0:19

Thank you . Specialized experience , Whether

0:22

you're an established attorney looking to refine

0:24

your expertise or an emerging

0:26

lawyer seeking a successful foray into

0:28

elder law , this is your masterclass

0:30

. Now let's get started

0:33

with the luminary in the field . Here's

0:35

Todd Whatley .

0:37

That's right . This is the Elder Law

0:39

Coach Podcast and my name is Todd Whatley and

0:41

, as always , I am super happy that

0:43

you have joined us . And I

0:46

just want to say real quick if you

0:48

have suggestions , I am very

0:50

much open to suggestions . We are

0:52

now getting upwards

0:54

of . I've

0:58

stopped counting at 28 . I've

1:07

stopped doing episodes at 28 , so we're 29 , 30 , 31 , 32

1:09

, 33 . So we've done 33 episodes and I'm not running out of stuff . I could do

1:11

lots of episodes , but I want to do what you

1:13

want , and so if you have questions

1:17

or if you have topics

1:19

that you would like for me to do , please

1:21

email me , todd , at TheOterLawCoachcom

1:24

, and I would love to take your suggestions

1:27

about future topics

1:29

. Today I want to talk about

1:32

one of the things that is my soapbox

1:36

and that is guardianships

1:38

versus power of attorney . A

1:41

lot of this is going to relate back

1:44

to working with

1:46

a client with diminished capacity

1:48

, and that is episode 16 . I

1:51

would encourage you . If you have not listened

1:53

to that episode , I would suggest you go

1:56

back and listen to that

1:58

one , and it

2:01

will explain a lot of things

2:03

about my

2:06

take on . Can a person

2:08

sign a power of attorney or should we

2:10

do a guardianship and

2:19

just a real , very quick summary

2:21

is just because someone

2:24

has large misconception

2:26

in the legal community is

2:28

that if

2:33

you have dementia , you can't sign

2:35

documents anymore , and that does not follow

2:37

our ethical rules

2:39

, and I

2:41

explain that in detail in episode

2:45

16 , so I would encourage you to go back

2:47

and listen to it . So

3:02

I'm going to make sure we

3:04

understand the differences between

3:06

the two so that I can effectively

3:09

make my point . So a

3:11

guardianship is when a person has become

3:14

incapacitated and typically

3:16

they have not done any estate planning

3:18

documents , so therefore

3:21

they do not have power of

3:23

attorney . They do not have anything saying . This

3:25

person can do things for me and

3:27

they have now become incapacitated

3:30

, so therefore we have to basically

3:32

sue them . We open up a court

3:34

case against the person that is incapacitated

3:37

, present the

3:39

evidence to a judge that this person

3:41

is incapacitated and that they can no

3:43

longer make decisions by themselves

3:45

, and we need the court to intervene

3:47

. Name a guardian for

3:49

the ward , okay , and

3:52

the thing is

3:55

, this is just what you

3:57

ought to do in the medical

3:59

field and I come from the medical field

4:01

. I was a fiscal therapist

4:03

for quite a few years before

4:06

I became an attorney , and I can

4:08

tell you if someone is difficult

4:10

to deal with , if they have

4:12

a permanent disability

4:16

of the mind , then

4:18

it's like , oh , we just go get a guardianship

4:20

, that'll make everything easier . And the

4:22

medical establishment

4:25

loves to deal with a guardian

4:27

. They know that they're being supervised

4:30

by a judge and there's

4:32

typically no funny business and it just

4:34

