person who's alleged to be incapacitated.
Speaker 3 (02:45):
And usually in the messy cases too.
Speaker 1 (02:46):
Correct and usually.
Speaker 2 (02:50):
Not every time, but a lot of the time there
are people without a lot of assets.
Speaker 1 (02:54):
Right, that's the other If it's.
Speaker 2 (02:58):
We need somebody who knows what they're doing and it's
a messy case, a lot of times mental hygiene will
get appointed. If it's a person who doesn't have much
in the way of assets. Appointing mental hygien legal service
is also a way to keep the costs down because
although they're entitled to a fee by statute, yeah, we
we how often do they Yeah?
Speaker 3 (03:19):
I would say it would have to be a very large,
very large assets pool for us to decide to it.
Speaker 1 (03:29):
Wasn't the hourly rate something very like the minimus or.
Speaker 3 (03:32):
No, I mean I don't know, I mean we were salaried.
Speaker 1 (03:36):
No, I mean like the hourly rate that they could be.
Speaker 3 (03:38):
I think it was seventy five. Seventy might have gone up.
Speaker 1 (03:40):
Maybe that's my recollection though it was seventy.
Speaker 3 (03:43):
I think they might have raised it at some point,
but you could not find a lawyer for that amount
of no, no se anymore.
Speaker 2 (03:50):
And you know, I'm sure when Brent decided to make
the move there were people at Mental Hygiene who were
ecstatic about it, that's for But they do do good
work and there are a lot of very experienced people
over there, so we have no nothing bad to say
about Mental Hygiene. No, they trained Brent well exactly. Thank
(04:12):
you for that.
Speaker 3 (04:14):
Yeah, No, I don't know where else you get that
much experience doing that kind of work, right, So yeah,
I appreciate.
Speaker 2 (04:22):
It as well because one of the things that generally
happens in the law is very few trials happen, right.
They do happen in the criminal world, right, and some
of that is a signed council, some of that is
people paying for it, and obviously there's liberty at stake there.
So you know, if you don't like to offer, you're
(04:44):
getting probably roll the dice and go to trial.
Speaker 1 (04:46):
Right. That happens a lot more in criminal then it doesn't.
Speaker 3 (04:49):
Civil trial's expensive, correct, Very.
Speaker 2 (04:52):
Few civil trials go go I mean even when they're
scheduled a lot of times they resolve pretty quickly on
that day or a day or two of testimony.
Speaker 1 (05:03):
It's not going as somebody thought, or it looks like
it's going to cost x, Y and z.
Speaker 2 (05:08):
And the thing that a lot of people don't understand
about going to trial is it isn't the end right right.
The court rarely makes a decision from the bench right.
It does happen. Sometimes it can happen in a guardianship,
doesn't have to I've had many that have gone to
a written decision, and that can take a week, a month, whatever.
Speaker 1 (05:30):
There can be post trial briefing if there's issues of.
Speaker 2 (05:35):
Law that need to be you know, discerned based on testimony,
which means you have to get a transcript, you have
to cite to it, you have to apply the law
to it and argue for your position. That can be months.
But ultimately anyone can appeal an adverse determination.
Speaker 3 (05:54):
Appeal or re litigate right.
Speaker 2 (05:57):
Yes, you can make a motion for generally the first
step is to make emotion for rehearing right, but.
Speaker 1 (06:04):
An appeal can take years.
Speaker 2 (06:05):
Absolutely, so there isn't necessarily finality to a trial. So
that's important to know and that's why we try to
get people to settle. Right, we'll go to a hearing.
I've done many. I couldn't even tell you.
Speaker 1 (06:22):
How many hearings.
Speaker 2 (06:23):
Certainly triple digits. I doubt it's for digits, but it's
certainly triple digits. And it doesn't always go as you
think it's going to go. The judge doesn't always take
things the way you think they're going to take them.
And one of the kind of strange things about a
guardianship is there's no discovery.
Speaker 3 (06:44):
Really right adoption. It's meant to be quick, right, so.
Speaker 2 (06:51):
You're not exchanging discovery demands. You don't necessarily know what
the other side is going to bring to the table.
Speaker 3 (06:57):
No, when that judge says, call your first witness, it's
go time.
Speaker 2 (07:00):
Right, you get a report, right, which I'm sure, yes,
I can recall cases where you were the court evaluator. Yeah,
I'm sure that you were in many other cases too, So,
I mean, I think that's kind of an interesting role.
Speaker 1 (07:14):
Wanting to elaborate on how that works.
Speaker 3 (07:16):
The court evaluator. Really, you know, the court sees you
as kind of their eyes and ears. The task is
to go out and conduct an investigation. It's actually called.
So you you meet extensively with the AIP who's the
alleged incapacitated person, and also the petitioner or petitioners, so
(07:40):
you get a feel for the functional limitations of the
alleged incapacitated person, which is really where you know that
As you know, Aaron, guardianship is two parts. Does the
individual alleged to be incapacitated need a guardian? Meaning are
they incapacitated? Is the proposed guardian and appropriate person to
(08:04):
conduct that role? So we gather that information as court
evaluator and provide it in a very detailed report. I
mean you know you've seen the report detailed, right, I mean,
if you if you comply with the statute.
Speaker 1 (08:18):
That's you're going to I've seen some bad ones in
my day, of.
Speaker 3 (08:21):
Course, yes, but in more often than not, the court
relies pretty heavily on the report of the court evaluator.
I mean that's the yeah, absolutely going out and doing
the work for the court and providing an objective perspective.
Speaker 2 (08:38):
They're not generally advocating for one side or another. No
dog in the fight, right, so it it is given
a lot of weight. I've certainly had cases where I've
been very happy with the court evaluator report, and I've
had cases where I've been very unhappy, and most of
the time unhappy. It's not so much that I think
they came to the wrong conclusion that they didn't.
Speaker 3 (09:00):
Do a good job and put the time in.
Speaker 2 (09:03):
Yeah, I mean, if we're alleging that money is missing,
you should review.
Speaker 3 (09:07):
Bank records, absolutely right.
Speaker 1 (09:09):
You should know what the person's assets are.
Speaker 3 (09:11):
Absolutely you should.
Speaker 1 (09:12):
You should be talking to people.
Speaker 3 (09:14):
And a court evaluator could very easily submit a proposed
order to the court seeking records of all any kind.
Speaker 1 (09:24):
Right. Often, medical records is often.
Speaker 3 (09:27):
I've never I was never denied access to information by
a court as court evaluator, they want you to have
the information.
Speaker 2 (09:36):
Well, right, I mean you need to make that determination.
And we've talked about this before too. Another wrinkle and
guardianship is the alleged incapacitated person can block their medical
records from coming up.
Speaker 1 (09:49):
Correct, that's their privileged.
Speaker 2 (09:51):
And those records can be extremely germane to what you're
trying to prove, but you can't use. So the statute
actually focuses on actively easy for me to say, activities
of daily living you can't just make it one word.
Speaker 3 (10:10):
Ar So eighty ls, that's right, and that's really you know,
we have pretty much centralized guardianship in the third judicial
district here, which is great. We've got one judge who
does most of I don't know, five counties, I believe,
(10:31):
and I've got the most experience within that area. And
really our judge wants to know functional limitations on activities
of daily living, that's right. He wants to tell me
about the eighty ls.
Speaker 1 (10:46):
That's what he's right.
Speaker 2 (10:47):
And there are basically six right and not to be extensive.
It's feeding yourself, clothing yourself, transferring, ambulating, and and sometimes
even those are okay. But if a person can't handle
their finances, like they couldn't balance their checkbook or correct
write a check and know what they're doing or remember
what they're doing, or they couldn't make a sound medical decision,
(11:12):
a lot of it comes down to that.
Speaker 3 (11:15):
Yeah, and you'll see them, you know, you see a
pattern of poor financial decisions, honestly, And when I was
with the Mental Hygiene Legal Service, we saw a lot
of elderly persons in need of a guardianship who would
fall victim to these financial scams, yes, you know, withdrawing
large sums of money from the bank sending it to Yeah,
(11:38):
we had a couple of somewhere by way of Atlantigeria,
Nigeria by way of Atlanta, convinced that there's going to
be a mail order bride on the way. Stuff like that.
Speaker 2 (11:55):
Some of them said, king whatever needed alone, right right,
And that sounds you know, so realistic.
Speaker 3 (12:00):
Yeah, close, way beyond miss miss bills. But I think
that's where it starts, is poor financial decisions on the
on the properties management side, absolutely, and then yeah, personal side,
it's you know, person's failing to dress appropriately for the weather.
They they could wander from their homes. Now concern Alzheimer's
dementia a lot of cases, and those are the sad
(12:23):
cases too.
Speaker 2 (12:24):
Absolutely, So I think that's a good place to take
a break. We'll take our first break here, we come back.
We'll continue to talk about some wrinkles and aspects of guardianship.
Amaron Connor from Piro Connor Strauss. This is Life Happens Radio,
and we'll be back right after this.
Speaker 1 (12:41):
Welcome back to Life Happens Radio.
Speaker 2 (12:43):
Aaron Connor, Piro Connin Strauss, joined by our newest associate,
Brent Stack, working in the litigation department, and we were
talking about guardianships because that's where our expertise lies. Certainly
that in the litigation arena generally after Sunday, though, I do.
(13:03):
I am thinking about submitting a guardianship application for the
New York Giants. It does seem that they're incapacitated in
some way, shape or form. Fortunately, Yes, yeah, so, I
mean maybe maybe for John Marra, I mean, would not
be the first NFL owner to advent suit.
Speaker 1 (13:24):
Not that long ago.
Speaker 2 (13:25):
Tom Benson, who owned the Saints, I'm not sure if
he still owns the Saints. He was alleged to be
incapacitated by his kids. That didn't work out well for that. Actually,
there's also one filed against the Houston owner too, more recently,
but it's so wild, I mean. And now there's a
whole series about what happened with the Clippers, right, I
(13:48):
have not watched that yet, but I think I will
add that to the list. So guardianship happens to everybody.
It does live long enough, and you can plan.
Speaker 1 (13:59):
To avoid it, right and you know, doing a just
a basic power of attorney and health care proxy have
a lot to do with that.
Speaker 2 (14:10):
Absolutely, they're not complete fail safes, but they're they're pretty
good insulation and way cheaper than doing a guardianship, way cheaper.
I've done several guardianships where people didn't name a backup
on a document.
Speaker 1 (14:26):
My husband and wife just appoint them.
Speaker 2 (14:28):
You know each other, and they die at different times,
and the other person becomes incapacity they don't have an agent.
Speaker 3 (14:36):
Oh a lot of times the the agent becomes incapacitated
while serving.
