emergency guardianship appointed by an estate planning attorney in pennsylvania

Guardianship: It’s an Emergency and I Care a Lot…About Your Assets

I recently watched the 2020 Netflix film “I Care a Lot”, the story of a professional court-appointed guardian (played by actress Rosamund Pike) who bilks the assets of dozens of elderly wards. As a Pennsylvania estate planning attorney, I regularly represent family members, alleged incapacitated individuals (AIPs), and guardians. And nothing makes my blood boil more than discovering someone has taken advantage of an elderly or disabled individual via guardianship.

Pike’s character, Marla Grayson along with the help of a crooked doctor, has elderly individuals declared incapacitated, that is, unable to take care of themselves. Grayson is appointed as legal guardian and subsequently drains her wards’ assets for her own personal gain. Unfortunately, the exploitation of the vulnerable occurs more than we care to admit.

Does Guardianship Fraud Happen a Lot?

Well, it doesn’t quite happen according to the film. Director/writer J Blakeson took liberties with the legal requirements, but this isn’t a courtroom drama. Plus, Blakeson needed to make room for the sub-plot of the retired Russian Mafioso (played by my favorite Game of Thrones actor, Peter Dinklage). I’ll leave it at that before I give away any spoilers.

A petition must be filed for adjudication of incapacity and for the appointment of a guardian. Under Pennsylvania law, the petitioner “may be any person interested in the alleged incapacitated person’s (“AIP”) welfare”. This is a fairly broad definition and may include family, neighbors, area agency on aging, healthcare provider or other professional with a relationship to the AIP.

Here, Grayson’s relationship to Dianne Wiest’s AIP character, Jennifer Peterson, is unclear. Marla doesn’t appear to be representing anyone (agency or otherwise) interested in Jennifer’s welfare. As an aside, I would challenge standing, but where is the entertainment value in that?

In a real life situation, the petitioner must prove by clear and convincing evidence to a Judge that the AIP is incapacitated to become a guardian. There need to be specific findings of cognitive incapacity that has impaired the person’s ability to understand information, to make reasoned decisions, to effectively manage their financial resources or assure their own physical health and safety.

In the movie, Grayson submits a report by the crooked doctor (Dr. Amos, played by Alicia Witt) to prove incapacity. While this is permissible under Pennsylvania law, the “clear and convincing” part is skipped over in the film. The judge states the court would “let it slide” because it was an emergency hearing without questioning why the matter was an emergency. In PA, an emergency hearing is proper where it is apparent that the AIP is at imminent risk of irreparable harm, including severe financial exploitation, medical risk or risk of homelessness.

In Pennsylvania, Grayson would also be required to show that there is no less restrictive alternative to the guardianship. For instance, does the AIP have a Power of Attorney? If not, is she able to execute a Power of Attorney? Does she have support in the community?

Certainly, Ms. Peterson would argue she has the support of the Russian mafia to handle her affairs, and she appears quite capable of executing a Power of Attorney. In reality, a guardianships is a last resort because it deprives a person of his/her legal rights and restricts their rights to autonomy and self-determination.

In Pennsylvania, there are two types of guardians:

  • a guardian of the person is responsible for making personal, residential and medical decisions for the AIP.
  • a guardian of the estate is responsible for financial decisions, managing income and property.

So how does a person get deemed incapacitated and appointed a guardian against his or her wishes, without even being present in court? Fiction aside, in an emergency hearing, the 20-day notice period is typically waived, but required for the plenary hearing. The AIP has a right to counsel and if they can’t afford one, counsel will be appointed by the court. In an emergency hearing, there usually isn’t time to appoint counsel until the plenary hearing. The AIP is also required to attend the hearing unless there is a sworn statement by a physician that the AIP’s physical or mental health would be harmed by attending.

In this movie, all of this plays perfectly to Pike’s game. While we don’t get to the plenary hearing in the movie, one can assume that Pike’s character would manipulate a loophole in the law, and have the crooked doctor friend testify that the AIP would be mentally harmed, legally excusing her from participating at the hearing.

One would hope that this Judge would follow suit with Montgomery County Pennsylvania’s Orphans’ Court, and appoint a well-vetted experienced Orphans’ Court attorney to represent the AIP. That is the only way to ensure that their voice will be heard by the Judge.

How can you avoid guardianship scams like the ones in “I Care A Lot”?

Have a current complete well-drafted estate plan, with financial and healthcare Powers of Attorney. Choose your agent under Power of Attorney wisely. Make sure it is someone you trust implicitly and then name a backup agent, just in case. While I can’t promise that you won’t end up in a guardianship proceeding if you have a POA (your agent could go rogue, fail to act, or die and there is no backup named), the chances are extremely low if you have the proper documents in place.

You can find “I Care a Lot” on Netflix now.

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