I have wasted two stamps this morning. Why, you may ask? Well, because I'm having a moral dilemma of the highest order for a lawyer. I am the guardian of a gentleman who recently went to a nursing home. The nursing home will become the rep payee of his Social Security check. So I closed his checking account. My dilemma is: how do I get him the $3.90 from closing the account.
In truth, this is a rather minor dilemma. However, it is a dilemma. As an attorney, I am prohibited from co-mingling client funds with my own. One thought I had was just writing him a check out of my business checking account. Then, on second thought, I thought of putting the $3.90 into my IOLTA (Massachusetts Client Trust Account) and writing the check from that account. Finally, I thought of just sacrificing the $0.10 and sending him four ones. Which does not leave a paper trail.
There are all kinds of things that law school does not teach you. The ethics classes are so cut and dry, and when taking them, you never in a million years think that there will ever be a sketchy ethical situation. In reality, they come up all the time. When I left my former firms, I had no idea of all of the clients or opposing parties my firms had contact with. So, I am required to question my potential clients intensively about their finances and previous legal interactions so that I don't get involved in a case where I am conflicted. Finally, the prohibition on co mingling client funds seems straight forward until you have a situation where you receive $3.90 in cash as the remainder of an account.
Lesson learned: just ask for a cashier's check next time, even if it is only for $3.90.
Tuesday, July 13, 2010
Sunday, June 27, 2010
Specialty Placements
I am the guardian of a wonderful gentleman, Andrew B. Andrew has many problems, but mostly his problem is that he has dementia at the age of 43. This makes his placement extremely difficult because what 43 year old man wants to live at a nursing home? He's left several nursing homes in the past. So the hospital social worker and I embarked on a nine month Odyssey to get Andrew into a placement. Poor Andrew, meanwhile, was at the hospital the entire time.
Luckily, however, Andrew went to Leeway in New Haven Connecticut on Wednesday. Leeway is a wonderful placement for those with HIV. I've been speaking with the social workers this last week getting Andrew settled into his new home. They have volunteers to take him clothing shopping (wonderful, since he's been wearing a hospital johnny for the last nine months), activities, and all sorts of therapies. I'm going to visit Andrew next Friday and I can't wait to see Leeway in person.
Andrew posed a challenge because he falls into a group of people who are not served by our current health care system. As a younger gentleman it is assumed he can live on his own. However, Andrew cannot remember to feed himself and needs reminders to take his complex regimen of HIV medication. What happens to those of us who cannot take care of ourselves but are not elderly? While I don't agree with the State facilities where the incapacitated were housed in previous generations, unfortunately, few organizations or placements have stepped in to take their place. So there is a generation of those with head injuries, early onset dementia, or other major health issues that have few options for skilled care other than nursing homes with the elderly.
My hope is that some day we find a middle ground between locking up the incapacitated among us and leaving them to fend for themselves. Neither is a good option.
Luckily, however, Andrew went to Leeway in New Haven Connecticut on Wednesday. Leeway is a wonderful placement for those with HIV. I've been speaking with the social workers this last week getting Andrew settled into his new home. They have volunteers to take him clothing shopping (wonderful, since he's been wearing a hospital johnny for the last nine months), activities, and all sorts of therapies. I'm going to visit Andrew next Friday and I can't wait to see Leeway in person.
Andrew posed a challenge because he falls into a group of people who are not served by our current health care system. As a younger gentleman it is assumed he can live on his own. However, Andrew cannot remember to feed himself and needs reminders to take his complex regimen of HIV medication. What happens to those of us who cannot take care of ourselves but are not elderly? While I don't agree with the State facilities where the incapacitated were housed in previous generations, unfortunately, few organizations or placements have stepped in to take their place. So there is a generation of those with head injuries, early onset dementia, or other major health issues that have few options for skilled care other than nursing homes with the elderly.
My hope is that some day we find a middle ground between locking up the incapacitated among us and leaving them to fend for themselves. Neither is a good option.
Tuesday, April 20, 2010
Special Guardain
About two weeks ago, I was appointed Temporary Special Guardian and Conservator of an elderly person in a Worcester 'burb. Yesterday, I received a letter from an estate planning attorney who was doing an estate plan for the elder prior to my appointment, Attorney V. Attorney V. asked, and rightfully so, "What is your role as Temporary Special Guardian and Conservator?". Huh. Good question.
Under Section 5-308 of the Massachusetts Uniform Probate Code (MUPC), "If the Court finds immediate action is necessary, it may appoint with or without notice, a Special Guardian who shall have the powers of a general guardian except as the Court may limit. The authority of any guardian previously appointed is suspended while a Special Guardian has authority."
Well, thanks Massachusetts Legislature. That's awfully clear.
Perhaps a background of this story is appropriate. As with many guardianship cases which get litigated in the Probate and Family Court, it all started with a spouse and other relatives not getting along. Then one attorney was appointed, and then another party retained an attorney. Then eventually, because the Judge had no idea who to believe any longer, I was proposed by one of the attorneys and was appointed out of the Judge's frustration.
So, to get back to Attorney V's original question: "What does a special guardian do?", I'd say that depends. First, I see it as a role for a professional. Unlike a guardianship case where an elder is simply unable to make decisions for themselves, a special guardian is appointed because a judge feels that there is something wrong with the guardian's actions. This means that a professional, like an attorney or registered guardian, has the right experience to unravel what really occurred, what was appropriate, and more importantly, what wasn't appropriate.