Speaker 2 (14:42):
That's also that has happened. There's also bad acts by fiduciaris, right,
So people who don't do guardianship work will often call
me and say, why are you bringing a guardianship in
this matter? There's a power of attorney or health care proxy. Well,
that's not the beginning and the end of the story.
(15:06):
There are other avenues, but those are much slower. Like
if you want a remedy for a power of attorney,
you can demand an accounting for a power of attorney,
and you can do a turnover proceeding to get things back.
That's all kind of a long run. And if you
get a pointed guardian you can do those things anyway,
but at least you can fix them asap.
Speaker 3 (15:26):
Correct. Yeah, And oftentimes in the order itself, right, the
court will dissolve of the power of attorney if there
are bad acts and if.
Speaker 2 (15:35):
Right and that's not working, if you're alleging that the
burdens on you. Right, So the statute is eighty one
to twenty nine. If you can show a violation, violation
of fiduciary duty, then that person will be knocked out. Now,
there may be other people down the line, right, but
the only way to knock them out is through a hearing.
The fastest way to get a hearing is really in
(15:57):
a guardianship.
Speaker 3 (15:58):
Really is it's a special like I said, and I
think our courts typically are going to once you file
your order, show cause and petition, probably going to turn
that around in forty five days or less, which is
light speed and litigation.
Speaker 1 (16:14):
Correct.
Speaker 2 (16:17):
So people tend to think of power of attorney or
health care proxy is a be all end all.
Speaker 1 (16:23):
It's not.
Speaker 2 (16:24):
But we want you to have them because you really
can't avoid this problem ninety nine percent of the time.
Speaker 3 (16:30):
Absolutely, if they work. If they're working in terms of
the agent appointed in each instance power of attorney, typically
that's going to be your your property agent, as long
as they're managing your funds properly and no signs of
abuse there or neglect. A lot of times courts will
(16:51):
see that as a sufficient vehicle on the property management side,
and with your health care proxy, as long as they're
making healthcare related decisions in the best interests of the principle.
Speaker 1 (17:03):
Right and not themselves.
Speaker 3 (17:04):
That won't be. That won't be court would be hesitant
to a point a guardian in lieu of those two
actors if they're acting in good faith and you know,
maintaining their fiduciary capacity.
Speaker 2 (17:19):
So one of the standards we rush up against a
lot is that guardianship has to be the least restrictive
alternative correct, right, which.
Speaker 1 (17:28):
Is not a small burden.
Speaker 2 (17:31):
And so what that means is if a person has capacity,
sometimes these cases resolved by them doing a power of
attorney or a health care product, right, And it may
be appointing somebody else, it might be just doing one
in the first instance.
Speaker 1 (17:44):
Right. So one of the kind of interesting things.
Speaker 2 (17:49):
And I think on our end, is that if you
are alleging mom or dad is incapacitated, I can't really
meet with mom or dad, right, because then I'm going
to have a conflict, abs.
Speaker 1 (18:00):
I have to take you at your word.
Speaker 2 (18:02):
Right, If you're successful, you can get repaid for mom
or Dad's assets.
Speaker 1 (18:06):
No guarantee of that.
Speaker 2 (18:08):
You're going to be on the hook at least in
the first instance for that legal fee. But I can't
do that. People come in, they're like, well, can you
evaluate them? If I do that, I'm out right and
I'm generally not going.
Speaker 3 (18:20):
To be interesting of the Mental Hygiene Legal Service appointed counsel.
Speaker 2 (18:24):
Right, So I'm going to astor I'm going to ask
you questions about you know, do they know who you are?
Do they know where they are? Are they managing their finances?
Are they, you know, taking medication going home.
Speaker 1 (18:36):
On their own? Right?
Speaker 2 (18:37):
Can they drive? Are they becoming disoriented? Do they have
proper in home care? Because that's a big part of it.
You know, the last thing we want to do is
take someone from their house, right, But sometimes that's the
only answer. If they're not letting people in, they're not
making good decisions, we we have to place.
Speaker 3 (18:57):
Them well, and I think you I think in your
experience also, you see a lot of these people they
due to their functional limitations and their inability to thrive
in the community setting. A lot of times they find
themselves in either an emergency room, yes, or on a
general floor of a hospital. That's where a lot of
(19:19):
it happens, and not really receiving medical care.
Speaker 1 (19:21):
Right because they don't need it. It's custodial care.
Speaker 3 (19:23):
It's custodial care because a hospital has a duty to
safely discharge all all patients, right, And sometimes that becomes
a problem because they know the person can't go home
because they're not safe at home, they don't have proper
in home care. So that's when a facility will will
(19:45):
hire someone like us to apply for guardianship and then yeah,
if you can restore someone to the community in their home, great,
If not, you have to look at long term care,
the skilled.
Speaker 1 (20:00):
Nursing, and sometimes the long term care is a bridge. Right.
Speaker 2 (20:04):
We've done this several times where right now there's there's
not a home care plan in place. There may be
modifications to a house that need to be made. Sometimes
the house just needs to be cleaned up, sadly because
it's gotten to a state where it's it's full of
stuff and that kind of thing. So we are on
(20:26):
that rare team. Occasionally pulling people out of nursing homes
and putting them back in their house, right, which is unusual,
but it does happen.
Speaker 3 (20:34):
It has. We've worked on a few cases together where
it's happened, which is it's very satisfying initially.
Speaker 2 (20:40):
Yeah, to see litigation is hard as a to take
a lot of personal gratification for because it's a difficult area, right,
and people are in bad situations. They're not themselves, you know.
We always feel like we're doing the right thing. There's
no one hundred percent know that. But when we get
(21:03):
people reunited or we are able to get someone back home,
it's a clear victory and it really keeps you going
and keeps you.
Speaker 3 (21:13):
It really does.
Speaker 1 (21:14):
Yeah.
Speaker 3 (21:14):
So I think we had one recently where an individual
who was in a facility that he could not communicate right,
and we were able to reunite him with his family
albeit and I don't know in the South, correct, yes,
but you know they had a plan in place to
care for him at home and he was able to
(21:35):
leave a nursing home. Yes, extremely rare.
Speaker 1 (21:38):
Yes, that that one.
Speaker 2 (21:39):
I think everyone was emotional about, even the judge a
little bit. And you know, the bad actor didn't even
bother to appear, right, absolutely, so it's not really much
more of an admission hand right, And we actually had
to write to get the wallet back and the cell.
Speaker 1 (21:59):
Phone and shockingly they actually came back.
Speaker 3 (22:02):
Yeah, I mean, like you said, these these uh, when
litigation does occur, it's everybody's pretty much having their worst day,
the worst time of their life, and emotions are are
definitely high.
Speaker 1 (22:17):
Right. Yeah.
Speaker 2 (22:20):
I think as Brent has seen and he's now continuing
to see, you can't get rid of your family, whether
you have a relationship with them or not. There are
times in life where it fortunately keeps rearing its head,
absolutely right, whether it's at death, whether it's towards the
end of life, end of life decisions, or end of
life care. It is kind of amazing how how many
(22:42):
people don't have an active role, but they're usually parents,
and then when it's they need help.
Speaker 1 (22:48):
Or they've they've passed away, they're they're looking for something, right, and.
Speaker 2 (22:54):
That's probably never going to change. So as much as
you can, you won't need us. One way to avoid
us is trying to get along with your siblings.
Speaker 3 (23:05):
Right.
Speaker 1 (23:05):
It's not always possible, right, I.
Speaker 3 (23:07):
Mean, I've had cases where we even myself and the
Court of Evaluator met with a large contingent of family
members and said this, the AIP is not going to
live until this litigation is resolved. Right, we want, we're
urging you to come together.
Speaker 1 (23:28):
And even if it's just in the short term.
Speaker 3 (23:30):
Just in the short term, because by the time this
is done being litigated, she will have passed. And in
fact that did occur. But that's I mean, the personalities
and the emotions are so strong in these cases that
that's right. You can't get through to people. But yeah,
you're right. The best way to do it is to
get along with your let bygones be bygones and just
(23:52):
you know, try to do the right thing.
Speaker 2 (23:54):
All right, Well, we're coming up on the news. We're
going to take that break. This is Life Happens Radio.
Aaron Connor, Piroicon and Strauss' Connor and Strauss joined by
Brent Stack, associate in our litigation department.
Speaker 1 (24:05):
We've been talking guardianships because that's what we both do. Obviously,
we do a state and trust litigation and brend is.
Speaker 2 (24:15):
Knee deep or way deep probably more appropriately in that
as well. Haven't appeared in some cases resolving one which
was good at least one anyway, I know one. Yeah,
And people are often surprised that I want to resolve
cases like, look, I'm going to give the marketing department
(24:40):
some credit and lose some credit and some of it
myself some credit and other people. We are a marketing machine.
We have a lot of cases, a lot of files.
We try to vet our files as well as we
can so to make sure that we're only taking good cases.
It's not an exact science, but we're pretty good at it.
Occasional clunker here or there.
Speaker 1 (24:59):
But so.
Speaker 2 (25:04):
I don't need to hold onto your case like because
there are attorneys out there who will try to hold
onto your case right because they need to bill it,
they need to build it.
Speaker 1 (25:12):
We are not those.
Speaker 3 (25:13):
We'd rather not spin our wheels.
Speaker 2 (25:15):
Correct, and our reputation is one that we're going to
try to get it done because there's a lot of
emotional baggage in these cases too. And when I am
talking to somebody about what the strategy may look like
in a consultation, I'm talking about there is an emotional
burden to carry too, and it's going to be usually
(25:36):
a couple of years before we're done in a trust
or estate litigation. Right, a guardianship is going to happen
faster than but you have to be kind of weigh
that as well.
Speaker 1 (25:48):
Right, And if you file.
Speaker 2 (25:49):
A guardianship alleging that mom or dad is incapacitated and
they're not right, it's a pretty big roll of the dice.
So it's not going to help your relations no, right,
And it may may lead to negative consequences.
Speaker 3 (26:04):
Right.
Speaker 2 (26:04):
They may change their planning documents to you know, lessen
your share or take you out completely. So all of
those things kind of have to be thought of and
to be fair, a lot of the estate litigation we do,
they're not our files originally, they're not our planning files.
Speaker 3 (26:25):
They're not our wills ideally.
Speaker 2 (26:28):
Right, well, I mean once or twice they are, but
it's not from anything that we did. It's just from
there's a crazy sibling out there who to do this.
No matter what we do, we've never really had to
litigate our own documents, and because we've watched what other
people have.
Speaker 1 (26:42):
Done wrong and.
Speaker 2 (26:44):
If needed, we've altered our documents to take care of
those types of things. And the documents that end up
being litigated are maybe incomplete, meaning that they're they might
appoint only one executor in a will or one trustee,
or there may have been money left to someone who
(27:06):
passed and then not a contingent beneficiary. Oftentimes they are
done last minute and people are forgotten somehow.
