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Guardianship is more than just bad judgement

  • Posted on: 19 September 2015
  • By: stella

Question: My father is 82 years old and has been living with his girlfriend, Barbara, for the past 4 years. Dad has told me many times that he has no intention of marrying Barbara; however, he does enjoy her company. I’ve talked with dad about having a will, durable power of attorney and health care power of attorney. He assures me that he has a will and I’m the sole beneficiary as his only child. I love my dad and want to take care of him and be sure that his wishes are followed. I don’t trust Barbara. She has been living in dad’s home and acting like she owns the place, although she doesn’t pay any of the expenses. Barbara wants to be dad’s power of attorney. I’m afraid that my dad (because he cares for Barbara) will let her be his power of attorney. Once she gets control of his finances, I think she’ll clean him out! What can I do to protect dad? I don’t want him to get mad at me.

Dear Concerned Child,

First, you have to realize that if your father is competent, he is capable of making his own decisions. Even if his decisions are “bad judgment” (in your opinion) and you don’t agree with them, he has the right to do what he wants. Assuming your father is competent, he may choose to name his friend Barbara as his agent acting under his power of attorney. As an agent under the power of attorney, Barbara has responsibilities to act in your father’s best interest and in accordance with his directions. If, after he made Barbara his agent, your father became incapacitated, Barbara would be obligated to continue dealing with your father’s assets for his care and his best interests. An agent may NOT engage in self-dealing or use the funds for her own benefit. If she were to do this, it would be a breach of her fiduciary duty to your father. You would be able to bring a civil action against her to remove her as your father’s agent and protect your father and his assets.

If your father is incompetent, then he cannot make (execute) a power of attorney. You should bring a petition before the clerk of superior court to have your father declared incompetent. You may face opposition from your father and Barbara.

The court would appoint a guardian ad litem to interview your father and make a recommendation as to his competency. If, based on testimony at the hearing, your father is declared incompetent, you may face a challenge from Barbara for appointment of general guardian for your father. The Court would look at different factors before appointing Barbara, you or a disinterested third party as general guardian or guardian of the estate of your father’s assets. The Court monitors the actions of a guardian and ensures that the incompetent person’s assets are used solely for the incompetent person’s care and interests.

Many times it is a question of bad judgement – putting an irresponsible person in charge of your finances or being blinded by love. Unfortunately, both of these situations do not make your father incompetent – just guilty of bad judgement. But stay involved in your father’s daily life. Many times, elderly people are afraid of their companions. If Barbara is living in your father’s home as his “primary caregiver”, he may feel obligated to do what she says, and he may be afraid of repercussions if he disagrees with her. Could this be the situation?

This is a fictitious situation to illustrate the principals discussed.