Secondly, I feel its a role that's limited in time. And finally, its a role that has a different goal from the guardian's role. The Special Guardian, as I see it, is there for one reason: to right the boat. I'm there to review all the financial records, tour the house, speak to the elder care agencies, subpoena documents and crack heads if necessary, but I'm not there for the rest of the elder's life.
My deepest hope and wish is that the guardian in this case has not done anything wrong. One of the most difficult portions of my job as a guardian and elder law attorney is to see the loneliness and pain that comes with dementia and old age. I certainly don't want to add to those feelings of isolation to this couple. But, I also must protect the elder.
I can't write much more about this particular case, because I don't want to violate this couple's anonymity. But, needless to say, it creates interesting problems. How do you evaluate whether one spouse has done what's right for another spouse? How do you assess the heir's motives, compared with those of the elder's spouse? Who has the right to spend the elder's money? If the allegation is that one spouse misused the other's funds, do you then do an estate plan allowing the alleged perpetrator to receive the funds in a medicaid qualified transfer just so that the elder can receive state benefits? Perhaps I simply say a pox on all your houses, petition the court for the authority to do an estate plan, and leave everything to the elder's favorite charity in their will!
While the last thought is tempting, it is not wise. The most difficult part of this practice, at the moment, is to have the wisdom to know to crack heads together, and the wisdom to know when to tread softly and carry a big stick. My zeal for this new position and area of practice make me want to crack heads. But, as in all things, prospective is everything.
So, for now, I do what I've been doing before this. I visit the elder, gather records, write letters, and push slightly at the spouse to get what I need done. And at the end of my 60 day appointment, I'll tell the judge what I've found. Sometimes, the greatest wisdom of all is the wisdom to know what I can change, to know what I can't change, and to know the difference.
Under Section 5-308 of the Massachusetts Uniform Probate Code (MUPC), "If the Court finds immediate action is necessary, it may appoint with or without notice, a Special Guardian who shall have the powers of a general guardian except as the Court may limit. The authority of any guardian previously appointed is suspended while a Special Guardian has authority."
Well, thanks Massachusetts Legislature. That's awfully clear.
Perhaps a background of this story is appropriate. As with many guardianship cases which get litigated in the Probate and Family Court, it all started with a spouse and other relatives not getting along. Then one attorney was appointed, and then another party retained an attorney. Then eventually, because the Judge had no idea who to believe any longer, I was proposed by one of the attorneys and was appointed out of the Judge's frustration.
So, to get back to Attorney V's original question: "What does a special guardian do?", I'd say that depends. First, I see it as a role for a professional. Unlike a guardianship case where an elder is simply unable to make decisions for themselves, a special guardian is appointed because a judge feels that there is something wrong with the guardian's actions. This means that a professional, like an attorney or registered guardian, has the right experience to unravel what really occurred, what was appropriate, and more importantly, what wasn't appropriate.
Secondly, I feel its a role that's limited in time. And finally, its a role that has a different goal from the guardian's role. The Special Guardian, as I see it, is there for one reason: to right the boat. I'm there to review all the financial records, tour the house, speak to the elder care agencies, subpoena documents and crack heads if necessary, but I'm not there for the rest of the elder's life.
My deepest hope and wish is that the guardian in this case has not done anything wrong. One of the most difficult portions of my job as a guardian and elder law attorney is to see the loneliness and pain that comes with dementia and old age. I certainly don't want to add to those feelings of isolation to this couple. But, I also must protect the elder.
I can't write much more about this particular case, because I don't want to violate this couple's anonymity. But, needless to say, it creates interesting problems. How do you evaluate whether one spouse has done what's right for another spouse? How do you assess the heir's motives, compared with those of the elder's spouse? Who has the right to spend the elder's money? If the allegation is that one spouse misused the other's funds, do you then do an estate plan allowing the alleged perpetrator to receive the funds in a medicaid qualified transfer just so that the elder can receive state benefits? Perhaps I simply say a pox on all your houses, petition the court for the authority to do an estate plan, and leave everything to the elder's favorite charity in their will!
While the last thought is tempting, it is not wise. The most difficult part of this practice, at the moment, is to have the wisdom to know to crack heads together, and the wisdom to know when to tread softly and carry a big stick. My zeal for this new position and area of practice make me want to crack heads. But, as in all things, prospective is everything.
So, for now, I do what I've been doing before this. I visit the elder, gather records, write letters, and push slightly at the spouse to get what I need done. And at the end of my 60 day appointment, I'll tell the judge what I've found. Sometimes, the greatest wisdom of all is the wisdom to know what I can change, to know what I can't change, and to know the difference.
Sunday, April 11, 2010
Welcome and Hello
Welcome and Hello! This is the inaugural blog post. Please allow me to introduce myself: I'm Melissa Moore. I'm an attorney and guardian who, after four years at law firms, decided to go it alone. I act as a guardian for the elderly as well as practicing family law. It has its trying moments, but then, what doesn't?
A little more about me: I've been practicing law for about five years. I have a dog named Sadie, a boyfriend who is a lawyer as well, and an average family. I enjoy knitting, wine tasting, and sailing. I've taken up golf, but have no talent to speak of, so I won't speak of it.
I look forward to sharing my lessons in law and in life as I navigate uncharted territory (at least for me). Cheers!
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