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.