Speaker 3 (27:18):
I think we've got a few of those right where
there was a pretty comprehensive will and other maybe trust
documents way back when when there was time to sit
and plan and and really do it right. And then
a lot of times towards the end of life we
see these I don't know, a good two or three
(27:40):
page will pop up, and you're right. Oftentimes people get
left forgotten, yep. And that's where we come in to litigate.
Speaker 2 (27:49):
And oftentimes those documents are done by firms that aren't
really estate planners.
Speaker 1 (27:56):
They might be a solo person, they might be kind
of a I don't know, personal injury.
Speaker 2 (28:03):
Workers COM, some kind of state PI or real estate shop, right,
and I'm sure they're really good at those things.
Speaker 1 (28:11):
But we don't do those things.
Speaker 2 (28:13):
Right because we're really good at this, and that's important
and it really matters because you don't know what you
don't know, right, And we have seen surprisingly people with
a lot of assets, do nothing. We're close to nothing, right,
(28:34):
one of the craziest ones I've ever saw.
Speaker 1 (28:36):
And this wouldn't be most people, but mom did like.
Speaker 2 (28:40):
No planning and had a lot of money, and we
were trying to get some estate tax planning done before
she died. We couldn't, so the daughter then wrote a
personal check for twelve million dollars, a personal check for
(29:00):
twelve million dollars.
Speaker 1 (29:01):
To the government for a state tax.
Speaker 3 (29:03):
Wow.
Speaker 2 (29:04):
Yes, so obviously you have to have a significant amount
of money to have twelve million dollars in tax. But
I've also never ever seen a personal check for twelve
million dollars before.
Speaker 3 (29:13):
Surprising process. Right, So no, but that is evidence of
poor planning for sure. Could have been some of it
could have been avoided.
Speaker 2 (29:22):
I don't know, I can't speak to don't really recall
if all of it could have been avoided. You know,
you get to a certain level. It's kind of hard
to avoid all of it unless you're doing planning over time.
But certainly in large part that could have been avoided.
And honestly, some guardianships that we've done have centered around that.
(29:42):
Many years ago, we had one out a little west
of here, which was a very wealthy family, and surprisingly
Mental Hygiene was appointed as the court evaluator in that one.
That was somebody from a different office though, and she
was great, But it was kind of an odd case
for Mental Hygiene given that millions of dollars were at stake, right,
(30:07):
And ultimately the undercurrent of that case was trying to
get Dad out of New York, so he was not
a New York resident and had to pay New York
estate tax right there probably was almost certainly was federal
estate tax, although that wasn't really what we were focused
(30:30):
on because we didn't represent the alleged incapacitated person and
we could only deal with what was in front of us, right,
But we were ultimately successful in keeping that person in
New York because that's where he had expressed that he
wanted to be, whether he was going to pay a
state tax or not. Frankly, and if planning is done
(30:51):
most of the time, a lot of that can be avoided.
Speaker 3 (30:54):
Well, I think you see people, you see, unfortunately family
members stepping into these fiduciary roles with I guess an
ulterior motive of preserving assets for distribution for themselves on
the death of the person.
Speaker 2 (31:13):
Absolutely, and we're not necessarily against that, right because we
do do guardianships to get medicave planning right. Or we
need to do what's called a gift in note, or
we can save half of it because the person's already
in a nursing home at that point. What we're really
doing is a calculus to determine what the net benefit is. Right,
(31:33):
if you're going to spend fifteen thousand on a guardianship
and you're going to save you know, twenty five thousand
by doing a gift to note, well, probably not worth
it ultimately, right, But oftentimes people are going to be
able to salvage two hundred and fifty three hundred.
Speaker 1 (31:48):
Thousand dollars through that strategy, then it's worth it.
Speaker 3 (31:50):
And I think that's important to note is that a
guardian does have the authority to enter into contracts pretty
much do anything that an individual could do for themselves,
other than placement in a psychiatric facility. That's kind of
the one area where you can't because it's obviously a doctor.
(32:10):
A psychiatrist has to make that determination that someone.
Speaker 2 (32:13):
Needs, right, and that is the question we get often,
and it usually involves young people not always right, could
be a sibling, right exactly. Yeah, so that's a trickier
one that we really can't help with because that, in
my opinion, and this is just speaking for myself, is
that system doesn't really work very well. Obviously, it's important
(32:35):
for the person who may be imprisoned isn't the right word,
but you know, impatient right to be able to guard
their rights. But I think, and this is similar in
the guardianship realm, that the pendulum was so far it
was too easy to put somebody in a facility, or
it was too easy to become a guardian. The pendulum
(32:56):
doesn't swing to the middle, it swings all the way
kind of to the other side, and then it becomes
more difficult to get somebody who actually needs to be
into a facility, even if it's short term into a facility,
or in our case, sometimes it's hard to become get
somebody to become a guardian when we need one because
(33:18):
we just can't access records.
Speaker 1 (33:22):
Exactly.
Speaker 3 (33:22):
And and again, you know, in our petitions we focus
on functional limitations, but it's it's good to have the
why they have functional limitations?
Speaker 2 (33:35):
Why right, well, and can't say this doctor did this
or exactly.
Speaker 3 (33:39):
I mean, I have a petition, but it's not really
evidence of that, right, right, right, can't prove it. And
it's important to note also that you know, when when
drafting a petition for guardianship, we will seek from the
petitioner information about you know what, in what areas can
(34:01):
this person continue to retain their their autonomy and authority
to make certain decisions on their own, and we can
ask that the guardianship order be tailored. That's right, you
said at the outset to be the least restrictive alternative
to this individual continuing to function individually. So it doesn't
(34:25):
You don't take all the rights away from someone who
just needs assistance with filling out forms to become eligible
for Medicaid, for instance.
Speaker 1 (34:36):
Right.
Speaker 2 (34:36):
So many many times where someone doesn't have enough capacity
to really handle their own affairs anymore, but they're not
so incapacitated that they don't know what's going on. We
are often to get a good guardianship on consent, which
is really the best.
Speaker 3 (34:54):
Way, right right, Someone acknowledging that they need some assistance.
Speaker 2 (34:57):
Right, they're called a person in need of a guardian
They're not technically determined and capacitated.
Speaker 3 (35:03):
Right, and then and the court will note on the
record that I make no finding of the capacity.
Speaker 2 (35:08):
And that's really the best situation because we if you're
putting on evidence, it's really kind of hurtful if the
person has any awareness, right, right, Yeah.
Speaker 1 (35:19):
We try to avoid that as well. Right.
Speaker 2 (35:21):
We try to come to a settlement that works, right,
that we can protect somebody, and that is very important.
It's not necessarily that we get everything that we ask
for in a petition. I know that when I draft
a petition, in fact, I may ask for a few
things that I know I'm not going to be able
to get, so I can give them away, right, as
part of what we're doing, and we do really try
(35:46):
to have a good relationship with the people on the
attorneys on the other side, so we can.
Speaker 1 (35:52):
Get this done.
Speaker 3 (35:53):
Absolutely.
Speaker 2 (35:53):
You know, very very few of them are scorched earth
because it just doesn't work, no, And it.
Speaker 3 (35:59):
Is difficult to put on a case as a petitioner.
You have the burden you're alleging that someone is incapacitated
and you're going to incite factual evidence of their inability
to function, and that's kind of awkward and embarrassing.
Speaker 2 (36:21):
Right, And most of it's given through live testimony, again because.
Speaker 3 (36:26):
I'm a family member from someone close.
Speaker 2 (36:28):
Exactly, because you can't nine times out of ten or
probably ninety nine times out of one hundred, medical records
are going to be blocked. You may be able to
get some bank statements to recipoena showing that extra wise happened.
But for the most part, you're going to rely on testimony.
Could be testimony of the court evaluator, right and what
(36:49):
their investigation is. Sometimes I'm a listening that for support.
Sometimes I'm listening it so I can show that it's
deficient right right. All varies on the situation. There are
a lot of really good court evaluators out there.
Speaker 1 (37:07):
I know.
Speaker 2 (37:07):
The court has routinely asked me to get on the
list to be an attorney for a legend and capacitated people.
Speaker 1 (37:14):
I have declined to.
Speaker 2 (37:15):
Do that because I really don't don't have the bandwidth
to do that, and I want to be in control
of what cases I'm taking.
Speaker 1 (37:25):
And what I'm not.
Speaker 3 (37:26):
It's a very involved role.
Speaker 2 (37:29):
Never really know what you're walking into. No, I'm sure
there's some times where it was not great.
Speaker 3 (37:35):
So yeah, and you don't know how long it's going
to take, but it is. It's very work intensive. You
have to gather extensive information and you have to submit
an extensive, comprehensive report to the court exactly, all right, Yeah,
I mean it's it's important to keep in mind that
you know, the person in need of a guardian is
a person exactly. I think you know, before I came
(37:58):
to Pierre Connor and Strauss, I recognize that right away that,
all right, this is a shop that does it right
and doesn't lose sight of that. And I think that's
important because you're talking about a family member here.
Speaker 2 (38:13):
Absolutely, I'm trying to put it back together the best
we can, right. I remember a long time ago somebody
called and I said, well, I certainly see where you're
coming from.
Speaker 1 (38:23):
I do think that you could do this right.
Speaker 2 (38:26):
But what you got to understand is this kind of
like a nuclear solution. Once you drop this bomb, you
can't really put it back right. And I think ultimately
they didn't go forward, and whether that was it, I
don't know, right, but I'm a very upfront person.
Speaker 3 (38:45):
Yeah, I mean, you got to think of the family
dynamics going forward.
Speaker 2 (38:48):
Absolutely, So I think that's a good place to take
our last break. When we come back, we'll continue to
talk about litigated items. Aaron Connor, Pure O'Connor and Strass
Welcome back to Life Happens Radio.
Speaker 1 (39:01):
Thank you for listening.
Speaker 2 (39:02):
I'm Aaron Connor from Pure O'Connor Strauss, joined by Brent Stack.
We are talking all things guardianship, and we've really just
been focusing on eighty one, right, which are adults usually
doesn't have to be There is another form of guardianship.
It's called seventeen A.
Speaker 3 (39:21):
Of the Circuits Court Procedure Act.
Speaker 1 (39:23):
Right, and Brent, why don't you give people kind of
a thumbnail of that.
