Guide to the Players: Professional Guardians and Conservators

There is a Bill Cosby skit in which Bill observes that parents faced with bickering children to not want justice--they want quiet. Judges often have a similar attitude when it comes to families battling over who should be appointed guardian or conservator for an aging family member. The judge doesn’t want to hear about all the dirty laundry and figures that if the family cannot agree, everybody will be better off with a neutral party. That neutral party is almost always a professional. Elder law lawyers refer to guardians and conservators as “fiduciaries.” Some fiduciaries are family members. The ones I am talking about today are professional fiduciaries. They do it for a living and they charge for their services.

Where do Professional Fiduciaries Come From?

Professional fiduciaries are people who have set up small businesses serving as guardians, conservators and trustees in cases where there is no family member available to play that role. They tend to be trained in medicine or the social services, but there are no requirements for being a professional fiduciary other than the ability to get a bond and the ability to get appointed. Several prominent fiduciaries in Oregon used to work as nurses. Others hold masters degrees in social work. Some simply learned the profession on the job by working for other professional fiduciaries.

Although there is no license required to become a professional fiduciary, most of the professionals in Oregon belong to the Guardian/Conservator Association of Oregon. The web site contains a list of its members. If you go to the list you will see that I am a member. I am not a guardian or a conservator, but I deal enough with the professionals that I want to keep up with what they are doing.

In a guardianship or conservatorship the professional fiduciary needs his or her own lawyer. Professional fiduciaries build relationships law firms and use the same ones over and over. The fiduciaries give work to the law firms, and the firms give work back to the fiduciaries. If you are an elder law lawyer it is good for business to have a fiduciary or two who like to hire you. If you are a fiduciary, it is good for business to have a lawyer or two who will call you when a case need the skills of a professional. One hand washes the other.

One interesting aspect of the connection between law firms and fiduciaries is that a professional fiduciary can file a petition for the appointment of a guardian or conservator even if no one in the family wants it to happen. For example, a fiduciary with connections in the medical community might get called when a medical provider is suspicious about the welfare of an elder. The fiduciary goes to her favorite law firm and causes a guardianship petition to be filed. A few days later the family is inundated with legal papers from a person completely outside the family who is asking to be appointed guardian for the disabled elder and expecting to be paid, along with the attorney, from the funds of the elder. There have been some complaints about this process, but the courts have tended to allow it on the grounds that it does result in protection for elders.

The professionals, like law firms, have their own personalities. Some are sweet social worker types who try to make everybody happy. Others are tough, stepping in to make the difficult decisions when the people in the family cannot. Almost all fiduciaries do business as sole proprietors or small partnerships. Some run their businesses out of their homes.

Fiduciaries, in addition to having connections with law firms, also develop connections with arms of government. Some fiduciaries will work only within the state court system. Others work primarily with the U.S. Department of Veterans Affairs and its system for providing benefits for disabled vets. Tension between the state and federal government in this area, translates into tension among the fiduciaries attached to each.  An elder law lawyer thrust into one of these disputes among agencies and their favored fiduciaries spends as much time on the politics of the case as she does on the law.

What do the Professionals Do and What Does it Cost

Professional guardians make medical and placement decisions for disabled elders. Professional conservators collect, secure, and manage the money for elders who cannot do that themselves. They charge between sixty-five and an hundred dollars an hour. They often employ bookkeepers and caseworkers who charge less than that. They do whatever is required by the court order appointing them and report yearly to the court. Once appointed, they are extremely difficult to get rid of.

Conclusion

In the right circumstances, having a professional fiduciary take care of your love one can be a blessing. You go back to being a child or a grandchild or a friend and the professional makes the hard decisions. In the wrong case it can be a nightmare. For a period of time, I made a good living litigating against professional fiduciaries who had clear and firm ideas about what should happen to an elder and were not about to let meddling loved ones or even the law get in their way. If you must invite a professional fiduciary in your life, try to get Anne Sullivan and not Nurse Ratched. In the beginning it can be hard to tell the difference. Demand references and talk to people in the business to make sure the person will work for your family.

Oregon Guide to the Players: Lawyers continued

In my last post I talked about elder law lawyers and where they come from. I will now assume that you read that post and have hired an elder law lawyer to help you get a guardian appointed for your elderly demented parent who is no longer safe living alone. Your lawyer learned all about your parent and filed a petition in court asking that you be appointed to make decisions for your parent. You intend to move your parent to a long term care center. Before you know it there are lawyers everywhere. Let’s take a look at where they all came from.