makes their life easier if they can say

4:36

, oh , this person's the guardian and they can basically

4:39

ignore the patient and

4:41

just talk to the guardian and the

4:43

guardian is the one to make decisions

4:45

. It is more work when there is

4:47

a power of attorney in place and

4:50

they just they

4:52

see it from their convenience

4:54

and say go get a guardianship . And

4:57

please understand , a guardianship is

4:59

taking the rights away

5:01

from a person and giving it to someone

5:04

else , and a judge

5:06

does that . Once the person

5:08

goes through the guardianship , they are now a

5:10

ward and they do not have

5:12

the ability , typically with

5:15

a full guardianship , to make

5:17

any decisions whatsoever

5:19

. Okay , so we've taken this

5:22

person's autonomy away from them

5:24

and we as attorneys are

5:26

supposed to look out for the

5:29

autonomy of our clients , the freedoms

5:31

of our clients . We don't want the rights

5:33

taken away from our clients . But

5:36

with an older person with a diagnosis

5:38

of dementia , it's just like yep , that's just what

5:40

we're going to do and that

5:42

is not what we as attorneys

5:45

are supposed to do , and particularly as elder

5:47

law attorneys . We are

5:49

to protect the rights of our clients , and you do

5:51

that best by having your client

5:53

do a power of attorney . Ok

5:56

, again , go back to episode 16

5:58

to see when this

6:00

can occur . But I'm just saying the

6:03

power of attorney is a very simple

6:05

and inexpensive , particularly

6:08

when you compare it to a guardianship document

6:11

that the person signs in

6:13

your office . They decide who's going

6:16

to be the guardian . They still have

6:18

all of their rights , they are still able to

6:20

make decisions , but

6:22

they have someone out there that

6:24

can help them . And I prefer

6:27

an immediately effective

6:29

power of attorney so that the agent can

6:31

jump in and do what needs to be

6:33

done very quickly without having

6:35

to jump through any hoops . I'm not

6:37

a fan of springing powers of attorney

6:39

because you have to jump

6:41

through some hoops before the person can function

6:45

as the agent , and sometimes those

6:47

hoops can't be done outside

6:49

of court , and so we end up in court

6:51

, which is the whole purpose of doing

6:54

the power of attorney is to avoid court , ok

6:56

, so power of attorney

6:58

gives someone else the authority

7:01

to help the person make decisions

7:04

. But the key point is the principal

7:07

, the person who created the power of attorney

7:09

, still has their rights

7:11

, is still able to do things , and

7:14

they don't lose any of their rights

7:16

. So circumstances that

7:18

would lead up to a guardianship

7:21

is the loss of capacity

7:23

, either sudden with

7:25

a stroke , head injury , car

7:28

wreck , some

7:30

medical procedure . If their heart

7:33

stopped and it took more than just a few

7:35

minutes to get them back , they would have some brain

7:37

damage , and so something like

7:39

that occurs and that person quickly

7:41

becomes incapacitated . But

7:44

typically what we as elder

7:46

law attorneys see is someone develops

7:50

dementia and that

7:52

is a slowly progressing , ongoing

7:54

decline of their

7:57

mental faculties . That

7:59

is not so clear cut . It's like , okay

8:01

, today they have capacity , tomorrow

8:03

they don't could

8:09

. It's like okay , today they have capacity , tomorrow they don't . And doing this while

