The Wise and the Wary
Who can you trust? Deb hears this question over and over again in her professional practice as an elder law attorney and a fee-only, holistic financial planner. Let Deb teach you how to protect yourself and your assets from those who might not have your best interests at heart. [Editor's note: Deb no longer contributes to Silver Planet, but we have made her archived blog entries available as a service to our readers.]
Dad’s Doctor Can Declare Him Incompetent
Misconception #10 of “The 12 Biggest Misconceptions of Estate Planning Clients”
I sometimes hear this sentiment from children concerned about the
welfare of their parents. Dad just turned 87 and seems to be a bit
befuddled these days. Maybe he’s forgetting to take his medications
some days, he’s neglected his investment portfolio for the last few
months, or he’s bought one too many magazine subscriptions lately. The
son hopes he can just get a note from the sympathetic family doctor and
go to court for permission to take over Dad’s affairs, for his own
personal and financial good.
It doesn’t work that way. Taking over Dad’s affairs, though perhaps
well-meaning and lovingly protective, is actually a civil rights
matter. The son is asking the government to strip away Dad’s personal
liberty and property rights—his rights to life, liberty, and the
pursuit of happiness as Dad defines it—and hand over those rights to
another. The court will never do this merely because of a few
conclusions by a physician.
Instead, the law requires a hearing, with full due process rights and
protections. State guardianship and conservatorship laws dealing with
“incapacity” define the thresholds that determine when someone can no
longer make or communicate responsible decision making. Doctors’
reports that describe the specific extent of Dad’s cognitive or
physical limitations are submitted as evidence in the court hearing but
are never relied on as a final conclusion.
But what of the son’s report of Dad’s decline? Well, all of us forget
things from time to time, and many of my friends have been too afraid
to look at their investment statements of late! I personally subscribe
to more than 10 magazines, and frankly it’s nobody’s business. My point
is, well-meaning concern on its own should never be the basis for
stripping away anyone’s fundamental rights, no matter how old the
person is. The rights to respond, refute, cross-examine, and explain
are guaranteed by state law, protecting us from others’ opinions and
conclusions.
By Deborah Hoskins, JD, CFP
The Wise and the Wary Blog
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