Your Lawyer

You know where your lawyer came from. You learned about the various kinds of elder law lawyers. You avoided any of the behaviors described in my post about how not to hire an Oregon elder law lawyer. Then you found a lawyer you liked and hired him or her.

A Lawyer for the Disabled Elder

After your lawyer filed the papers necessary to begin the guardianship, he had the papers personally served upon your disabled parent and mailed to the other members of the family. The papers served upon your parent gave directions on how to object to the proceeding. One of the papers is a blue form which stands out from the others. It is the form your parent uses to object to having a guardian or a conservator appointed.

Sometimes the elder signs the blue objection form. Sometimes a concerned relative signs the form and claims the elder did it. Elders served with a petition for the appointment of a guardian have been known to emerge from deep coma’s long enough to sign the blue objection form. Lets assume that your elderly parent received the form, decided you were just out to get her money, and vows that she will never leave her home.

Your disabled parent might go out and hire an elder law attorney using the same method you used to find your attorney. Your parent’s lawyer would then defend the elder’s right to make decisions for herself. If your parent objects by filling out the blue form, but does not hire a lawyer, the court may appoint one for her. The court uses a list. The lawyers on the list have agreed to take court appointments with the understanding that sometimes the lawyer will get paid and sometimes the lawyer won’t. I am on the list. Being on the list is a risk, but we do it because we think that the elder in these cases should have a lawyer on her side.

Now we have two lawyers. Your lawyer filed the case. Your parent objected and the court has appointed a lawyer from the list to represent your parent.

But we aren’t done yet.

The Lawyer for the Professional Fiduciary  

Soon after your parent gets a lawyer, your lawyer calls you into his office and gives you fourteen reasons why you should not be the guardian for your parent. The most convincing reason is that being a guardian for your objecting parent may well destroy the parent-child relationship. Your lawyer suggest that you ask a professional guardian to step in. There is a small industry consisting of social workers, nurses, and psychologists who make a living being guardians and conservators for the elderly.  Your lawyer recommends one and you agree.

Soon you find that the professional guardian suggested by your lawyer has her own lawyer. The professional’s lawyer comes from one of the local elder law firms or is a well-established sole practitioner who does nothing but elder law. Elder law lawyers develop ongoing relationships with these professionals. Elder law lawyers regularly recommend certain professional guardians and conservators to their clients, and professional guardians reciprocate by hiring those elder law lawyers to represent them in other cases. If your lawyer said that Fred Feelgood would probably be a good professional for your parent, it is probable that Fred has hired your lawyer to represent him in other cases.

Now you have a lawyer, your parent has a lawyer, and the professional fiduciary has a lawyer. How many lawyers does it take to keep your elderly parent safe? The answer is three. If your parent has money, all of them may expect to be paid from your parent’s cash. And  there could be more.

Lawyers for the other relatives and government agencies.

When your lawyer filed the papers to have a guardian appointed, he gave copies of the papers to several of the the elder’s relatives, the state of Oregon, and sometimes the U.S. Department of Veteran’s affairs. Any concerned relative or disgruntled government agency is entitled to file papers in the case and have their issues heard. Thus, that angry brother of yours who thinks your parent should never be allowed to eat salt gets his day in court. If your elder is receiving government benefits, the agency in charge  may have something to say. The courtroom is quickly filling with lawyers.

Conclusion

The old Chinese blessing wishes you a life without lawyers. Before you go off to file the papers to start a guardianship or conservatorship, be aware that you are putting the wheels of justice in motion. We lawyers are like owls--we see motion and swoop in to feed. What started as a simple visit to one Oregon elder law lawyer can end with a courtroom full of them. This is not to suggest that you shouldn’t do it. If an elder is in danger, you may have no choice. But be warned, you may end up in a courtroom full of lawyers, every one of them wanting to be paid from the funds of the disabled elder. The point is that filing for a guardianship or conservatorship attracts expensive professionals. Don’t do it unless the result you want to achieve is worth the risk that you are taking.