8:11

the person still has capacity allows us to jump in and do

8:13

what needs to be done at any point past

8:15

them , particularly if you do an immediately

8:17

effective power of attorney

8:19

. And

8:21

so under a power of attorney

8:23

, the , the agent

8:26

, is to make decisions that are in

8:28

the principal's

8:30

best interest . That's the fiduciary

8:33

duty . The agent has a fiduciary

8:35

duty to the principal , as

8:38

does the guardian has a fiduciary

8:40

duty to the ward . But

8:43

the difference there is the guardian

8:46

has to answer to the judge . And I think

8:48

this is one thing that most medical people

8:50

don't understand is when

8:52

they recommend a guardianship

8:54

. It's so convenient for them but

8:56

it's hugely inconvenient for the family

8:59

, because a

9:01

guardianship is a lifetime

9:03

commitment with the court unless

9:06

the person regains capacity , which is very

9:08

rare , particularly as an elder law attorney

9:10

and so you have a

9:12

lifetime commitment with this court Every

9:15

year . I think most

9:17

states require an annual

9:19

evaluation or update

9:21

to the court of this person , both

9:24

financially

9:26

and medically , and most

9:28

people want an attorney to help them

9:30

file that . And so every year you

9:33

have to go back to the court and you

9:35

do this until the person passes away

9:37

. And people don't think about

9:39

that up front . It's like , oh , just go get a guardianship

9:41

, it'll be easy . Well , it is easy

9:43

at first once you get

9:45

through the process , but then the family

9:48

has to deal with this for the rest of the

9:51

ward's life . Ok , technically

9:56

, a guardianship is to

9:58

be crafted specifically

10:00

for the needs of the ward

10:02

. I have seen typically

10:05

most attorneys they just file a general

10:07

guardianship to say we're going

10:09

to take care of everything . They don't go through and

10:11

craft it specifically

10:14

on the needs

10:16

of the ward , because that takes time

10:18

, that takes effort , that takes testimony

10:20

from experts and it's

10:23

just easier to just do a complete

10:25

sweep , which means the

10:27

ward has no rights after the

10:30

guardianship is done . You

10:32

can do that with a power of attorney . Now , I'm

10:34

a huge fan of very

10:37

comprehensive

10:40

powers of attorney that allow the

10:42

agent to do whatever needs to be done

10:44

because of

10:46

Medicaid planning , scam prevention

10:49

, things like that . That allow the agent

10:51

to go in and close bank accounts , gift

10:55

money , do whatever needs to be done

10:57

to protect the principal

11:00

at that point , with

11:02

the understanding that those actions have to

11:04

be in the best interest for the ward

11:06

. Let's

11:08

talk about cost . The cost

11:10

between doing a guardianship

11:12

and a power of attorney is tremendous . Whatever

11:16

you charge for a power of attorney , which is

11:18

probably somewhere between $200

11:21

and $1,000 , I don't know what

11:23

you charge , but as an elder

11:25

law attorney , if you were doing one that is very

11:27

comprehensive and allows

11:29

us to protect the entire estate

11:31

once someone needs nursing

11:34

home care , you should charge a fairly

11:36

substantial sum for that , and

11:38

I do a package of documents financial

11:41

power of attorney , health care power of attorney , living

11:44

will and a HIPAA release and

11:46

I charge one flat fee for those

11:49

and it's pushing $1,000

11:51

. I don't get pushback because

11:54

how I'm presented as this will

11:56

allow us to protect your entire estate

11:58

once you need nursing home care , or

12:00

it will allow us to protect as much

12:03

as possible , and without

12:05

the powers in this power of attorney , we can't do that

12:08

and you would lose everything . So it's well worth

12:10

the fee that I am charging

12:12

them , which is probably higher than most

12:14

people With a guardianship

12:17

. I think most attorneys require

12:20

some upfront fee

12:22

, which is more than a thousand

12:24

and sometimes a few thousand

12:26

, and then typically based on an

12:28

hourly rate if things go bad

12:31

and you have to spend more time

12:34

in court fighting or doing

12:36

whatever , and so it is very common

12:39

for guardianships to be many thousands

12:41

of dollars . And again there's

12:43

that annual fee to submit

12:46

things to the judge and get things

12:48

back out there and

12:50

an attorney charges for that

12:53

. Okay , so

12:55

those are some

12:57

of the biggest differences and

12:59

it's just . It's

13:02

interesting how

13:04

that happens . And

13:06

then some of the practical

13:09

issues between a guardianship

13:11

and a power of attorney is many

13:14

times people come to us and say mom's

13:16

in the nursing home , we're spending

13:19

$8,000 , $12,000 per

13:21

month . Can

13:23

we protect her money . It's like , yes , if

13:25

we have the power to do that and if they

13:27

have not done a power of attorney and we

13:29

need a guardianship . Some

13:31

states do not allow Medicaid

13:34

planning under a guardianship

13:36

, particularly in Arkansas

13:38

. The guardianship

13:41

statute says the assets

13:44

of the ward shall be used for the

13:46

ward and judges have read that as being

