Power of attorney form can help prevent abuse of guardianship
• A bomb report in the New Yorker detailed how a woman allegedly took control of the financial and health decisions of foreigners in Nevada.
• Experts say the case represents a nightmarish scenario resulting from a lack of judicial review.
• Two easily accessible legal forms – which do not require a lawyer to fill out – can help prevent this type of abuse.
It can happen to anyone.
For 12 years, April Parks showed up to strangers, court documents in hand, informing them that they could no longer take care of themselves and that she would take charge of their financial and medical decisions.
Parks and his employees would identify these people at doctors’ offices and rehabilitation centers, arrive unexpectedly, take them away and take inventory of their belongings, according to a heartbreaking report from The New YorkerIt’s Rachel Aviv. Parks is accused of selling their property, cars and personal effects and of transferring their money to a bank account in her name. While charging them an hourly rate for its services.
But this alleged network was not made up of burglars or kidnappers. Parks was a legal guardian, appointed by a judge to care for over 400 people throughout his career, according to the New Yorker.
Now she and three of her associates – her lawyer, her husband and her business partner – were indicted, facing a total of 270 counts out of seven different criminal charges.
Guardians are expected to make decisions for those who cannot take care of themselves or their affairs due to their age, mental illness, or developmental disability. It is a role usually occupied by family members or friends. But in rare cases where no one is available or relatives are found to be unfit, a court can appoint anyone who has completed the process of qualifying as a state guardian, even if that person is a foreigner.
In Parks’ case, the ploy was allegedly implemented in such a way that relatives of the victims did not know what was going on until it was too late.
This really is the worst case scenario, Jenny Flom, a New Jersey lawyer at Cole schotz which focuses on trusteeship actions, told Business Insider.
“The whole system is not totally corrupt,” Pamela Teaster, director of Virginia Tech’s Gerontology Center, told Business Insider. “There are pockets of corruption, and when there are pockets of corruption, it is a total mess and it is totally unacceptable.”
The national system was much more heavily abused a few decades ago. The Associated Press helped expose the “troubled system” guardianship in the 1980s, said Teaster. Today, she said the laws surrounding guardianship vary from state to state, but are “very good” in general.
In New Jersey, where Flom practices, she said certain safeguards were in place. Relatives of a person are always contacted early in the process. The court also requires certifications – including a diagnosis and prognosis – from two doctors or a doctor and a licensed psychologist, as well as detailed documentation of the person’s assets. If a guardian is ultimately appointed, all financial accounts are monitored to ensure that no monetary irregularities take place.
Still, Teaster said careful guardianship – regardless of whether the guardian is a stranger or related to the person – requires oversight, which involves “more time and more money than is currently spent on it.” .
Simple documents – like a power of attorney form and a health care directive – can help you stay in control, even if you are no longer able to take care of yourself.
“No one needs to fall asleep at night, lock their doors, or think that justice is going, with their long, pricked arm, to take you away,” Teaster said.
According to Flom, the best way to protect yourself from mistreatment or similar abuse is to make sure your estate planning documents are complete – and that means more than just a will. “Make sure your power of attorney and healthcare directive are met,” Flom said.
A proxy form is a legal document that allows one or more people to access your financial accounts and make decisions with your money when you can’t. A healthcare directive does the same for medical decisions. Both forms, which vary from state to state, can be found free online and completed without the assistance of a lawyer – although having the forms reviewed by a lawyer can help ensure they are legally valid.
You can create your own proxy form with LegalZoom’s step-by-step instructions, and make it official by having two people sign it as witnesses. Some states require the form to be notarized as well. AARP has free downloadable health care directive forms for each state. Keep one hard copy and one digital copy in a safe place and make sure the chosen custodian knows where to find them.
It is especially important that you continue to update these two documents, to reflect changes over time. If the chosen guardian is no longer willing or able, then you must choose someone else and fill out new forms.
According to AARP, more than half of Americans do not have basic estate planning documents like a will or power of attorney. Among millennials, that number climbs to 78%.
If you haven’t completed the paperwork, Flom says, that could leave the court with no choice. “If you need someone to make decisions for you at this point, you’re stuck in New Jersey probate court and a guardian appointed for you.
Teaster said most guardians take on this role for the right reasons, but more attention and resources should be devoted to the system in order to root out abuse.
“When it works well, people are safer,” she says. “When it goes wrong, it is draconian action that robs people of their rights with little due process and oversight.”