Conservators, Guardianship and Powers of Attorney

[Ennui]

(Forgive me if this gets too long)

I just had a very distressing conversation with my parents, my 87 year old father has been a “get rich quick” scheme junkie for decades but as his mental state has declined the problem has gotten out of hand. It used to be he’d spend $50 on some “program,” read the books, listen to the tapes, lose interest and a few months later find another program. It never used to worry me, I spent more money on books, CDs and movies than he did, this was just his form of entertainment.

But the last few years he started spending a lot more on them. Two grand here, six grand there. I’ve actually gotten pretty good at getting him refunds, it’s amazing what you can do with google and a grudge. But one side effect of interacting with scammers is you get on their mailing list, and those lists get sold to other scammers, before too long every scam outfit in north America (and at least a few in Nigeria) have you on their speed dial. My father is retired, outside of church he has no social life, he spends his days watching infomercials and reading direct mail sales pitches for scams.

I spent a few hours today going over his bank statements and it astounds me how much he spends on scams. But far more frightening is his reaction to seeing the numbers. About five weeks ago, he went to his bank and sent two thousand dollars to someone via wire transfer. When I told him about this I was looking him squarely in the eyes and I do believe him when he told me he doesn’t remember doing it. Scammers love wire transfers, there are no charge backs, no dispute mediation and if you know the tracking data you can accept the money almost anywhere in the world, the only less traceable transaction medium is cash. But in my father’s case the scammer could just as well given his real name and address because my father doesn’t remember sending the money or to who.

I spent time on the phone with his bank, his current credit cards are canceled, we highlighted several charges to dispute and I’m expecting a call from their fraud department. That might help restore some of what he’s lost so far but it does nothing to prevent further losses. He’s promised my mother he’d quit doing this before but he’s like an addict waiting to fall off the wagon. And I don’t think there’s a twelve step program for get rich quick schemes.

Which brings me to the reason for this post, I have no experience with legal guardianship, appointed conservators or financial powers of attorney but I’m very afraid that’s about to change. Fortunately my mother is in good health and very sound of mind so I wouldn’t be the one seeking such authority but my father is posing a definite threat to his financial health and they own their house together. She very well might need to take legal control over his finances to avoid being bankrupted by him.

From what I’ve been reading court appointed guardianship is a very complicated affair and it should be when you think of how many liberties are at stake. I can’t predict how my father would react to being called into probate court, it could be a heart breaking event and not just for him.

Financial power of attorney seems to allow another person to act on your behalf in many regards but what’s less clear is if they would have any sort of “veto” power over your financial actions. My father needs to be restrained, correct me if I’m wrong but I don’t think financial power of attorney would do that.

I am very well aware that decisions of this magnitude require competent, professional counsel and I assure you well will seek it out. I bring this question here because I have never dealt with any of this before and any first hand experience shared might help me make a more informed decision. That and I find writing things out helps me think more clearly, something i greatly need at the moment.

(I can’t decide if this is a GQ topic or a IMHO. I apologize in advance to any mod tasked with moving it to a more appropriate form.)

[UDS]

Painful. You have my sympathy.

Obviously the details will depend on where your father lives but, in general, I think you are correct. If A grants B a power of attorney over his affairs, this enables B to act on A’s behalf. But it does not prevent A from continuing to act on his own behalf.

What you want is to have your father declared incompetent to manage his affairs. There will be a procedure for doing this, and a tribunal before which it can be done. There will also be a test of incompetence that you will need to satisfy; “spends money in ways that you or I might think are foolish” may not cut it, but you will need proper advice on what the test is and whether your father’s behaviour to date is likely to meet the test.

The procedure will certainly involve your father being told of the allegation that he is incompetent, and having an opportunity to rebut it, so I see no way in which this is not going to be very painful.

There may be another way, if your father is at all alarmed by the fact that he spent $2,000 and has no recollection of it, and that is for him to agree to hand his financial affairs – or, at least, his banking affairs - over to your mother. Savings go into an account in her name, your father arranges for his income (pension, dividends, whatever) to be deposited directly to an account in her name , your father cancels his credit cards. Your mother can transfer a modest amount weekly or monthly to an account in his name, and he can have a debit card on that account, for daily use. Humiliating, perhaps, but not so humiliating as being found incompetent before a tribunal.

This isn’t bullet-proof, because your father could at any time open his own account, direct his income into that account, and start lining the pockets of Nigerian princes once again. But your mother would know about it. That might be the time to think again about a competence hearing.

[Oakminster]

In my state, an involuntary guardianship/conservatorship requires a lawsuit, joined in by at least two relatives as plaintiffs, with service of process on the putative ward. The evidence must show that the ward was examined by at least two doctors properly licensed in this State, and that those doctors find that the ward is not capable of managing his own affairs. The ward is allowed to testify and otherwise participate in the proceedings to the extent feasible…we don’t go dragging comatose patients into court or anything. The Court may appoint a guardian ad litem to represent the ward, may require additional examinations, and if the Court awards guardianship/conservatorship, the Court may require the guardian to post a bond and file inventory/accountings of the ward’s estate regularly.

[Ennui]

Thank you UDS and Oakminster for your kind replies.

I have a hard time believing my father would voluntarily submit to a situation like UDS suggested but considering the alternatives seem to be either getting him declared incompetent or letting him bankrupt himself it’s worth some time and effort to explore the possibility. I’ve been in touch with my siblings, we’ll need to coordinate our efforts.

Thanks again all.

[Markxxx]

I volunteer at a retirement home and most of the people there are very healthy they just need someone “in case.”

That said, even though they are old, a lot are over 85, they’re not really “forgetful” or incapable, a lot of them just don’t care.

Did you ever try to tell an 87 year old what to do? Or what he should be doing? Good luck.

And I can’t blame them, for instance, I went with one lady to see her doctor, outside of reading glasses she’s fine but a bit arthritic. Her doctor told her to drink more milk for calcium and to cut back on the knitting. Well she told him and me, she HATES milk and she’ll be damned if she’ll quit her hobby.

The woman is 85, she’s gonna do pretty much as she pleases regardless.

Ask yourself this, is your father REALLY forgetful. If he doesn’t have any outstanding medical issues, my guess is he knows darn well he got took and is very embarrased to admit it, so he just said “He forgot.”

You’re not gonna get him to admit he didn’t. But really do you think he forgot or just got took. His past history as you said, seems to say, this is just another thing.

As for seeing his reactions, this happens to a lot of people. Did you ever open your Visa bill and say “Oh my God,” those $10.00 charges at Walgreens and McDonalds sure added up quick you know.

If you’re getting scammed $10 or $20 at a shot it can be a shock when you look at it total. And scammer LIKE small scams, because people say “Oh well it’s $10, it’s not worth worrying about.”

So they get away with it.

Perhaps you could work out an agreement. Give him a set amount of money to lose. Like you said, it’s entertainment to him. And he can buy things or whatever. Put the money on a Visa Debit Card so he can use the Internet. When the money’s gone it’s gone.

Make it clear that he is still in control over his money and he can blow it all, but you’re just helping him manage it, not controlling it. Older people are not easy to give up their independence, and the worst thing you can do is try to take it from them, 'cause you might wind up with nothing.

You might also want to contract the Salvation Army or other volunteer organizations. They may be able to find things for him to do, so if he’s giving away $50.00/week to the Salvation Army at least it’s helping someone and he’s keeping busy.