As I’m sure many of you have heard, Casey Kasem and his family have recently been in the news regarding his brief disappearance and the legal proceedings surrounding his situation. Recently, the famous host of “America’s Top 40″ and the voice of Shaggy from “Scooby-Doo” was reported missing by his daughters, who had been seeking a conservatorship over Kasem. Kasem was confirmed as missing on May 12. At that time, his daughter Kerri Kasem began seeking temporary conservatorship over her father, in order to facilitate a search effort. Casey Kasem, the 82-year old DJ has been found in Washington state, a long distance from his home in California. The family has been at odds with Kasem’s wife, Jean, over visitation rights. Jean Kasem has been moving Casey Kasem from hospital to hospital, and refusing to let his children see him. Casey Kasem is suffering from Lewy Body Disease, which is a similar form of dementia to Parkinson’s Disease, and has left him barely able to talk.

Not surprisingly, situations where family members dispute with each other and remove the elderly member from the household is common. Generally, the motivation for these behaviors arise from money, but can also arise from one family member attempting to exert control over the actual person during his or her final days. Without the proper legal documents (Power of Attorney), the other family members must pursue a guardianship and/or conservatorship in order to prevent the person from being financially abused or taken advantage of by another individual.

Our office has had a number of cases similar to Casey Kasem’s current legal dispute, but specifically, one such case sticks out. Names have been changed to protect the innocent and guilty, and our office has express permission from all involved to tell this story. Several years ago, an elderly widowed woman named “Patty” lived in her home with a family friend, “Bill,” who was 30 years younger than Patty and had previously worked in the family business. Bill lived with Patty, paid rent to Patty, and did odd jobs around the house, as well as working on his own. Everything was fine until Patty’s family noticed suspicious behavior from Bill, specifically with Bill’s behavior towards Patty, as well as Patty’s increasing hostility and bizarre actions towards her own children.

Patty’s children were suspicious that Bill was taking money from Patty and that she might be suffering from dementia. Patty did not have a Power of Attorney document executed appointing her children as her agent, and thus, Patty’s children were essentially powerless in order to regain control and supervision over Patty’s finances. When Patty’s children came to our office, we recommended that they pursue a guardianship and conservatorship over Patty at the local circuit court. In order to file the petition for guardianship and conservatorship, a doctor’s medical evaluation is needed. The medical evaluation is completed by a medical professional who gives an opinion regarding the alleged incapacitated person’s ability to handle his or her own medical and financial affairs. Thus, a doctor visited Patty in her home and diagnosed her with dementia. Immediately after the petition was filed, Bill packed suitcases and took Patty to California, but not before stopping in Tennessee to marry her there. The marriage was performed by a judge and therefore, Patty and Bill were legally married. Bill was 52 years old and Patty was 86 years old.

As soon as this happened, Patty’s family hired a private investigator to locate Patty and Bill. The private investigator eventually found Patty and Bill living in a small apartment north of Los Angeles. At this same time, Bill was attempting to sell Patty’s house (presumably to keep all the cash from the sale for himself). However, the family learned of the sale 2 days before the closing date, and thus our office was able to prevent the sale of the house. Next, our office made arrangements to have Patty’s guardian ad litem to fly to California to meet with Patty. The guardian ad litem’s role is to ensure that the incapacitated person has someone to protect his or her best interests. The guardian ad litem performs an investigation for the court and files a written report to the court of his or her findings. In this instant case, Patty’s guardian ad litem reported that Patty was clearly incapacitated and in need for a guardian and conservator. After the presentation of evidence, review of the guardian ad litem’s report, and the doctor’s medical evaluation, the judge ruled that Patty was incapacitated and that our clients (Patty’s family members) are to be Patty’s guardian and conservator.

The day after the judge’s ruling, our clients flew out to California with their court order so that they could bring Patty back to Virginia and take proper care of her. However, when they arrived, they had learned that Bill had put Patty on a one-way plane trip to Germany the previous night. Yes, Germany. Apparently, Patty had several extended family still living in Germany and kept in contact with her, except that no one in America could be sure if Patty had even arrived safely into Germany. At this point, due to international law (and the lack of international law for guardianships), our office simply had to wait for Patty to return to the United States. Several months into her stay, Patty was admitted to a hospital where her doctor contacted her guardian and asked from him to come get her. The guardian flew over to Germany and safely returned Patty back to her home in Virginia. Patty eventually died a few years later, surrounded by her family and completely unaware of what had transpired during those harrowing months with Bill.

Overall, this guardianship cost Patty over $30,000, not including the funds that had been stolen or misused by Bill during that time he was with Patty nor the attorney’s fees for her marriage annulment in Tennessee. I’m fairly confident Casey Kasem’s current situation includes a hefty price tag for his legal fees and guardianship proceedings as well, not too mention the family tension that has resulted from his situation. The lesson of these guardianship horror stories is this: Make sure you have your legal documents in order (Power of Attorney, Advance Medical Directive, etc.) early, because once a guardianship proceeding becomes inevitable, you may lose your family members and large amounts of money or could result in a large dispute for years to come between everyone involved.

The Truth About Guardianship/Conservatorship: Separating Fact From Fiction

Guardianship and Conservatorship seem to be legal hot topics of conversation lately. The public at large has been made aware of the terms through such mediums as the #freebritney movement which is a push to “free” Britney Spears from the conservatorship her father has over her financial estate and the new Netflix movie “I Care A Lot” in which the protagonist in the movie is a woman who becomes the guardian and conservator for elderly individuals and steals their money (and dignity among other things). Several years ago the public was introduced to the term when radio host Casey Kasem was the subject of a guardianship fight between his wife and his children who alleged their stepmother isolated their father and would not allow them to have any contact with him. So, what is the truth? I am going to separate the fact from the fiction.