Oregon Guide to the Players: Elder Law Lawyers

It has come to that. Your elderly parent is giving all her money away to a televangelist, or leaving the stove burners on for days at a time, or wandering in the street in her nightgown. You have tried to talk to her. She refuses to change her behaviors and adamantly refuses to enter a care center. You have talked to your brothers and sisters and to her bank. Everyone agrees that someone has to be appointed by the courts to protect her from herself. You need a guardianship or a conservatorship.

You are entering a world in which several professions and several arms of government uneasily interact. You may think it is simply a matter of hiring a lawyer and letting the lawyer take care of things. Guardianships and conservatorships are seldom that easy. This series of posts is intended to identify the players in the drama and give you a glimpse of how they interact with each other. The first post in the series is about lawyers.

Elder law lawyers come from a variety of places. There are elder law firms, sole practitioners, lawyers from full-service firms who practice elder law, lawyers who do elder law and other things, and lawyers who will do anything that comes in the door. It is worthwhile to take a look at each type.

Elder Law Firms

In Oregon, Multnomah County is the only county that has firms of lawyers that do only elder law. Because the demand for elder law is not great, elder law firms are small compared to firms in other areas of law. Multnomah County has three of them: Fitzwater & Meyer, Nay & Friedenberg, and Davis, Pagnano. Fitzater & Meyer is the largest of them, and as of this writing, the firm web page lists ten lawyers.

The elder law firms offer the full gamut of elder law and estate planning services. They employ paralegals and generally use technology to provide quality service at a fairly reasonable price.  The lawyers at these firms tend to charge an hourly rate higher than the sole practitioners, but when the cases are over their bills are not necessarily higher. Some clients like the security the firms offer, while other prefer the intimacy of working with a sole practitioner.

The Sole Practitioners

I am one of these. I practice out of a small office in Fairview, Oregon with the help of a legal assistant. There are a quite a few sole practitioners doing elder law. Many of them limit their practice to a certain aspect of elder law. One local attorney takes only contested guardianships and conservatorships. Another refuses to do contested cases, handing only cases that do not require hearings. Sole practitioners tend to charge a lower hourly rate than firm lawyers, but they sometimes lack the technological tools and support staff that streamline legal services. I like to think that my bills come out lower than those from the firms, but there are other sole practitioners in which that is clearly not the case.

Lawyers from Full Service Firms That Do Elder Law

Some large full-service firms, the kind that represent businesses and professional sports figures, have a lawyer or two on hand to handle elder law issues. These lawyers tend to concentrate on probate and the conflicts that arise when rich clients die and pass on their money. Those cases are close enough to elder law to enable the full-service firm lawyer to tackle an elder law case now and then. The big firm lawyers are always intelligent and well trained. Sometimes, however, they lack intimate knowledge of the court staff and procedures. This means they spend more time on simple things and charge a very high hourly rate for doing so.

Lawyers who do elder law and other things.

Some communities simply cannot support a lawyer who wants to do elder law full time. Thus, if a lawyer wants to make a living, he or she does other kinds of law as well. Some excellent elder law lawyers in small towns also do divorce law. Some times a lawyer is transitioning from one kind of practice to another and during the transition period does both. The lawyers I have seen who fall into these categories tend to do a fine job at a reasonable price.

Lawyers who do anything that comes in the door.

Some lawyers offer to do whatever you need done. They will get you out of jail, get you divorced, get a personal injury settlement after your slip-and-fall at the grocery store, and establish a conservatorship for your demented parent. The smaller your community, the more likely it is that you will find lawyers like this. If this is the only kind of lawyer available to you, then you have no choice. If you live in a more urban area, find someone who practices elder law on a regular basis.

Conclusion

People generally overestimate the impact their choice of lawyer will have on a case. The law is the law. The facts of your case are what they are and you are not supposed to make up new facts in order to win. The lawyers job is to know what the law is and present the facts to the court in the most positive light. It ain’t rocket science.

If you need and elder law lawyer, first find a lawyer who actually practices elder law. Your business lawyer or that great guy who helped you beat the drunk driving charge may not be the right person to help you with a guardianship or conservatorship. Next, pick a lawyer you like. There are a lot of us out there. You should not have to put up with someone you do not get along with. And finally, choose someone you can afford. When you and your lawyer are both comfortable with how the fees are going to be paid, the relationship has a lot better chance of going well. It is very often true that as the relationship goes, so goes the case.

Next Installment Fiduciaries (Then government agencies)