RABBING GRANNY'S GOODIES
Make sure your clients are protected against involuntary conservatorships.

Review by Robert Casey, Editor, Bloomberg Wealth Manager, July/August 2000

Many of America's greatest achievements lie ahead.  But the high-water mark for journalism is not likely to be among them.  Its crest came at the dawn of the last century with the age of the muckrakers.  Those crusading journalists wrote with authority and conviction, uncovering wrongdoing in city halls and corporate boardrooms, documenting the evidence, and demanding reform.  Their combination of exhaustive research and passionate presentation has largely disappeared from American Journalism.

But not quite.  Diane Armstrong is neither an investigative reporter nor a felicitous writer.  Yet her new book, THE RETIREMENT NIGHTMARE: HOW TO SAVE YOURSELF FROM YOUR HEIRS AND PROTECTORS (Prometheus Books), is a close as you'll get to a first-rate piece of modern-day muckraking.  The book's title seriously undersells what Armstrong has accomplished here.  This is a painstakingly documented and frightening expose of the spread of involuntary conservatorships (guardianships in some states) wrongly imposed on the elderly.  Once judged incompetent and placed under a conservatorship, a citizen becomes a nonperson, with fewer rights than a convicted felon in a penitentiary.  Your income goes to the conservator, who also controls your assets.  You can't write a check, use a credit card, or make an ATM withdrawal.  You live where the conservator says and eat what he or she provides.  The car keys are taken away.  You even lose your right to vote.

This happens only to really old people who've lost their marbles, right?  Hardly, as Armstrong thoroughly demonstrates.  The imposition of conservatorships or guardianships is spreading rapidly, and people as young as their early 60s are being subjected to them.  In New York, for example, 32,000 guardianships were granted in 1997, up from 15,000 in 1992.

Greedy relatives are the primary force behind this trend.  Writes Armstrong: "A majority of the involuntary conservatorship/guardianship proceedings in our country are thinly disguised predeath or antemortem will contests during which angry heir-petitioners, aided and abetted by the courts, secure their inheritances from vulnerable elderly relatives."  But it's not always relatives.  A quarter of the involuntary conservatorships cited in the book were brought by outsiders such as social workers or even neighbors.  Nursing homes may demand to be appointed as conservators before they will admit elderly patients.  There has even emerged a shadowy industry of professional conservators who collect stiff fees from their ward's bank accounts.

Congressional hearings are warranted, based on the evidence of abuse presented in this book, and reforms to establish due process are surely needed at the state level.  How can an adviser help protect aging clients from these outrages?  The durable power of attorney, revocable trusts, and living wills are effective bulwarks.  Clients should also preselect a list of their own choices for conservator or guardian in the event one is ever needed.  Finally, Armstrong recommends, involve a geriatric psychiatrist in all decision-making sessions and document-signings, and videotape everything to provide evidence that the client was competent at the time.

And be wary of agendas presented under the guise of "for their own good."

HE RETIREMENT NIGHTMARE
Review by Jayne Hong, the Legal Reformer, Summer 2000

Imagine working your entire life so you can settle comfortably during your retirement years, and then losing everything you worked for because someone you trusted and loved betrays you.  THE RETIREMENT NIGHTMARE, by Diane G. Armstrong, Ph.D., shows how unsuspecting seniors can fall victim to involuntary conservatorships and guardianships that label them as "incompetent" to handle their financial and personal affairs, and allow others to take complete control over them.

Although these legal procedures were created as protective measures, Armstrong warns that they "are being abused by calculating heir-petitioners to control the flow of inheritances and direct the transfer of family assets to themselves, all with our courts' blessings."

Armstrong speaks from experience.  The catalyst for writing her book was an eighteen-month involuntary conservatorship battle waged against her mother by four of her siblings.  Drawing from personal experience, legal research, and real-life examples of involuntary protective proceedings, Armstrong's book is both illustrative and instructive.  She covers the cases of fifty-five individuals to show the erratic and unpredictable nature of court rulings-rulings that "reclassify the elderly and transport them back to the status of dependent children for the rest of their lives."

THE RETIREMENT NIGHTMARE also provides advice on how to fight back with chapters such as, "Who is Guarding the Guardians?," "Alternatives to Protective Proceedings" and "Saving Yourself from Your Heirs and Protectors."

Armstrong notes that while people have become quite adept at estate planning (managing investments, minimizing taxes, and writing wills), most have not planned for physical or mental incapacity during their lifetime.  This is precisely what makes them vulnerable to "protective proceedings."  She recommends a series of legal documents be drafted including durable powers of attorney for finances and healthcare, a living trust, a living will and appointment in writing, ironically, a conservator or guardian.  This should protect you if despite your best efforts to avoid an involuntary proceeding, a judge decides that a guardianship is just what you need.

Armstrong's book included sample legal forms, state-by-state appendices, elderly resources and an extensive bibliography.

ITING THE HAND THAT FED THEM
Reviewed in Research Reports, Vol. LXVII, No. 15, August 14, 2000

The American Institute for Economic Research, Great Barrington, Massachusetts

In the years just ahead, trillions of dollars will pass from seniors to expectant heirs, some of whom can't wait to get their hands on the money.  Diane G. Armstrong's recently published THE RETIREMENT NIGHTMARE: HOW TO SAVE YOURSELF FROM YOUR HEIRS AND PROTECTORS provides cautionary advice for elders whose financial resources may make them targets of unwanted-and unneeded-"protection."

The financial affairs of perhaps as many as a million and a half aging adult Americans now are being managed against their wishes by court-appointed guardians or conservators.  These people are not mentally ill, and they are not incompetent.  But they are asset-rich and "old."

