Monday, July 12, 2010

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.


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.

No comments:

Post a Comment