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Guardians: Being Your Brother’s Keeper

We are entering the time of year when families gather for holidays.  In each other’s company, we share memories, catch up, and re-connect.  We take stock of our many blessings and express gratitude.  These gatherings are a reminder of how we are bound to each other. Our relationships with family members and close friends, for better or for worse, make us who we are.  Around the holiday dinner table we see the faces of people who carried us during difficult times and the people we supported along the way. 

Simply knowing that we do not go through life in isolation is the greatest source of gratitude for most people.  Regardless of our financial resources or emotional strength, we don’t have to go it alone.  We cannot go it alone.  It is unavoidable that the beginning of life finds us in the care of other people, and the end of life is often the same. 

During holiday celebrations this year, maybe you will remember a friend or neighbor who has lost everyone close to him or her and look for ways to support and include that person.  Maybe you will contemplate how an aging family member will need support in the future. How we support one another is a defining feature of a great family or community. 

Public health data on the aging Baby Boom generation, the rise in dementia diagnoses, and the rise in diagnoses of such conditions as autism reveal that support for the most vulnerable among us will be an increasingly common aspect of everyday life.  It is coincidental, but worth noting, that at this time of year we also make choices about elected officials. When you cast your vote on Election Day, you will place trust in the policy makers and judges responsible for ensuring that the needs and rights of vulnerable people are honored and protected.

During this past week, a committee within the Pennsylvania House of Representatives held a hearing to examine guardianship.  When most people think of the government’s role in the life of a family or individual, they think of taxes, marriage licenses, divorce decrees, and the settling of a deceased person’s estate.  But if a person loses the mental capacity to make legal, financial, or medical decisions, the guardianship system is the safety net that ensures that life will go on for that incapacitated person.

Of course, planning for incapacity and the many kinds of support that will be necessary should be part of every person’s estate planning.  Unfortunately, most people procrastinate when it comes to making legal plans for the future.  Even if they have completed a durable power of attorney and advance health care directive, they may fail to keep it updated with changes in the law and changes in the family. 

In the absence of legal planning, many people experience a health crisis with no one legally authorized to pay the bills, deal with insurance companies, apply for long-term care benefits, or arrange for proper health care.  It does not matter when there are supportive family members or friends if those helpers were never authorized by a power of attorney to exercise the rights of the incapacitated person

The House committee hearing focused on legislation through the lens of preventing abuse, exploitation, and neglect. There have been well publicized instances of theft by professional guardians.  When an incapacitated person has no trustworthy family members or friends, a court may appoint a professional guardian to make every financial, legal, and medical decision.  While most professional guardians do extraordinarily important work with integrity, the few bad apples got the attention of the legislature and even inspired a Netflix movie called “I Care a Lot.”

The legislation currently under review would increase criminal background checks for all guardians, not just professional guardians.  A criminal history report from both federal authorities and the State Police would be required. Fingerprints would be submitted. Guardians would be required to prove their eligibility to work in the United States. A background check would need to be re-submitted every three years, all at the expense of those seeking to serve as guardians.

If you were an elected lawmaker, these may seem like sensible protections to ensure that no vulnerable Pennsylvanian will be victimized. But if you are the adult child of an aging parent, you may view this legislation as an expensive hurdle that invades your privacy and impedes you from caring for your mom or dad. If you are the parent of a profoundly disabled child who is approaching his or her 18th birthday, you are already carrying a hefty financial burden out of love for your child. In addition to special education plans and medical appointments, you would also have to prove to the government that you are not a criminal threat to your child.

The House considered a similar bill that would mandate the appointment of counsel for the incapacitated person. Certainly there are cases where a person disputes the conclusion that he or she is unable to manage finances and health care decisions. Before guardianship strips a person of the right to make these decisions, there should be some consideration of the need for an attorney to advocate for that person in court.  Current law allows the judge to appoint counsel in cases where there is a dispute about the guardianship or reason to believe that exploitation may occur. But disputed cases are rare in comparison to cases where family members are simply trying to care for a loved one.  In many counties, the cost for an additional attorney for the incapacitated person will be borne by the family.

Lawmakers and judges face a significant challenge in finding solutions that fit for every family in every part of a diverse state.  Given the drawbacks of the ideas under consideration, we would all be wise to vote carefully and plan carefully.

During holidays marked by gratitude and family togetherness, take a moment to consider how you will support those among you who become incapable of managing life’s responsibilities.  Consider how you will be supported during your life journey.  Legal planning plays a critical role in being our brother’s – or sister’s or mom’s or uncle’s – keeper.    

Patrick Cawley, Attorney