Clients are commonly confused about various fiduciary roles and their duties. The job of helping them understated these roles and the obligations that with them is typically that of the elder and probate law attorney. But lawyers, especially those who have not practiced long in the probate and elder law arena, may find explaining the rules to their client difficult…
Most everyone who thinks about it thinks that when they get old that they will stay in their home and not go into institutional care setting. And while positive thinking might have some value, getting old is not something any of us can afford to be “Pollyannaish” about. In the real world, many people who would prefer to stay in their homes end up spending years in nursing homes, assisted living facilities, or other institutional settings.
In everyday conversation, the word “guardian” could have many meanings. But in elder law, and in probate court, the term is used more precisely. It means someone who is appointed by the court to make decisions about the care needs of someone who is unable to make decisions for themselves.
Clichés about “avoiding probate” and “protecting your assets” are recited ad nauseum at the so-called “educational seminars” (aka sales presentations) put on nightly by lawyers and financial planners in eateries across Michigan. It isn’t surprising that people show up to these presentations. Probate law is complicated, and people understandably want to feel informed before they spend money and make important decisions about how their assets are distributed at their death. Unfortunately, for the most part, these free-dinner seminar programs are the only place they can go for information.
In litigation involving the financial exploitation of a vulnerable adult, timing is often everything. Let’s say, for instance, that Dad really likes his new caregiver. So much that his is “helping her out” financially. You smell trouble, and you’re probably right. The question is what to do, and more to the point: when to do it. The same question comes up when the concern about exploitation involves a sibling or a new spouse.