Speaker 3 (39:27):
I think a lot of people refer to it as
the and I don't know if it's proper or not,
but the parents guardianship. It's typically you've got someone an
individual with special needs becoming an adult. So someone on
the verge of turning eighteen whose parents have throughout their
(39:47):
life been able to manage their affairs simply because they're
a parent. But as soon as that individual turns eighteen,
they're an adult now and technically a parent can no
longer even access their medical records. So to ease in
that transition, if you've got someone with special needs who's
(40:08):
going to need help. They're going to now need a guardian,
and typically those are developmentally disabled or delayed individuals, or
individuals who suffer a traumatic brain injury technically before the
age of nine. I don't know why the cutoff.
Speaker 1 (40:26):
Is there, but it's a weird statute.
Speaker 3 (40:30):
It's different than you know, people who later in life
becoming capacity for medical reasons. It's meant to be easier.
It's meant to be easier, which has.
Speaker 1 (40:40):
Gotten some criticism over the years.
Speaker 3 (40:42):
Too right, because unlike Article eighty one, a seventeen eight
guardianship really cannot be tailored. It's kind of an all
or nothing. It's called plenary powers of guardianship is really
the only decree except for in some courts you will
see you will see a court who kind of chops
(41:03):
up a seventeen eight guardianship as you would in eighty
one and say, okay, what help, what assistance does this
person need? Because we're only going to order that the
guardian be able to exercise those.
Speaker 2 (41:16):
And that means you've got a good judge generally exactly nuanced,
right exactly, And in the seventeen A arena, things tend
to move a lot slower.
Speaker 3 (41:26):
To they do. They do, Yeah, I mean it's it's
a simple petition. It's often not brought by ordered show cause.
And as you know, in order to show cause can
really accelerate when you file papers, serve papers to when
you're in court and an article Lady one guardianship is
required to be commenced via ordered show cause in seventeen
(41:49):
A realm A lot of times you have pro say litigans.
Speaker 2 (41:51):
Yeah, I was just going to say that there's virtually
no chance that a pro say person could do.
Speaker 3 (41:55):
An article anyone, Absolutely not, And I don't think I
actually think that, pursued to court rules, an attorney is required. Yeah,
I don't think you can proceed pro se.
Speaker 2 (42:05):
And it would be it would be a very bad
idea even if you can, very.
Speaker 3 (42:08):
Bad and the court is going to let you know
that on day one.
Speaker 2 (42:10):
Yeah, seventeen A can be done without an attorney. It
can be, But again I wouldn't recommend it because it's
very it's going to slow everything down.
Speaker 1 (42:20):
It's a very form intensive.
Speaker 3 (42:22):
It's very form intensive, which is why parents can do it.
It's it's also the statute requires that every seventeen a
petition be accompanied by two physicians, correct certifications detailing the
individual's functional limitations, which makes it very different from anarchically
(42:46):
one Yeah, like you said, where you can't submit and
a lot.
Speaker 1 (42:49):
Of times we only have one doctor. Right, this becomes
a problem, right, right.
Speaker 3 (42:53):
Yeah, you've got to You've got to find two doctors.
They've got to do more than just checkbox is because
this is an application where you can check boxes, Yes
the person is developmentally disabled and yes I believe that
it's going to be permanent and they're not going to
regain capacity at some later time. That really gives you know,
(43:17):
the court and the litigants very little information about what's
really going on here.
Speaker 1 (43:22):
Right.
Speaker 2 (43:22):
So recently I had one where the parents came to us.
They said, our son needs a guardianship, right, he has
this whatever it was, and I said okay, and then
we talked about it and they're like, no, no, no,
can't do that, he can't do that. And one doctor
completely agreed with them and the other doctor did not,
(43:45):
and that really made it difficult.
Speaker 1 (43:47):
Absolutely. So we could have maybe continued on down that.
Speaker 2 (43:51):
Road and tried to tailor it, but I don't think
we're ultimately going to get there.
Speaker 3 (43:58):
Well, like you said, you need a willing judge right
in the first place.
Speaker 2 (44:02):
And I just finally said to this doctor, well, in
your opinion, this person would understand a power of attorney
in a healthcare proxy. And the doctor said yes. So
that's ultimately what we ended up doing. But I can
tell you that that is the first seventeen I I've
ever had resolved that way. Yeah, I had eighty one's
(44:22):
resolved that way.
Speaker 3 (44:23):
I've seen some go that way, where I guess in
my experience, oftentimes parents will have a different view of
their child's functional limitations.
Speaker 2 (44:37):
Especially if they're divorced. Then exactly, I mean that can
be a huge wrinkle.
Speaker 3 (44:41):
And then say, for instance, the school or doctors, Yes,
a lot of times, a lot of times parents and
other professionals are asked to fill out almost identical surveys,
and a lot of times the parents assess their child's
functional love much much lower than say, for instance, a
(45:03):
school will so a lot of times in seventeen a's
you will you'll see or maybe even if you're representing
the individual, a school will reach out to you and say,
I know what's going on. This person doesn't need a
guardian right, and that's when you know you've got to
have those serious talks with the family and say, hey,
(45:23):
let's do a power of attorney and healthcare pricing instead.
Speaker 2 (45:26):
And a couple of cases I've had where the parents
file the seventeen A and essentially the judge was like, no,
not going to happen.
Speaker 1 (45:37):
Right, this should be in eighty one.
Speaker 2 (45:40):
There's that also, right, but there's no legal requirement for
it to be one or the other. Right, I file
in eighty one when I think it's better. It gives
us more flexibility, you know, But it's it's more work.
Speaker 3 (45:56):
It is so, and it's more expensive for the clients.
Speaker 1 (45:59):
That's right.
Speaker 2 (45:59):
We have to have that discussion. But sometimes it's better.
And we've filed eighty one's for developmentally disabled person where
there's a conflict between the parents.
Speaker 1 (46:11):
Yep, multiple times.
Speaker 2 (46:12):
We've done this because they're not going to get on
the same page for a seventeen A. There's no way
really to fix it that problem in a seventeen A,
so we have to go in Supreme Court and do
a guardianship and those tend to be uglier, unfortunately, because
when people have divorced, those feelings are probably still around.
(46:37):
Certainly when it comes to the child's care and upbringing,
there's you know, a lot of I'm right, you're wrong
on both sides, not on one side or the other,
but on both sides. And the two cases that I'm
thinking of were especially difficult because the incapacitated person could
not really communicate, right, couldn't tell us where they wanted
(47:02):
to be, whether they were really happy or not. You know,
may in some way indicate they want to see both
their parents. Shocking, right, shocking.
Speaker 3 (47:12):
Well, I think you're talking about these cases where you've
got parents who are basically addicted to the family court process.
Speaker 1 (47:18):
It's true.
Speaker 3 (47:19):
And and now now the individual, now the child's an adult,
and so now they now they litigate in a guardianship, right,
And it's really.
Speaker 1 (47:28):
Because there really is a need for a guardian there,
they're a.
Speaker 3 (47:30):
Need for a guardian, right. But essentially they're they're fighting
over custody.
Speaker 1 (47:35):
Correct, it's adult custody.
Speaker 2 (47:37):
And I've had judges say to me, you can't do
adult custody, and I said, well, there's really no other
way to do it. This person needs a guardian. We
construct a guardianship or because that's in the best interest
of the inpticipated person to see both of their parents,
you know, and unless they're in a way they can't.
Speaker 1 (47:54):
They're saying no.
Speaker 3 (47:55):
And I think we've seen cases where the court will say, okay,
let's facilitate a visitation schedule, which is not really something
that falls under you know, that Article eighty one guardianship umbrella.
But it's again, they're people and these are remedies that,
thank goodness, the court is willing to provide, right because
(48:18):
there's no other way to do it. So a lot
of times you can get somewhere you have with the
guardianship that you couldn't otherwise get to.
Speaker 2 (48:25):
You have to show that they're incapacitated, right, that's the
threat threshold issue. And ultimately you're going to award guardianship
to one or the other, but the other person can't
be out in the cold.
Speaker 1 (48:36):
Right.
Speaker 2 (48:37):
If you can't show that they're incapacitated, you're not going
to get to that point, correct, right, because the court
doesn't really have any more jurisdiction at that point because
there's no way for this person to consent. They don't
have to, I mean, and that is a common issue.
Speaker 3 (48:51):
The ability to consent is threshold.
Speaker 2 (48:54):
Yeah, And many times it's available and we resolve. Sometimes
it's available and we don't resolve, And that's.
Speaker 3 (49:01):
Sort of an that's it's tough for us as litigators
to know. I mean, we're not doctors, right, correct, We
don't know when an individual has the ability to consent. Really,
we can advocate one way or another.
Speaker 2 (49:17):
Well, you had to make that determination as a court evaluator,
exactly right.
Speaker 3 (49:20):
Exactly, and we can make a recommendation to the court.
We can say we believe they could consent, right, and
amount of times it comes down to the court, you know, exactly,
observing the individual and questioning a few questions to see
if they really do have the ability to consent.
Speaker 1 (49:37):
And guardianships, it's pretty typical that the court will question
the witness to.
Speaker 3 (49:40):
Some absolutely the court yeah, and in most cases that
individual has to be there, which kind of makes these
these proceedings as awkward, as we said, because you're bringing
up witnesses who are saying, you know, somewhat hurtful things, right,
the individual.
Speaker 1 (49:59):
You can't yourself anymore, you can't do these things. Nobody
wants to hear.
Speaker 2 (50:03):
So if you are an individual in that circumstance or
you need some planning, you need to talk about some
Medicaid planning. Please give us a call at the office
that's five Pine eight four five nine twenty one hundred,
or you can send an email to info at Piero
Law dot com. That's p I E R r O
Law dot com. And thanks for listening. This has been
(50:23):
Life Happens Radio. I'm Aaron Connor from Pierre O'Connor Strass.
Hope to see you back here next week.
Good morning, Welcome to Life Happens Radio. Are you prepared?
Speaker 2 (00:03):
This is our weekly radio program for baby boomers and
their families. We address the challenges we all face as
we age. We talk about aging as a lifestyle, the
issues that must be confronted, and the careful planning that's
required to avoid crises in the future. Life Happens will
provide you with tools to educate and prepare yourself for
events like retirement, protecting your income and assets, planning to
pay for nursing, home and home care, special needs Wilson trusts,
(00:25):
planning for an untimely death, and resolving disputes in and
out of court. So Aaron Connor from pier O'Connor and Strauss.
This week we have a new radio person and as
I said a minute ago, a new victim. But you
know that's not true. The victimization has already happened. He's
been assigned a lot of files in the office. So
(00:47):
welcome Brent Stack, one of our newest associate. I Nope,
that's not actually not true, right. I mean, we have
an associate pending admission. But Brenn is actually a barred
lawyer and he's been a lawyer for some time.
Speaker 1 (01:01):
So welcome Brent, so far, thank you.
Speaker 3 (01:03):
Yeah, I've had a license with no interruptions so far.