13:49

. We can't give it away . If it's to be used

13:51

for the ward , we have to use it for the ward

13:53

. So therefore you cannot do Medicaid

13:56

planning in those situations . We've

13:59

had some success , but it's very spotty

14:01

and it's not a given . And so

14:03

see , if your state

14:05

allows that , if the judges are willing

14:07

to let you do Medicaid planning

14:10

. But even if they do

14:12

, to get the guardianship

14:14

in place and be able to come

14:17

up with a plan and do this , you

14:19

have to wait on court schedules

14:22

and hearings and different things and

14:24

you can easily go one , two , three

14:26

months trying

14:29

to get the processes in

14:31

order to do Medicaid planning under

14:34

the guardianship , whereas with a

14:36

power of attorney you can probably

14:38

draft that in a day , go get

14:41

the person's signature that

14:43

day , or quickly , or , if they've already

14:45

done power of attorney , you can start Medicaid

14:47

planning immediately and

14:50

many times do it within 30 days

14:52

, so that the family pays for

14:55

a month's worth of nursing home care as

14:57

opposed to three or four months , and

14:59

that's saving , you know , $10,000

15:01

, $12,000 per month that

15:04

you're able to do that . And

15:06

so again , there's

15:09

just no comparison between a

15:11

guardianship and a power of attorney and why

15:14

the power of attorney just makes

15:16

sense . And

15:19

also , I don't want

15:22

you to discount the emotional

15:24

involvement here is

15:26

, you know , with the family having

15:29

to go through a guardianship , versus the process

15:31

of a power of

15:33

attorney . Guardianships can be very

15:35

humiliating . You have to present

15:38

evidence in court that this person is

15:40

incapacitated and sometimes this

15:42

person's doing really bad things

15:44

, you know , stripping naked and running

15:47

out the door or going to the bathroom

15:49

in the front yard and sexually

15:52

assaulting other people . It

16:01

can be a very bad process of presenting

16:04

all of this in open court for this person

16:06

who used to be a pillar of the community

16:08

and people think great things of them , and

16:10

now you're saying all these bad things

16:12

. That's emotionally devastating

16:15

to the client , to the ward

16:17

and to the family , and

16:20

with a power of attorney , we don't have to get

16:22

into that just here . Do you know who

16:24

these people are ? Do you know who you

16:27

want to make financial decisions

16:29

decisions for you ? If

16:31

so , put it in this form , sign it

16:34

, notarize it . It's done . No

16:36

emotional issues

16:39

there . Just sign it and the

16:41

family probably knows who's going

16:43

to be the best person to be the agent

16:46

. And in court , the judge

16:48

chooses someone . I say they generally

16:50

do a good job , but there could be that situation

16:53

where the judge picked the wrong person

16:55

and then trying to change

16:57

that is a huge hassle

17:00

. So please

17:03

understand that guardianship

17:05

is not the preferred thing

17:07

to do and it should only be done as a

17:09

very last resort , when

17:12

things need to be done and

17:15

there is no legal

17:17

document in place that allows us

17:19

to do it . Okay and

17:22

just , please

17:24

, don't file guardianship just because it

17:26

just seems to make sense . I've seen cases

17:29

where there is a power of attorney in

17:31

place . Short of

17:33

, the agent under the power of attorney

17:35

needs to be kicked out and someone

17:37

else needs to be put in

17:39

. I mean , I can understand that

17:41

is one of those reasons that a guardianship

17:44

would be needed , but short of that

17:46

, it's so much easier to change

17:48

your mind to do things under the power

17:51

of attorney . Now let me end

17:53

this episode with a quick . You know why

17:56

would you absolutely need a guardianship

17:59

, even if there is a power of attorney

18:01

in place . And I see two situations

18:03

where that comes up when I will refer

18:06

someone out for a guardianship , even though

18:08

I've done a power of

18:10

attorney for them . Number one is

18:13

if there were what I call

18:16

serial agents

18:18

, meaning that mom is very easily

18:20

influenced , or dad , mom or dad

18:23

the principal is very easily

18:25

influenced by someone else

18:27

to change the power of attorney to

18:29

appoint them . And so you'll

18:31

typically see this with three kids , two

18:34

or three kids , and the kids don't

18:36

get along and the kids have different agendas

18:38

. Sometimes one of them is really

18:41

not that good of a kid , needs money

18:44

and has been living off

18:46

of mom . When the other child

18:48

, who is trustworthy

18:50

and does a good job , gets

18:52

to be appointed power of attorney

18:54

, say I'll be that attorney . Mom

18:57

comes to me and says hey , this

19:00

one child is stealing money from me and I

19:02

need to appoint this person as power

19:04

of attorney so they can help me

19:06

. Okay , great , that's a good reason . Well

19:09

, we do that power of attorney . Well

19:11

, the kid who was stealing finds out and says

19:13

mom , I want to lose my job , I want to get kicked out of my house , whatever , I need to be your power