I can only speak about the laws in the Commonwealth of Virginia regarding guardianship and conservatorship. A guardianship is defined by Black’s Law Dictionary as “a guardianship in which the guardian is authorized to make all significant decisions affecting the ward’s well-being, including the wards physical custody, education, health, activities, personal relationships, and general welfare. A conservatorship (or guardian of the estate) is defined by Black’s Law Dictionary as “a guardianship in which the guardian can make financial decisions only about matters regarding the ward’s assets and property.” You may ask why this is even necessary; however, I am here to tell you it can be crucial.

Guardianships and conservatorships are generally sought in three circumstances. First, guardianships and conservatorships are filed for elderly individuals who suffer from dementia or some other form of debilitating disease which prohibits them from making decisions for their person and/or their finances AND they do not have an adequate financial power of attorney and/or health care power of attorney. If the person has a financial power of attorney and/or a health care power of attorney that is legally viable there should be no need for a guardianship and/or conservatorship as those documents are considered “less restrictive alternatives” to guardianship and conservatorship. Second, guardianships are filed by parents who have intellectually disabled adult children. In the eyes of the law, at the age of 18 all persons in the United States are legally considered adults. Some intellectually disabled adults; however, are incapable of protecting themselves due to their condition and need the continuing protection and advocacy of their parents or other family members. The final category in which guardianships and conservatorships are filed is for adults who are mentally ill and need the protection of a guardian or conservator because of his or her illness. Britney Spears was subjected to conservatorship of her estate after a psychiatric hospitalization in 2008 which is still ongoing 13 years later.

As stated above, if there is a less restrictive alternative to guardianship and conservatorship, that should be utilized first, and guardianship and conservatorship used as a last resort. As an estate planning attorney, I always urge my clients to plan for their incapacity AND their death. A financial power of attorney and health care power of attorney (called an Advance Medical Directive in Virginia) are as important as having a will or trust. If these documents are in place and up to date, there should be no reason for someone to petition the court to become a guardian or a conservator. Many times; however, the only alternative is guardianship and or conservatorship.

A guardianship or conservatorship in Virginia is filed by petition in the circuit court for the jurisdiction in which the alleged incapacitated individual lives. When the petition is filed, an order is also filed asking that a guardian ad litem be appointed for the alleged incapacitated adult. A guardian ad litem is an attorney certified by the Supreme Court of Virginia to represent such persons and is considered a quasi-officer of the court. The guardian ad litem will investigate the need for guardianship and/or conservatorship, serve the alleged incapacitated adult with the petition and accompanying documents, and will file a written report with the court. The guardian ad litem serves the alleged incapacitated adult with a notice of hearing and will go over the person’s rights one of which is to have his or her own attorney appointed. The guardian ad litem must make recommendations as to what is in the person’s “best interest” which may conflict with the alleged incapacitated individual’s view regarding the guardianship. In addition to the guardian ad litem order, a medical evaluation is filed as an exhibit to the petition alleging why the person is medically in need of guardianship and/or conservatorship.

A Notice of Hearing is required to be sent to at least three family members pursuant to the Code of Virginia. This notice includes a copy of the petition, the guardian ad litem’s Order, and the date, time and place of hearing. In the movie “I Care A Lot” family members were not made aware of the guardianship hearing nor was the alleged incapacitated individual: this could not happen under the laws of Virginia and most other states in the U.S.

At the guardianship or conservatorship hearing, the Court will hear evidence regarding incapacity including the medical evaluation, testimony by the petitioner, and the guardian ad litem’s written report. The burden of proof on the petitioner is what we call in the law “clear and convincing” evidence. Clear and convincing evidence is defined by Black’s Law Dictionary as “evidence indicating that the thing to be proved is highly probable or reasonably certain, the thing here being legal incapacity. This standard is higher than “preponderance of the evidence” but less than” beyond a reasonable doubt” (which is a standard only applied to criminal proceedings).

If a guardian is appointed at the hearing, the local department of social services is tasked with overseeing the guardian and the guardian must make a report to the department every year regarding their actions as guardian and update them on the welfare of their ward (the incapacitated individual). If a conservator is appointed, an attorney called a “Commissioner of Accounts” monitors the money collected and spent by the conservator through inventories and accountings which are to be filed by the conservator and reported to the court. In addition, most conservators must be bonded under a fiduciary bond which would replenish their ward’s estate should they misappropriate his or her funds.

So could a Marla Grayson snatch your granny’s money and throw her in a nursing home while spending all of her money in Virginia? Not a chance but it makes for one heck of a movie! What scares me more is granny’s sweet next door neighbor who wiggles his or her way into her life with the intent of stealing her money before the family has any idea granny may be suffering from dementia. What about the Nigerian prince or the other scam artists out there preying on the vulnerable and elderly? This scares me more than old Marla. I also believe that Kerri Kasem and her siblings would have been able to see their father had he been under a Virginia guardianship and conservatorship. Guardians in Virginia are prohibited from keeping family members from seeing their wards unless it would put the ward in danger. As for Britney, I would certainly hope the court in California requires her conservator(s) file accountings with the court as to how they are managing her funds. Guardianships and conservatorships are necessary tools for the protection of those who cannot protect themselves.