In the aggregate, senior Americans now possess unprecedented wealth and are living far longer than might have been expected even a couple of decades ago (mortality tables developed even in the 1960s are of limited use today).  Not surprisingly, these circumstances have in some instances led to disappointment for expectant heirs and other beneficiaries of estates who may have "counted their chickens before they hatched."  The problem addressed by Dr. Diane Armstrong's THE RETIREMENT NIGHTMARE" is that increasing numbers of such interested parties are using outmoded legal statutes to deprive even competent elders of control over their own financial and other affairs.

Every state (and the District of Columbia) has developed its own body of codes to safeguard the well-being of its impaired elderly when they are considered to be in need of assistance.  These codes, which create and control protective arrangements called "conservatorships" and "guardianships," give state courts the right to appoint a substitute decision-maker to act in the best interests of an adult who has been declared incapable or incompetent to make his or her own personal or financial decisions.  The laws are well-intentioned.  When applied as intended, they provide excellent tools for helping elderly friends and relatives who, as a result of sudden illness or traumatic injury, can no longer make daily decisions concerning personal and financial matters.  Dr. Armstrong presents a strong case, however, that when they are applied in involuntary (unwanted) court actions, they often may be predatory rather than beneficent.

Other than simple greed, a fundamental problem implicit throughout Dr. Armstrong's book is that many such instances would seem to involve what usually are termed an individual's "good" or "bad" decisions.  In the usual course of transaction-especially in the financial marketplace-there are big winners and big losers every day, month, and year.  No one questions the abilities of a thirty-something or forty-something even if he or she squanders great wealth on a bad bet (a lot of this has happened recently in the ".com" equities market).  And no one questions the competence of investors whose conservative holdings may not meet or best market averages-in practice, very few investors do so.  Given that inescapable circumstance, the issue is whether a different standard of performance should be applied to, say, an elderly parent simply because a prospective heir may think he or she can make better financial decisions.

Armstrong notes that, as one thoughtful justice has observed:  "The fact that someone else might, or could make better choices is not the point.  In a constitutional system such as ours which prizes and protects individual liberties to make decisions, even bad ones, the right to make those decisions must be preserved. . . .  The integrity of the elderly, no less than any other group of our citizens, should not be invaded, nor their freedom of choice taken from them by the state simply because we believe that decisions could be better make by someone else."

Nevertheless, she says that under existing state codes almost any adult may petition the court to have a conservatorship or guardianship established over the person of an "alleged incompetent" or "alleged incapacitate" and/or over that person's estate.  It is easier in most states to become a professional conservator or guardian than it is to become a barber. . . .

Beyond the loss of financial control, the personal consequences to elders under a conservatorship or guardian ruling are severe.  If and when the sitting judge decides that you are in need of a conservator or guardian of your person, that court-appointed individual will become responsible for almost every aspect of your personal life.  Social contacts, travel, reading matter, choice of food and clothing, where you will live (in your state or another), your medical and mental health care-all are determined by the appointed conservator of guardian (usually a man rather than a woman) who now has the same power over you as a parent has over an unemancipated minor child.  You will not be allowed to receive and open your own mail, or drive your own car.  Depending on the statutes of the particular state, you might even be moved by your new proxy-parent into a nursing home or board and care facility regardless of your wishes.

When a conservator or guardian of your estate is appointed, you will immediately lose all rights to manage your money, property, investments and business.  To all intents and purposes, this determination of an inability to manage one's estate can prevent you from: lending or borrowing money, controlling your business, making gifts, entering into contracts, receiving or paying money, or spending money frivolously (whatever "frivolous" is deemed to be your surrogate decision-maker-typically a younger person who is often heir to your estate).  Furthermore, you will most likely be prohibited from contracting to hire an attorney in an attempt to reverse your unwanted conservatorship and/or guardianship.  As a target of such proceedings, in Armstrong's view you could be trapped for the rest of your years on earth on the basis of hearsay evidence presented in court by financially motivated or estranged relatives. . . .

LOVE YOUR FAMILY-BUT PLAN AHEAD!

Dr. Armstrong compellingly argues that the statutes currently governing conservatorship and guardianship arrangements are outmoded and in need of complete overhaul. . . .  In her view, and despite their original intent, the present arrangements comprise "a system that almost guarantees court-sanctioned abuse of the elderly. . . ."

You may love and trust your children and other relations.  You may even trust the legal bureaucracy that is charged with "protecting" the elderly and infirm (although probably less after reading this book).  Even so, you would do well to locate a good attorney who understands estate planning, trust and probate issues and make decisions about the delegation of legal powers affecting your financial and other affairs well before circumstances require it.  Today, it is your decision.  Tomorrow, it could be someone else's.

EWARE THE THANKLESS CHILD
Review by Dan Poynter, ParaPublishing, May, 2000

This book is shocking, and alarming.  Diane Armstrong's account is disturbing and tragic.  The message will leave you outraged and frightened.  Money is a great motivator; your money is the lure.  Money changes people.  Your heirs and (presumed) protectors may use your money to take care of you or themselves through involuntary conservatorship/guardianship proceedings.  Suddenly another person will decide how to spend your money, how to manage your property, who makes your medical decisions, where you live, whether you are allowed to vote, and other important rights.

"How sharper than a serpent's tooth it is
To have a thankless child!"
         --William Shakespeare, King Lear, Act 1, Scene 4

You worked hard for your money.  You deserve to enjoy your retirement years hosting grandchildren, traveling and writing your book.  This powerful and much-needed book will frighten the elderly and elevate the frightened.