Speaker 2 (01:08):
So Brent works with me on the litigation side of
the house. He is certainly very familiar with guardianships. I
haven't done a lot of guardianships and this special needs
world as well, So, Brent, why don't you just give
the audience some of some background.
Speaker 3 (01:27):
Yeah, So for the last about ten years, I worked
for an agency called the Mental Hygiene Legal Service, really
specializing in both Article eighty one guardianships and SCPA seventeen
eight guardianships and a lot of litigation, probably hundreds of
(01:47):
guardianship litigation cases. So I think I've probably seen it
all when it comes to guardianships that you had, as
you have as well, so very familiar with those. I
also presented individuals confined to psychiatric hospitals and institutions. That
was a pretty interesting part of the job also. But
(02:10):
some great people that I've met along the way, for sure.
But yeah, now focusing more on the litigation and guardianships
and the trust in the States with you.
Speaker 2 (02:22):
So yeah, And for those of you who don't know,
Mental Hygiene Legal Service as an agency with the state.
They do a lot of things, but in our realm,
as Brent said, we see them mostly in guardianships. Many
times they're assigned as either court evaluator or a court
appointed attorney for a person who's alleged to be incapacitated.
Speaker 3 (02:45):
And usually in the messy cases too.
Speaker 1 (02:46):
Correct and usually.
Speaker 2 (02:50):
Not every time, but a lot of the time there
are people without a lot of assets.
Speaker 1 (02:54):
Right, that's the other If it's.
Speaker 2 (02:58):
We need somebody who knows what they're doing and it's
a messy case, a lot of times mental hygiene will
get appointed. If it's a person who doesn't have much
in the way of assets. Appointing mental hygien legal service
is also a way to keep the costs down because
although they're entitled to a fee by statute, yeah, we
we how often do they Yeah?
Speaker 3 (03:19):
I would say it would have to be a very large,
very large assets pool for us to decide to it.
Speaker 1 (03:29):
Wasn't the hourly rate something very like the minimus or.
Speaker 3 (03:32):
No, I mean I don't know, I mean we were salaried.
Speaker 1 (03:36):
No, I mean like the hourly rate that they could be.
Speaker 3 (03:38):
I think it was seventy five. Seventy might have gone up.
Speaker 1 (03:40):
Maybe that's my recollection though it was seventy.
Speaker 3 (03:43):
I think they might have raised it at some point,
but you could not find a lawyer for that amount
of no, no se anymore.
Speaker 2 (03:50):
And you know, I'm sure when Brent decided to make
the move there were people at Mental Hygiene who were
ecstatic about it, that's for But they do do good
work and there are a lot of very experienced people
over there, so we have no nothing bad to say
about Mental Hygiene. No, they trained Brent well exactly. Thank
(04:12):
you for that.
Speaker 3 (04:14):
Yeah, No, I don't know where else you get that
much experience doing that kind of work, right, So yeah,
I appreciate.
Speaker 2 (04:22):
It as well because one of the things that generally
happens in the law is very few trials happen, right.
They do happen in the criminal world, right, and some
of that is a signed council, some of that is
people paying for it, and obviously there's liberty at stake there.
So you know, if you don't like to offer, you're
(04:44):
getting probably roll the dice and go to trial.
Speaker 1 (04:46):
Right. That happens a lot more in criminal then it doesn't.
Speaker 3 (04:49):
Civil trial's expensive, correct, Very.
Speaker 2 (04:52):
Few civil trials go go I mean even when they're
scheduled a lot of times they resolve pretty quickly on
that day or a day or two of testimony.
Speaker 1 (05:03):
It's not going as somebody thought, or it looks like
it's going to cost x, Y and z.
Speaker 2 (05:08):
And the thing that a lot of people don't understand
about going to trial is it isn't the end right right.
The court rarely makes a decision from the bench right.
It does happen. Sometimes it can happen in a guardianship,
doesn't have to I've had many that have gone to
a written decision, and that can take a week, a month, whatever.
Speaker 1 (05:30):
There can be post trial briefing if there's issues of.
Speaker 2 (05:35):
Law that need to be you know, discerned based on testimony,
which means you have to get a transcript, you have
to cite to it, you have to apply the law
to it and argue for your position. That can be months.
But ultimately anyone can appeal an adverse determination.
Speaker 3 (05:54):
Appeal or re litigate right.
Speaker 2 (05:57):
Yes, you can make a motion for generally the first
step is to make emotion for rehearing right, but.
Speaker 1 (06:04):
An appeal can take years.
Speaker 2 (06:05):
Absolutely, so there isn't necessarily finality to a trial. So
that's important to know and that's why we try to
get people to settle. Right, we'll go to a hearing.
I've done many. I couldn't even tell you.
Speaker 1 (06:22):
How many hearings.
Speaker 2 (06:23):
Certainly triple digits. I doubt it's for digits, but it's
certainly triple digits. And it doesn't always go as you
think it's going to go. The judge doesn't always take
things the way you think they're going to take them.
And one of the kind of strange things about a
guardianship is there's no discovery.
Speaker 3 (06:44):
Really right adoption. It's meant to be quick, right, so.
Speaker 2 (06:51):
You're not exchanging discovery demands. You don't necessarily know what
the other side is going to bring to the table.
Speaker 3 (06:57):
No, when that judge says, call your first witness, it's
go time.
Speaker 2 (07:00):
Right, you get a report, right, which I'm sure, yes,
I can recall cases where you were the court evaluator. Yeah,
I'm sure that you were in many other cases too, So,
I mean, I think that's kind of an interesting role.
Speaker 1 (07:14):
Wanting to elaborate on how that works.
Speaker 3 (07:16):
The court evaluator. Really, you know, the court sees you
as kind of their eyes and ears. The task is
to go out and conduct an investigation. It's actually called.
So you you meet extensively with the AIP who's the
alleged incapacitated person, and also the petitioner or petitioners, so
(07:40):
you get a feel for the functional limitations of the
alleged incapacitated person, which is really where you know that
As you know, Aaron, guardianship is two parts. Does the
individual alleged to be incapacitated need a guardian? Meaning are
they incapacitated? Is the proposed guardian and appropriate person to
(08:04):
conduct that role? So we gather that information as court
evaluator and provide it in a very detailed report. I
mean you know you've seen the report detailed, right, I mean,
if you if you comply with the statute.
Speaker 1 (08:18):
That's you're going to I've seen some bad ones in
my day, of.
Speaker 3 (08:21):
Course, yes, but in more often than not, the court
relies pretty heavily on the report of the court evaluator.
I mean that's the yeah, absolutely going out and doing
the work for the court and providing an objective perspective.
Speaker 2 (08:38):
They're not generally advocating for one side or another. No
dog in the fight, right, so it it is given
a lot of weight. I've certainly had cases where I've
been very happy with the court evaluator report, and I've
had cases where I've been very unhappy, and most of
the time unhappy. It's not so much that I think
they came to the wrong conclusion that they didn't.
Speaker 3 (09:00):
Do a good job and put the time in.
Speaker 2 (09:03):
Yeah, I mean, if we're alleging that money is missing,
you should review.
Speaker 3 (09:07):
Bank records, absolutely right.
Speaker 1 (09:09):
You should know what the person's assets are.
Speaker 3 (09:11):
Absolutely you should.
Speaker 1 (09:12):
You should be talking to people.
Speaker 3 (09:14):
And a court evaluator could very easily submit a proposed
order to the court seeking records of all any kind.
Speaker 1 (09:24):
Right. Often, medical records is often.
Speaker 3 (09:27):
I've never I was never denied access to information by
a court as court evaluator, they want you to have
the information.
Speaker 2 (09:36):
Well, right, I mean you need to make that determination.
And we've talked about this before too. Another wrinkle and
guardianship is the alleged incapacitated person can block their medical
records from coming up.
Speaker 1 (09:49):
Correct, that's their privileged.
Speaker 2 (09:51):
And those records can be extremely germane to what you're
trying to prove, but you can't use. So the statute
actually focuses on actively easy for me to say, activities
of daily living you can't just make it one word.
Speaker 3 (10:10):
Ar So eighty ls, that's right, and that's really you know,
we have pretty much centralized guardianship in the third judicial
district here, which is great. We've got one judge who
does most of I don't know, five counties, I believe,
(10:31):
and I've got the most experience within that area. And
really our judge wants to know functional limitations on activities
of daily living, that's right. He wants to tell me
about the eighty ls.
Speaker 1 (10:46):
That's what he's right.
Speaker 2 (10:47):
And there are basically six right and not to be extensive.
It's feeding yourself, clothing yourself, transferring, ambulating, and and sometimes
even those are okay. But if a person can't handle
their finances, like they couldn't balance their checkbook or correct
write a check and know what they're doing or remember
what they're doing, or they couldn't make a sound medical decision,
(11:12):
a lot of it comes down to that.
Speaker 3 (11:15):
Yeah, and you'll see them, you know, you see a
pattern of poor financial decisions, honestly, And when I was
with the Mental Hygiene Legal Service, we saw a lot
of elderly persons in need of a guardianship who would
fall victim to these financial scams, yes, you know, withdrawing
large sums of money from the bank sending it to Yeah,
(11:38):
we had a couple of somewhere by way of Atlantigeria,
Nigeria by way of Atlanta, convinced that there's going to
be a mail order bride on the way. Stuff like that.
Speaker 2 (11:55):
Some of them said, king whatever needed alone, right right,
And that sounds you know, so realistic.
Speaker 3 (12:00):
Yeah, close, way beyond miss miss bills. But I think
that's where it starts, is poor financial decisions on the
on the properties management side, absolutely, and then yeah, personal side,
it's you know, person's failing to dress appropriately for the weather.
They they could wander from their homes. Now concern Alzheimer's
dementia a lot of cases, and those are the sad
(12:23):
cases too.
Speaker 2 (12:24):
Absolutely, So I think that's a good place to take
a break. We'll take our first break here, we come back.
We'll continue to talk about some wrinkles and aspects of guardianship.
Amaron Connor from Piro Connor Strauss. This is Life Happens Radio,
and we'll be back right after this.
Speaker 1 (12:41):
Welcome back to Life Happens Radio.
Speaker 2 (12:43):
Aaron Connor, Piro Connin Strauss, joined by our newest associate,
Brent Stack, working in the litigation department, and we were
talking about guardianships because that's where our expertise lies. Certainly
that in the litigation arena generally after Sunday, though, I do.
(13:03):
I am thinking about submitting a guardianship application for the
New York Giants. It does seem that they're incapacitated in
some way, shape or form. Fortunately, Yes, yeah, so, I
mean maybe maybe for John Marra, I mean, would not
be the first NFL owner to advent suit.
Speaker 1 (13:24):
Not that long ago.