19:16

, do that power of attorney . Well , the kid who was stealing finds out and says mom , I'm

19:19

going to lose my job , I'm going to get kicked out of my house . Whatever , I need to be your

19:21

power of attorney . I'm the one here with you all the time yeah , because they're not working

19:24

. But I'm the one here

19:26

with you , I'm the one who cares for you

19:29

. My sister's not

19:31

a good agent . She's not going to take

19:33

care of you like I am . Let's go to the

19:36

lawyer and have the lawyer name

19:38

me as your agent . Mom's like okay

19:40

, and so she goes to a

19:42

second lawyer and that attorney

19:45

, with the information that they have

19:47

, appoints the you know , let's

19:49

say the son , as the agent . Well

19:56

then everybody finds out oh my God , mom's appointed this child , the one who steals from her , as

19:58

the agent . Well then everybody finds out oh my God , mom's appointed this child , the one who steals from

20:00

her , as the agent . And then it changes back , and then it's just back and forth and back

20:02

and forth . And when mom is so easily

20:05

persuaded to change that ? That's

20:07

the one downside to a power of attorney

20:09

is it can be changed as

20:11

long as the person has capacity and if there

20:14

are attorneys , or even if they download

20:16

a power of attorney off the internet and have mom

20:19

sign it , theoretically

20:21

that trumps the previous power

20:23

of attorney , and so it's just a problem . The

20:25

way we solve that is to open up a

20:28

guardianship and

20:30

let a judge figure it out . Ok , so

20:33

once a judge decides who's going

20:35

to do it , that doesn't get changed so

20:37

easily . So that's one situation where

20:39

I see , even with a power

20:42

of attorney in place , that

20:44

we need a guardianship

20:46

. The

20:55

other one is if the principal I'm

20:58

where they need to stay or go where

21:00

they need to go the agent

21:02

under power of attorney can't

21:05

physically make

21:07

this person stay somewhere or go

21:09

somewhere . A principal still has freedoms . Ok , the a principal

21:12

still has freedoms . They still can

21:14

go and do as they want to do

21:16

, and

21:22

you can't restrain them or kidnap them at this point . And so , therefore , if that person simply

21:24

will not go where they should go

21:26

or stay where they should stay

21:29

, then a

21:31

guardianship

21:33

may be needed . Okay , now

21:36

just a quick practice pointer

21:38

If this person has a power

21:40

of attorney that I've done for them and

21:43

they refuse to go or

21:45

refuse to stay , I'll tell

21:48

the family hey , call me , let me go

21:50

talk to them and , very briefly

21:52

, I'll tell you how I handle

21:54

that is . I will go to them and say look , ms

21:57

Jones , I understand that you want

21:59

to leave the nursing home . Yep , I'm leaving , I want

22:01

to go home . There's nothing wrong with me

22:03

, I can go home . Well , your

22:05

family and the doctors say differently

22:07

, you really should stay here . Well , they don't

22:09

know what they're talking about . I'm

22:16

going home . I'm like okay , ms Jones , you really should stay here . And so that's

22:18

phase one . It's like well , the doctor and your family says otherwise

22:21

, and sometimes that works , but rarely

22:23

. Step two is when

22:25

she says nope , I'm fine , I'm going home . You're like

22:27

okay . In my mind , step

22:29

two is hey , if you

22:31

go home and you get hurt

22:33

, your daughter is your agent

22:36

under the power of attorney , and if

22:38

someone decides she

22:40

let you do that and she let you get

22:42

hurt , they could go after her

22:44

, which is not

22:47

likely , it's actually very

22:49

unlikely , but it could be possible

22:51

. You're not lying to your clients , you're just

22:53

kind of exaggerating things a little bit , but it could be possible . You're not lying to your clients , you're just kind of exaggerating

