When can the state assume guardianship over you?

An 85-year-old North Texan resident recently went in for hernia surgery. Afterwards, according to local news sources, a doctor reported him to Adult Protective Services. The man was then placed in a psych ward and in the protective custody of the state. Adult Protective Services also removed his wife from their home, as apparently there were concerns that he couldn’t take care of her properly, especially after his hernia surgery. The couple wound up being relocated to a nursing home in Arlington.
The results of an upcoming psych evaluation will determine whether the man remains in state custody or can return home. Adult Protective Services are reportedly concerned not only about the state of care for his wife, but also whether he’ll be able to continue looking after himself. They also mentioned that his home showed signs of hoarding behavior.
What issues are raised by this complex case?
Many seniors want to retain their freedom and self-sufficiency for as long as possible. Balanced against their desire for independence is the concern that they will live an isolated life and neglect their health and other needs.
As seen by this case, it isn’t always clear when an adult can be considered incapacitated. The state can move to assume guardianship even when incapacitation may seem borderline. There are those who argue that the man in this case had his rights infringed upon when he was initially taken to the psych ward and placed against his will in state custody. What does incapacitation mean and how can it be proved? Under what circumstances can a judgment of incapacitation be disputed and overturned? Don’t hesitate to discuss these issues with an attorney.
The state can step in to assume guardianship when there aren’t alternatives in place. An important part of estate planning involves naming people who can handle your care in the event that you become incapacitated. Durable power of attorney and medical power of attorney allow you to name people who will act on your behalf in financial and medical capacities respectively.
In the event that this sort of planning hasn’t taken place or has fallen through in some way, the courts will need to assign a guardian. One individual may be a guardian of the estate, overseeing your financial affairs, while another individual may be assigned a guardian of the person, who oversees your medical care, housing, and other essential needs; the same individual can serve both types of guardianship functions. The powers of your guardian can also be limited in various ways to only those areas of your life for which you truly require assistance.
Court-assigned guardians are usually a spouse or next of kin, though there are various qualities that may render someone ineligible to be your guardian; this may include a history of criminal conduct or evidence that an individual may not have sufficient experience to care for someone. One additional estate planning strategy you can undertake is to designate a potential guardian yourself, before you need one; the courts will take your recommendation under consideration and most likely follow it if the individual named is eligible. Designating a potential guardian in your estate planning documents can also reduce the chances of a dispute among family members over who will assume your guardianship.
When the state itself assumes guardianship, this may be a temporary measure until another guardian is appointed. However, there’s the possibility that you may be under state guardianship until your death if no one else is found eligible to handle your affairs and care for you. To discuss these issues further, contact an experienced attorney who can help you come up with solutions tailored to your circumstances.

Arthur Conan Doyle’s Estate Flexes Its Muscles…But Comes Up Short Anyhow

If it seems as though Sherlock Holmes is strangely everywhere in popular culture these days, it’s not your imagination.

The 2009 Guy Ritchie film “Sherlock Holmes” seems to have ushered in a new era of interest in London’s most famous (fictional) detective. Both “Elementary” on CBS and “Sherlock” on BBC America have become hits, and sales of author Arthur Conan Doyle’s stories have ticked upwards.

Naturally, Doyle’s estate would like to cash in on this resurgence of interest.

There’s a problem, though; most of Doyle’s Sherlock Holmes stories are so old they are no longer under copyright and are in the public domain. That means other parties can use and adapt them without paying a licensing fee to Doyle’s estate.

In an attempt not to get cut out entirely, Doyle’s estate recently sued a literary agency that was publishing material inspired by 10 stories that do still enjoy copyright protection. Its argument was that since Holmes was mentioned in the copyrighted work, then he should still be protected against all uses (and a license fee would still be due). A judge found just the opposite, however, and opined that since Holmes is mentioned in work that is no longer under copyright protection, the character is free to be used without any license fee.

This is another example of an estate exercising valuable and important legal rights. Hopefully, this post and some of the other recently published posts illustrate why estates are valuable things to have after you’ve gone.

If you are interested in learning more about creating your own estate plan, please know you can contact us.