Speaker 2 (13:25):
Tom Benson, who owned the Saints, I'm not sure if
he still owns the Saints. He was alleged to be
incapacitated by his kids. That didn't work out well for that. Actually,
there's also one filed against the Houston owner too, more recently,
but it's so wild, I mean. And now there's a
whole series about what happened with the Clippers, right, I
(13:48):
have not watched that yet, but I think I will
add that to the list. So guardianship happens to everybody.
It does live long enough, and you can plan.
Speaker 1 (13:59):
To avoid it, right and you know, doing a just
a basic power of attorney and health care proxy have
a lot to do with that.
Speaker 2 (14:10):
Absolutely, they're not complete fail safes, but they're they're pretty
good insulation and way cheaper than doing a guardianship, way cheaper.
I've done several guardianships where people didn't name a backup
on a document.
Speaker 1 (14:26):
My husband and wife just appoint them.
Speaker 2 (14:28):
You know each other, and they die at different times,
and the other person becomes incapacity they don't have an agent.
Speaker 3 (14:36):
Oh a lot of times the the agent becomes incapacitated
while serving.
Speaker 2 (14:42):
That's also that has happened. There's also bad acts by fiduciaris, right,
So people who don't do guardianship work will often call
me and say, why are you bringing a guardianship in
this matter? There's a power of attorney or health care proxy. Well,
that's not the beginning and the end of the story.
(15:06):
There are other avenues, but those are much slower. Like
if you want a remedy for a power of attorney,
you can demand an accounting for a power of attorney,
and you can do a turnover proceeding to get things back.
That's all kind of a long run. And if you
get a pointed guardian you can do those things anyway,
but at least you can fix them asap.
Speaker 3 (15:26):
Correct. Yeah, And oftentimes in the order itself, right, the
court will dissolve of the power of attorney if there
are bad acts and if.
Speaker 2 (15:35):
Right and that's not working, if you're alleging that the
burdens on you. Right, So the statute is eighty one
to twenty nine. If you can show a violation, violation
of fiduciary duty, then that person will be knocked out. Now,
there may be other people down the line, right, but
the only way to knock them out is through a hearing.
The fastest way to get a hearing is really in
(15:57):
a guardianship.
Speaker 3 (15:58):
Really is it's a special like I said, and I
think our courts typically are going to once you file
your order, show cause and petition, probably going to turn
that around in forty five days or less, which is
light speed and litigation.
Speaker 1 (16:14):
Correct.
Speaker 2 (16:17):
So people tend to think of power of attorney or
health care proxy is a be all end all.
Speaker 1 (16:23):
It's not.
Speaker 2 (16:24):
But we want you to have them because you really
can't avoid this problem ninety nine percent of the time.
Speaker 3 (16:30):
Absolutely, if they work. If they're working in terms of
the agent appointed in each instance power of attorney, typically
that's going to be your your property agent, as long
as they're managing your funds properly and no signs of
abuse there or neglect. A lot of times courts will
(16:51):
see that as a sufficient vehicle on the property management side,
and with your health care proxy, as long as they're
making healthcare related decisions in the best interests of the principle.
Speaker 1 (17:03):
Right and not themselves.
Speaker 3 (17:04):
That won't be. That won't be court would be hesitant
to a point a guardian in lieu of those two
actors if they're acting in good faith and you know,
maintaining their fiduciary capacity.
Speaker 2 (17:19):
So one of the standards we rush up against a
lot is that guardianship has to be the least restrictive
alternative correct, right, which.
Speaker 1 (17:28):
Is not a small burden.
Speaker 2 (17:31):
And so what that means is if a person has capacity,
sometimes these cases resolved by them doing a power of
attorney or a health care product, right, And it may
be appointing somebody else, it might be just doing one
in the first instance.
Speaker 1 (17:44):
Right. So one of the kind of interesting things.
Speaker 2 (17:49):
And I think on our end, is that if you
are alleging mom or dad is incapacitated, I can't really
meet with mom or dad, right, because then I'm going
to have a conflict, abs.
Speaker 1 (18:00):
I have to take you at your word.
Speaker 2 (18:02):
Right, If you're successful, you can get repaid for mom
or Dad's assets.
Speaker 1 (18:06):
No guarantee of that.
Speaker 2 (18:08):
You're going to be on the hook at least in
the first instance for that legal fee. But I can't
do that. People come in, they're like, well, can you
evaluate them? If I do that, I'm out right and
I'm generally not going.
Speaker 3 (18:20):
To be interesting of the Mental Hygiene Legal Service appointed counsel.
Speaker 2 (18:24):
Right, So I'm going to astor I'm going to ask
you questions about you know, do they know who you are?
Do they know where they are? Are they managing their finances?
Are they, you know, taking medication going home.
Speaker 1 (18:36):
On their own? Right?
Speaker 2 (18:37):
Can they drive? Are they becoming disoriented? Do they have
proper in home care? Because that's a big part of it.
You know, the last thing we want to do is
take someone from their house, right, But sometimes that's the
only answer. If they're not letting people in, they're not
making good decisions, we we have to place.
Speaker 3 (18:57):
Them well, and I think you I think in your
experience also, you see a lot of these people they
due to their functional limitations and their inability to thrive
in the community setting. A lot of times they find
themselves in either an emergency room, yes, or on a
general floor of a hospital. That's where a lot of
(19:19):
it happens, and not really receiving medical care.
Speaker 1 (19:21):
Right because they don't need it. It's custodial care.
Speaker 3 (19:23):
It's custodial care because a hospital has a duty to
safely discharge all all patients, right, And sometimes that becomes
a problem because they know the person can't go home
because they're not safe at home, they don't have proper
in home care. So that's when a facility will will
(19:45):
hire someone like us to apply for guardianship and then yeah,
if you can restore someone to the community in their home, great,
If not, you have to look at long term care,
the skilled.
Speaker 1 (20:00):
Nursing, and sometimes the long term care is a bridge. Right.
Speaker 2 (20:04):
We've done this several times where right now there's there's
not a home care plan in place. There may be
modifications to a house that need to be made. Sometimes
the house just needs to be cleaned up, sadly because
it's gotten to a state where it's it's full of
stuff and that kind of thing. So we are on
(20:26):
that rare team. Occasionally pulling people out of nursing homes
and putting them back in their house, right, which is unusual,
but it does happen.
Speaker 3 (20:34):
It has. We've worked on a few cases together where
it's happened, which is it's very satisfying initially.
Speaker 2 (20:40):
Yeah, to see litigation is hard as a to take
a lot of personal gratification for because it's a difficult area, right,
and people are in bad situations. They're not themselves, you know.
We always feel like we're doing the right thing. There's
no one hundred percent know that. But when we get
(21:03):
people reunited or we are able to get someone back home,
it's a clear victory and it really keeps you going
and keeps you.
Speaker 3 (21:13):
It really does.
Speaker 1 (21:14):
Yeah.
Speaker 3 (21:14):
So I think we had one recently where an individual
who was in a facility that he could not communicate right,
and we were able to reunite him with his family
albeit and I don't know in the South, correct, yes,
but you know they had a plan in place to
care for him at home and he was able to
(21:35):
leave a nursing home. Yes, extremely rare.
Speaker 1 (21:38):
Yes, that that one.
Speaker 2 (21:39):
I think everyone was emotional about, even the judge a
little bit. And you know, the bad actor didn't even
bother to appear, right, absolutely, so it's not really much
more of an admission hand right, And we actually had
to write to get the wallet back and the cell.
Speaker 1 (21:59):
Phone and shockingly they actually came back.
Speaker 3 (22:02):
Yeah, I mean, like you said, these these uh, when
litigation does occur, it's everybody's pretty much having their worst day,
the worst time of their life, and emotions are are
definitely high.
Speaker 1 (22:17):
Right. Yeah.
Speaker 2 (22:20):
I think as Brent has seen and he's now continuing
to see, you can't get rid of your family, whether
you have a relationship with them or not. There are
times in life where it fortunately keeps rearing its head,
absolutely right, whether it's at death, whether it's towards the
end of life, end of life decisions, or end of
life care. It is kind of amazing how how many
(22:42):
people don't have an active role, but they're usually parents,
and then when it's they need help.
Speaker 1 (22:48):
Or they've they've passed away, they're they're looking for something, right, and.
Speaker 2 (22:54):
That's probably never going to change. So as much as
you can, you won't need us. One way to avoid
us is trying to get along with your siblings.
Speaker 3 (23:05):
Right.
Speaker 1 (23:05):
It's not always possible, right, I.
Speaker 3 (23:07):
Mean, I've had cases where we even myself and the
Court of Evaluator met with a large contingent of family
members and said this, the AIP is not going to
live until this litigation is resolved. Right, we want, we're
urging you to come together.
Speaker 1 (23:28):
And even if it's just in the short term.
Speaker 3 (23:30):
Just in the short term, because by the time this
is done being litigated, she will have passed. And in
fact that did occur. But that's I mean, the personalities
and the emotions are so strong in these cases that
that's right. You can't get through to people. But yeah,
you're right. The best way to do it is to
get along with your let bygones be bygones and just
(23:52):
you know, try to do the right thing.
Speaker 2 (23:54):
All right, Well, we're coming up on the news. We're
going to take that break. This is Life Happens Radio.
Aaron Connor, Piroicon and Strauss' Connor and Strauss joined by
Brent Stack, associate in our litigation department.
Speaker 1 (24:05):
We've been talking guardianships because that's what we both do. Obviously,
we do a state and trust litigation and brend is.
Speaker 2 (24:15):
Knee deep or way deep probably more appropriately in that
as well. Haven't appeared in some cases resolving one which
was good at least one anyway, I know one. Yeah,
And people are often surprised that I want to resolve
cases like, look, I'm going to give the marketing department
(24:40):
some credit and lose some credit and some of it
myself some credit and other people. We are a marketing machine.
We have a lot of cases, a lot of files.
We try to vet our files as well as we
can so to make sure that we're only taking good cases.
It's not an exact science, but we're pretty good at it.
Occasional clunker here or there.
Speaker 1 (24:59):
But so.
Speaker 2 (25:04):
I don't need to hold onto your case like because
there are attorneys out there who will try to hold
onto your case right because they need to bill it,
they need to build it.
Speaker 1 (25:12):
We are not those.
Speaker 3 (25:13):
We'd rather not spin our wheels.
Speaker 2 (25:15):
Correct, and our reputation is one that we're going to
try to get it done because there's a lot of
emotional baggage in these cases too. And when I am
talking to somebody about what the strategy may look like
in a consultation, I'm talking about there is an emotional
burden to carry too, and it's going to be usually
(25:36):
a couple of years before we're done in a trust
or estate litigation. Right, a guardianship is going to happen
faster than but you have to be kind of weigh
that as well.
