Many seniors and their families have been repeatedly reminded about the important role that legal directives like the power of attorney and living will play when it comes to ensuring that their interests are protected when they can no longer make decisions for themselves. Most people have assumed that once they have those documents in place, then their wishes have to be respected when incapacity strikes. If you’ve been relying on your advance directives to safeguard your interests, you might want to check again.
Atlanta’s WSB-TV Channel 2 news team recently took an in-depth look at how some advance directives are being ignored by probate judges. What they found should give families in the area more than enough reason to examine their own loved ones’ directives to ensure that they can withstand legal challenge and the whims of probate court officials. Their investigation revealed that there are indeed times when probate court judges simply override those directives and assign guardianship to others. And that can have devastating consequences not only for the incapacitated adult but for his or her loved ones as well.
Advance Directives: An Important Protection
In theory and in general practice, the advance directive is an important tool that provides families with the protection they need to guard against complications related to incapacitation. For years now, legal experts and health care practitioners have been urging people to make sure that they have these important documents in place before incapacity strikes. When they work, advance directives enable you to choose the person who will make decisions for you when you can no longer make them on your own. They also provide critical information and instructions about the types of treatment you are willing to receive.
Advance directives include documents like a medical power of attorney and a living will. The understanding has always been that properly-prepared directives are all that you need to ensure that your health care proxy wishes will be respected, and that should enable you to get the health care you desire while protecting your estate against the court costs and other expenses resulting from a probate court guardianship process.
What Channel 2 Discovered
Channel 2 reporter Dave Huddleston examined how guardianship is impacted by advance directives and discovered something that families should take into consideration when they’re dealing with these legal documents. While your loved one’s advance directive will generally be respected by Georgia’s probate courts, that’s apparently not always the case in states where private guardianship has a sizable presence in the marketplace. The case of Ernestine Franks serves as a perfect example of how where you live can have a major impact on the effectiveness of your incapacity planning.
At ninety-four years of age, Franks had the medical directives that we’re all told that we need. Both she and her loved ones probably assumed that she had all the protection she would need to ensure that someone she trusted made her medical decisions for her when she could no longer do so on her own. Ms. Franks’ directive expressed her desire to remain in her Florida home if she ever became incapacitated, and named her son Doug – a resident of Austell, Georgia – as her guardian. Under ordinary circumstances, the family should have been able to expects that everything would proceed according to plan.
After a dispute between Doug Franks and his older brother Charles, however, that well-laid plan was put to the test in a Florida courtroom – and the results were anything but satisfactory for the family. Because of the dispute, Doug Franks was declared by that court to be an unfit guardian. The court then voided Ernestine Franks’ advance directives, declaring that Doug could not have power of attorney or serve as his mother’s healthcare surrogate.
Instead, control of her well-being was handed to a private guardianship firm. Her assets were placed under the control of a bank. Her trust, worth millions of dollars, was suddenly being managed by strangers. The firms handling her assets and guardianship added insult to injury by limiting the brothers’ access to their mother, even requiring supervised visitation. And when those two firms eventually ceded control over Ms. Franks’ life two years later, the Florida court system turned around and named a CPA to serve as her guardian. The Franks brothers didn’t regain guardianship until about $2 million of her estate was consumed by private guardianship firms.
A Cautionary Tale for All of Us
While such cases are atypical, they should serve as a reminder of just how important it is to ensure that your advance directives provide the protections you really need. While private guardianship is not a concern in Georgia and state judges generally honor these advance directives, that is not always the case outside the state. Some states, like Florida, have robust private guardianship industries, and that desire for profit can cause companies to view incapacitated adults as little more than commodities. Probate courts in those states often need to make tough judgment calls when controversies are involved, and they sometimes turn to these private guardians when no easy resolution is at hand.
If you have a loved one who lives in another state, it is important to ensure that his or her advance directives really provide the protection needed to guard against court-ordered guardianship. Consult with an experienced elder law attorney to review your family member’s circumstances so that these types of unwelcome and devastating disruptions cannot occur. Your family’s well-being may depend upon it.
Guardianship proceedings throughout the various jurisdictions of the United States are anything but uniform, though efforts are underway to strengthen the protections afforded to families like the Franks. At the Fouts Law Group, LLC, we understand how scary that uncertainty can be, and that’s why we’re committed to helping you get the protections your family needs to guard against the most damaging aspects of incapacity and court-supervised guardianship. If you or a loved one have questions about the viability of your advance directives and want to review them to make sure that they’ll provide the protection you need, contact us online or give us a call at (404) 596-7520 today.
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