22:55

things a little bit , but it could happen . It's like

22:57

look , you don't want them going after your daughter

22:59

if you go home and get hurt . Sometimes

23:02

that'll work , most

23:04

times it won't . She's like I'm not going

23:06

to fall , I'll be fine , don't worry about

23:08

it , I'm going home . I'm like okay , ms Jones . The

23:11

last and final stage is Ms Jones

23:14

, you're really not going home . Oh yeah , I

23:16

am . No , you're not , because if

23:19

you continue to decide that you're

23:21

going home , your doctor says

23:24

you shouldn't , your family says you shouldn't . It is

23:26

well documented that you should

23:28

not go home . You're going to force

23:30

me to put on a suit and

23:32

file some paperwork at the court

23:34

and I can talk to the judge this

23:36

afternoon , if I need to , and convince

23:39

them that you do not need to go home

23:41

, and a judge , at least temporarily , will

23:43

say you can't go home , okay

23:48

, and you won't go home . Okay

23:55

, home , okay . It'll take two or three days to fight this out in court , but with testimony from your

23:57

doctor , testimony from your family , everything that everyone

23:59

knows , a judge is going to decide

24:01

you can't go home and so , ms

24:04

Jones , you're not going home . We

24:06

can do it , we can do it easy

24:08

. You can make

24:10

me put on a suit and go to court and

24:13

do all that stuff , but don't

24:15

make me do that , just stay here . Okay

24:17

, this is what you need to do . But if

24:19

you force us , I'll go to court

24:21

and I'll make you stay here . And so Ms

24:23

Jones is like so I'm not going home

24:25

. No , you're not . She's

24:28

like okay , and

24:30

they'll stay okay . Now

24:33

, what lawyer would do that ? What lawyer

24:35

would say oh , she's wanting to leave

24:37

home , let's file a guardianship , you'll

24:40

make more money . But

24:42

is it in the client's best interest ? And

24:44

it's not . If you can convince them

24:47

to stay because they're really

24:49

not going home , I think

24:51

you owe it to your client to tell them

24:53

that to say home

24:57

, I think you owe it to your client to tell them that to say you're not going home , don't make

24:59

me put on a suit , don't make me do all this stuff . You're not going home . And

25:01

I think we owe it to our clients

25:03

that's in their best interest to

25:05

not waste money on that . But I've seen it so

25:08

many times where like , okay , she won't stay

25:10

, so let's just file a guardianship and that'll

25:12

make them stay . Again , lifelong

25:15

commitment , not in the client's best

25:17

interest , don't do that . Go

25:19

, spend a little bit of time , charge the family for

25:21

that . I mean you just save them a ton

25:23

of time . I normally don't charge

25:25

because they're my client and I think this is in their

25:28

best interest and I'll go do that

25:30

. But if you feel like you need to be

25:32

paid for that , sure , I think that's a very

25:35

billable service

25:37

that you can bill the family

25:39

to pay you to go convince

25:41

them not to do a guardianship , and so I've

25:43

probably done that five or six times

25:45

over my career and it worked in

25:47

all but one situation , so

25:50

I would encourage you to do that . All right , hopefully

25:53

I have convinced you emotionally

25:56

and legally not to do

25:58

guardianships unless it is just absolutely

26:00

necessary , but please understand what

26:03

it is and how it involves

26:06

your client and it is truly

26:08

in your client's best interest to not

26:10

go through a guardianship and I think it's your

26:12

job to help prevent

26:15

that . All right , thank you so

26:17

much for listening and , as always

26:19

, please subscribe and if

26:21

you would like to do coaching

26:23

, I would love to talk to you . Give

26:25

us a call to check

26:27

out our brand new website

26:30

. We've updated it , got some cool things

26:32

on there , and I would love

26:35

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26:37

us a call and I will help

26:39

you become a very proficient elder

26:41

law attorney . All right , we will see you

26:43

next time .

26:47

Thank you for joining this episode of the Elder

26:49

Law Coach Podcast . For

26:51

those eager to take their elder law practice

26:53

to new heights and are interested in Todd's

26:55

acclaimed coaching program , visit

26:57

wwwtheelderlawcoachcom

27:01

. With Todd Whatley by your side

27:03

, the journey to becoming an elder law authority

27:06

has never been more achievable . Until

27:08

next time , keep learning , keep growing

27:11

and stay passionate about elder law

27:13

.