Speaker 1 (25:48):
Right, And if you file.
Speaker 2 (25:49):
A guardianship alleging that mom or dad is incapacitated and
they're not right, it's a pretty big roll of the dice.
So it's not going to help your relations no, right,
And it may may lead to negative consequences.
Speaker 3 (26:04):
Right.
Speaker 2 (26:04):
They may change their planning documents to you know, lessen
your share or take you out completely. So all of
those things kind of have to be thought of and
to be fair, a lot of the estate litigation we do,
they're not our files originally, they're not our planning files.
Speaker 3 (26:25):
They're not our wills ideally.
Speaker 2 (26:28):
Right, well, I mean once or twice they are, but
it's not from anything that we did. It's just from
there's a crazy sibling out there who to do this.
No matter what we do, we've never really had to
litigate our own documents, and because we've watched what other
people have.
Speaker 1 (26:42):
Done wrong and.
Speaker 2 (26:44):
If needed, we've altered our documents to take care of
those types of things. And the documents that end up
being litigated are maybe incomplete, meaning that they're they might
appoint only one executor in a will or one trustee,
or there may have been money left to someone who
(27:06):
passed and then not a contingent beneficiary. Oftentimes they are
done last minute and people are forgotten somehow.
Speaker 3 (27:18):
I think we've got a few of those right where
there was a pretty comprehensive will and other maybe trust
documents way back when when there was time to sit
and plan and and really do it right. And then
a lot of times towards the end of life we
see these I don't know, a good two or three
(27:40):
page will pop up, and you're right. Oftentimes people get
left forgotten, yep. And that's where we come in to litigate.
Speaker 2 (27:49):
And oftentimes those documents are done by firms that aren't
really estate planners.
Speaker 1 (27:56):
They might be a solo person, they might be kind
of a I don't know, personal injury.
Speaker 2 (28:03):
Workers COM, some kind of state PI or real estate shop, right,
and I'm sure they're really good at those things.
Speaker 1 (28:11):
But we don't do those things.
Speaker 2 (28:13):
Right because we're really good at this, and that's important
and it really matters because you don't know what you
don't know, right, And we have seen surprisingly people with
a lot of assets, do nothing. We're close to nothing, right,
(28:34):
one of the craziest ones I've ever saw.
Speaker 1 (28:36):
And this wouldn't be most people, but mom did like.
Speaker 2 (28:40):
No planning and had a lot of money, and we
were trying to get some estate tax planning done before
she died. We couldn't, so the daughter then wrote a
personal check for twelve million dollars, a personal check for
(29:00):
twelve million dollars.
Speaker 1 (29:01):
To the government for a state tax.
Speaker 3 (29:03):
Wow.
Speaker 2 (29:04):
Yes, so obviously you have to have a significant amount
of money to have twelve million dollars in tax. But
I've also never ever seen a personal check for twelve
million dollars before.
Speaker 3 (29:13):
Surprising process. Right, So no, but that is evidence of
poor planning for sure. Could have been some of it
could have been avoided.
Speaker 2 (29:22):
I don't know, I can't speak to don't really recall
if all of it could have been avoided. You know,
you get to a certain level. It's kind of hard
to avoid all of it unless you're doing planning over time.
But certainly in large part that could have been avoided.
And honestly, some guardianships that we've done have centered around that.
(29:42):
Many years ago, we had one out a little west
of here, which was a very wealthy family, and surprisingly
Mental Hygiene was appointed as the court evaluator in that one.
That was somebody from a different office though, and she
was great, But it was kind of an odd case
for Mental Hygiene given that millions of dollars were at stake, right,
(30:07):
And ultimately the undercurrent of that case was trying to
get Dad out of New York, so he was not
a New York resident and had to pay New York
estate tax right there probably was almost certainly was federal
estate tax, although that wasn't really what we were focused
(30:30):
on because we didn't represent the alleged incapacitated person and
we could only deal with what was in front of us, right,
But we were ultimately successful in keeping that person in
New York because that's where he had expressed that he
wanted to be, whether he was going to pay a
state tax or not. Frankly, and if planning is done
(30:51):
most of the time, a lot of that can be avoided.
Speaker 3 (30:54):
Well, I think you see people, you see, unfortunately family
members stepping into these fiduciary roles with I guess an
ulterior motive of preserving assets for distribution for themselves on
the death of the person.
Speaker 2 (31:13):
Absolutely, and we're not necessarily against that, right because we
do do guardianships to get medicave planning right. Or we
need to do what's called a gift in note, or
we can save half of it because the person's already
in a nursing home at that point. What we're really
doing is a calculus to determine what the net benefit is. Right,
(31:33):
if you're going to spend fifteen thousand on a guardianship
and you're going to save you know, twenty five thousand
by doing a gift to note, well, probably not worth
it ultimately, right, But oftentimes people are going to be
able to salvage two hundred and fifty three hundred.
Speaker 1 (31:48):
Thousand dollars through that strategy, then it's worth it.
Speaker 3 (31:50):
And I think that's important to note is that a
guardian does have the authority to enter into contracts pretty
much do anything that an individual could do for themselves,
other than placement in a psychiatric facility. That's kind of
the one area where you can't because it's obviously a doctor.
(32:10):
A psychiatrist has to make that determination that someone.
Speaker 2 (32:13):
Needs, right, and that is the question we get often,
and it usually involves young people not always right, could
be a sibling, right exactly. Yeah, so that's a trickier
one that we really can't help with because that, in
my opinion, and this is just speaking for myself, is
that system doesn't really work very well. Obviously, it's important
(32:35):
for the person who may be imprisoned isn't the right word,
but you know, impatient right to be able to guard
their rights. But I think, and this is similar in
the guardianship realm, that the pendulum was so far it
was too easy to put somebody in a facility, or
it was too easy to become a guardian. The pendulum
(32:56):
doesn't swing to the middle, it swings all the way
kind of to the other side, and then it becomes
more difficult to get somebody who actually needs to be
into a facility, even if it's short term into a facility,
or in our case, sometimes it's hard to become get
somebody to become a guardian when we need one because
(33:18):
we just can't access records.
Speaker 1 (33:22):
Exactly.
Speaker 3 (33:22):
And and again, you know, in our petitions we focus
on functional limitations, but it's it's good to have the
why they have functional limitations?
Speaker 2 (33:35):
Why right, well, and can't say this doctor did this
or exactly.
Speaker 3 (33:39):
I mean, I have a petition, but it's not really
evidence of that, right, right, right, can't prove it. And
it's important to note also that you know, when when
drafting a petition for guardianship, we will seek from the
petitioner information about you know what, in what areas can
(34:01):
this person continue to retain their their autonomy and authority
to make certain decisions on their own, and we can
ask that the guardianship order be tailored. That's right, you
said at the outset to be the least restrictive alternative
to this individual continuing to function individually. So it doesn't
(34:25):
You don't take all the rights away from someone who
just needs assistance with filling out forms to become eligible
for Medicaid, for instance.
Speaker 1 (34:36):
Right.
Speaker 2 (34:36):
So many many times where someone doesn't have enough capacity
to really handle their own affairs anymore, but they're not
so incapacitated that they don't know what's going on. We
are often to get a good guardianship on consent, which
is really the best.
Speaker 3 (34:54):
Way, right right, Someone acknowledging that they need some assistance.
Speaker 2 (34:57):
Right, they're called a person in need of a guardian
They're not technically determined and capacitated.
Speaker 3 (35:03):
Right, and then and the court will note on the
record that I make no finding of the capacity.
Speaker 2 (35:08):
And that's really the best situation because we if you're
putting on evidence, it's really kind of hurtful if the
person has any awareness, right, right, Yeah.
Speaker 1 (35:19):
We try to avoid that as well. Right.
Speaker 2 (35:21):
We try to come to a settlement that works, right,
that we can protect somebody, and that is very important.
It's not necessarily that we get everything that we ask
for in a petition. I know that when I draft
a petition, in fact, I may ask for a few
things that I know I'm not going to be able
to get, so I can give them away, right, as
part of what we're doing, and we do really try
(35:46):
to have a good relationship with the people on the
attorneys on the other side, so we can.
Speaker 1 (35:52):
Get this done.
Speaker 3 (35:53):
Absolutely.
Speaker 2 (35:53):
You know, very very few of them are scorched earth
because it just doesn't work, no, And it.
Speaker 3 (35:59):
Is difficult to put on a case as a petitioner.
You have the burden you're alleging that someone is incapacitated
and you're going to incite factual evidence of their inability
to function, and that's kind of awkward and embarrassing.
Speaker 2 (36:21):
Right, And most of it's given through live testimony, again because.
Speaker 3 (36:26):
I'm a family member from someone close.
Speaker 2 (36:28):
Exactly, because you can't nine times out of ten or
probably ninety nine times out of one hundred, medical records
are going to be blocked. You may be able to
get some bank statements to recipoena showing that extra wise happened.
But for the most part, you're going to rely on testimony.
Could be testimony of the court evaluator, right and what
(36:49):
their investigation is. Sometimes I'm a listening that for support.
Sometimes I'm listening it so I can show that it's
deficient right right. All varies on the situation. There are
a lot of really good court evaluators out there.
Speaker 1 (37:07):
I know.
Speaker 2 (37:07):
The court has routinely asked me to get on the
list to be an attorney for a legend and capacitated people.
Speaker 1 (37:14):
I have declined to.
Speaker 2 (37:15):
Do that because I really don't don't have the bandwidth
to do that, and I want to be in control
of what cases I'm taking.
Speaker 1 (37:25):
And what I'm not.
Speaker 3 (37:26):
It's a very involved role.
Speaker 2 (37:29):
Never really know what you're walking into. No, I'm sure
there's some times where it was not great.
Speaker 3 (37:35):
So yeah, and you don't know how long it's going
to take, but it is. It's very work intensive. You
have to gather extensive information and you have to submit
an extensive, comprehensive report to the court exactly, all right, Yeah,
I mean it's it's important to keep in mind that
you know, the person in need of a guardian is
a person exactly. I think you know, before I came
(37:58):
to Pierre Connor and Strauss, I recognize that right away that,
all right, this is a shop that does it right
and doesn't lose sight of that. And I think that's
important because you're talking about a family member here.
Speaker 2 (38:13):
Absolutely, I'm trying to put it back together the best
we can, right. I remember a long time ago somebody
called and I said, well, I certainly see where you're
coming from.
Speaker 1 (38:23):
I do think that you could do this right.
Speaker 2 (38:26):
But what you got to understand is this kind of
like a nuclear solution. Once you drop this bomb, you
can't really put it back right. And I think ultimately
they didn't go forward, and whether that was it, I
don't know, right, but I'm a very upfront person.
Speaker 3 (38:45):
Yeah, I mean, you got to think of the family
dynamics going forward.
Speaker 2 (38:48):
Absolutely, So I think that's a good place to take
our last break. When we come back, we'll continue to
talk about litigated items. Aaron Connor, Pure O'Connor and Strass
Welcome back to Life Happens Radio.
Speaker 1 (39:01):
Thank you for listening.
Speaker 2 (39:02):
I'm Aaron Connor from Pure O'Connor Strauss, joined by Brent Stack.
We are talking all things guardianship, and we've really just
been focusing on eighty one, right, which are adults usually
doesn't have to be There is another form of guardianship.
It's called seventeen A.
Speaker 3 (39:21):
Of the Circuits Court Procedure Act.
Speaker 1 (39:23):
Right, and Brent, why don't you give people kind of
a thumbnail of that.
Speaker 3 (39:27):
I think a lot of people refer to it as
the and I don't know if it's proper or not,
but the parents guardianship. It's typically you've got someone an
individual with special needs becoming an adult. So someone on
the verge of turning eighteen whose parents have throughout their
(39:47):
life been able to manage their affairs simply because they're
a parent. But as soon as that individual turns eighteen,
they're an adult now and technically a parent can no
longer even access their medical records. So to ease in
that transition, if you've got someone with special needs who's
(40:08):
going to need help. They're going to now need a guardian,
and typically those are developmentally disabled or delayed individuals, or
individuals who suffer a traumatic brain injury technically before the
age of nine. I don't know why the cutoff.
Speaker 1 (40:26):
Is there, but it's a weird statute.
Speaker 3 (40:30):
It's different than you know, people who later in life
becoming capacity for medical reasons. It's meant to be easier.
It's meant to be easier, which has.
Speaker 1 (40:40):
Gotten some criticism over the years.
Speaker 3 (40:42):
Too right, because unlike Article eighty one, a seventeen eight
guardianship really cannot be tailored. It's kind of an all
or nothing. It's called plenary powers of guardianship is really
the only decree except for in some courts you will
see you will see a court who kind of chops
(41:03):
up a seventeen eight guardianship as you would in eighty
one and say, okay, what help, what assistance does this
person need? Because we're only going to order that the
guardian be able to exercise those.
Speaker 2 (41:16):
And that means you've got a good judge generally exactly nuanced,
right exactly, And in the seventeen A arena, things tend
to move a lot slower.
Speaker 3 (41:26):
To they do. They do, Yeah, I mean it's it's
a simple petition. It's often not brought by ordered show cause.
And as you know, in order to show cause can
really accelerate when you file papers, serve papers to when
you're in court and an article Lady one guardianship is
required to be commenced via ordered show cause in seventeen
(41:49):
A realm A lot of times you have pro say litigans.
Speaker 2 (41:51):
Yeah, I was just going to say that there's virtually
no chance that a pro say person could do.
Speaker 3 (41:55):
An article anyone, Absolutely not, And I don't think I
actually think that, pursued to court rules, an attorney is required. Yeah,
I don't think you can proceed pro se.
Speaker 2 (42:05):
And it would be it would be a very bad
idea even if you can, very.
Speaker 3 (42:08):
Bad and the court is going to let you know
that on day one.
Speaker 2 (42:10):
Yeah, seventeen A can be done without an attorney. It
can be, But again I wouldn't recommend it because it's
very it's going to slow everything down.
Speaker 1 (42:20):
It's a very form intensive.
Speaker 3 (42:22):
It's very form intensive, which is why parents can do it.
It's it's also the statute requires that every seventeen a
petition be accompanied by two physicians, correct certifications detailing the
individual's functional limitations, which makes it very different from anarchically
(42:46):
one Yeah, like you said, where you can't submit and
a lot.
Speaker 1 (42:49):
Of times we only have one doctor. Right, this becomes
a problem, right, right.
Speaker 3 (42:53):
Yeah, you've got to You've got to find two doctors.
They've got to do more than just checkbox is because
this is an application where you can check boxes, Yes
the person is developmentally disabled and yes I believe that
it's going to be permanent and they're not going to
regain capacity at some later time. That really gives you know,
(43:17):
the court and the litigants very little information about what's
really going on here.
Speaker 1 (43:22):
Right.
Speaker 2 (43:22):
So recently I had one where the parents came to us.
They said, our son needs a guardianship, right, he has
this whatever it was, and I said okay, and then
we talked about it and they're like, no, no, no,
can't do that, he can't do that. And one doctor
completely agreed with them and the other doctor did not,
(43:45):
and that really made it difficult.
Speaker 1 (43:47):
Absolutely. So we could have maybe continued on down that.
Speaker 2 (43:51):
Road and tried to tailor it, but I don't think
we're ultimately going to get there.
Speaker 3 (43:58):
Well, like you said, you need a willing judge right
in the first place.
Speaker 2 (44:02):
And I just finally said to this doctor, well, in
your opinion, this person would understand a power of attorney
in a healthcare proxy. And the doctor said yes. So
that's ultimately what we ended up doing. But I can
tell you that that is the first seventeen I I've
ever had resolved that way. Yeah, I had eighty one's
(44:22):
resolved that way.
Speaker 3 (44:23):
I've seen some go that way, where I guess in
my experience, oftentimes parents will have a different view of
their child's functional limitations.
Speaker 2 (44:37):
Especially if they're divorced. Then exactly, I mean that can
be a huge wrinkle.
Speaker 3 (44:41):
And then say, for instance, the school or doctors, Yes,
a lot of times, a lot of times parents and
other professionals are asked to fill out almost identical surveys,
and a lot of times the parents assess their child's
functional love much much lower than say, for instance, a
(45:03):
school will so a lot of times in seventeen a's
you will you'll see or maybe even if you're representing
the individual, a school will reach out to you and say,
I know what's going on. This person doesn't need a
guardian right, and that's when you know you've got to
have those serious talks with the family and say, hey,
(45:23):
let's do a power of attorney and healthcare pricing instead.
Speaker 2 (45:26):
And a couple of cases I've had where the parents
file the seventeen A and essentially the judge was like, no,
not going to happen.
Speaker 1 (45:37):
Right, this should be in eighty one.
Speaker 2 (45:40):
There's that also, right, but there's no legal requirement for
it to be one or the other. Right, I file
in eighty one when I think it's better. It gives
us more flexibility, you know, But it's it's more work.
Speaker 3 (45:56):
It is so, and it's more expensive for the clients.
Speaker 1 (45:59):
That's right.
Speaker 2 (45:59):
We have to have that discussion. But sometimes it's better.
And we've filed eighty one's for developmentally disabled person where
there's a conflict between the parents.
Speaker 1 (46:11):
Yep, multiple times.
Speaker 2 (46:12):
We've done this because they're not going to get on
the same page for a seventeen A. There's no way
really to fix it that problem in a seventeen A,
so we have to go in Supreme Court and do
a guardianship and those tend to be uglier, unfortunately, because
when people have divorced, those feelings are probably still around.
(46:37):
Certainly when it comes to the child's care and upbringing,
there's you know, a lot of I'm right, you're wrong
on both sides, not on one side or the other,
but on both sides. And the two cases that I'm
thinking of were especially difficult because the incapacitated person could
not really communicate, right, couldn't tell us where they wanted
(47:02):
to be, whether they were really happy or not. You know,
may in some way indicate they want to see both
their parents. Shocking, right, shocking.
Speaker 3 (47:12):
Well, I think you're talking about these cases where you've
got parents who are basically addicted to the family court process.
Speaker 1 (47:18):
It's true.
Speaker 3 (47:19):
And and now now the individual, now the child's an adult,
and so now they now they litigate in a guardianship, right,
And it's really.
Speaker 1 (47:28):
Because there really is a need for a guardian there,
they're a.
Speaker 3 (47:30):
Need for a guardian, right. But essentially they're they're fighting
over custody.
Speaker 1 (47:35):
Correct, it's adult custody.
Speaker 2 (47:37):
And I've had judges say to me, you can't do
adult custody, and I said, well, there's really no other
way to do it. This person needs a guardian. We
construct a guardianship or because that's in the best interest
of the inpticipated person to see both of their parents,
you know, and unless they're in a way they can't.
Speaker 1 (47:54):
They're saying no.
Speaker 3 (47:55):
And I think we've seen cases where the court will say, okay,
let's facilitate a visitation schedule, which is not really something
that falls under you know, that Article eighty one guardianship umbrella.
But it's again, they're people and these are remedies that,
thank goodness, the court is willing to provide, right because
(48:18):
there's no other way to do it. So a lot
of times you can get somewhere you have with the
guardianship that you couldn't otherwise get to.
Speaker 2 (48:25):
You have to show that they're incapacitated, right, that's the
threat threshold issue. And ultimately you're going to award guardianship
to one or the other, but the other person can't
be out in the cold.
Speaker 1 (48:36):
Right.
Speaker 2 (48:37):
If you can't show that they're incapacitated, you're not going
to get to that point, correct, right, because the court
doesn't really have any more jurisdiction at that point because
there's no way for this person to consent. They don't
have to, I mean, and that is a common issue.
Speaker 3 (48:51):
The ability to consent is threshold.
Speaker 2 (48:54):
Yeah, And many times it's available and we resolve. Sometimes
it's available and we don't resolve, And that's.
Speaker 3 (49:01):
Sort of an that's it's tough for us as litigators
to know. I mean, we're not doctors, right, correct, We
don't know when an individual has the ability to consent. Really,
we can advocate one way or another.
Speaker 2 (49:17):
Well, you had to make that determination as a court evaluator,
exactly right.
Speaker 3 (49:20):
Exactly, and we can make a recommendation to the court.
We can say we believe they could consent, right, and
amount of times it comes down to the court, you know, exactly,
observing the individual and questioning a few questions to see
if they really do have the ability to consent.
Speaker 1 (49:37):
And guardianships, it's pretty typical that the court will question
the witness to.
Speaker 3 (49:40):
Some absolutely the court yeah, and in most cases that
individual has to be there, which kind of makes these
these proceedings as awkward, as we said, because you're bringing
up witnesses who are saying, you know, somewhat hurtful things, right,
the individual.
Speaker 1 (49:59):
You can't yourself anymore, you can't do these things. Nobody
wants to hear.
Speaker 2 (50:03):
So if you are an individual in that circumstance or
you need some planning, you need to talk about some
Medicaid planning. Please give us a call at the office
that's five Pine eight four five nine twenty one hundred,
or you can send an email to info at Piero
Law dot com. That's p I E R r O
Law dot com. And thanks for listening. This has been
(50:23):
Life Happens Radio. I'm Aaron Connor from Pierre O'Connor Strass.
Hope to see you back here next week.
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