In this episode of Senior Living LIVE!, Carl Archer, of Archer Brogan Elder Law & Estate Planning, joins Melissa to talk about the difference between guardianship and conservatorships.
We learn about the guardianship process, the part courts play a part in the process, the various types of guardianship, and navigating the day-to-day aspects of being a guardian.
- Hello everybody. And welcome into "Senior Living Live." My name is Melissa. As always, I hope you're having a fantastic day today. Well, we have the premier elder care law firm in the state of New Jersey, joining us today to talk about guardianship and all the things that you need to know and how to help your loved one when they can no longer help themselves. Carl Archer of Archer Brogan, LLP is here with us. He carved out some time out of his very busy schedule to help all of you, all of our viewers across the board with this topic. Carl, thank you so much. How are you today?
- You know, living the dream. How are you today?
- Living the dream just like you. Tell us a little bit about yourself and your firm.
- So Archer Brogan is an elder law boutique, which is to say that elder law and related issues, estate planning, guardianships, that kind of related litigation is all we do. You know, I like to tell people we don't do divorces. We don't do traffic tickets. We don't do, you know, personal injury lawsuits. That's elder law and related issues is all we do for a living. And so I'd like to say, we've gotten fairly good at it. We have five offices in Central and Southern New Jersey. We have a staff of about 24. It's a pretty good size elder and disability law firm. And we have a number of really high profile elder law attorneys on our staff that I have the privilege of working with on a daily basis. So that I think is pretty much us. I am the immediate past Chair of the State Bar Association's Elder and Disability Law Section. I have an elder law attorney certification from something called the National Elder Law Foundation. Governor Christie picked me to be on a task force against the abuse of elderly and disabled persons. So, I mean, I've been around the track a couple of times, myself. I tend to let the smart people on my staff do most of the talking, but, you know, I've had my moments.
- I'd say more than a few, more than a few moments. Excellent background. And I know that today in this topic, in our conversation, while you are in the state of New Jersey, we're gonna try to broaden it out a little bit because all state laws are a little bit different. So we want everybody to keep that in mind as they listen to this video. So let's start by sort of defining some terms that we're gonna be using throughout this interview. What is the difference between guardianship and conservatorship?
- Okay, so in most states, it is my experience that what I might call a guardianship is actually called a conservatorship. And I can speak to New Jersey and New York and Pennsylvania, 'cause those are the states in which I, and the firm are licensed. But in Pennsylvania and New York and New Jersey when you have a guardianship, a guardianship is essentially the court appointing a person to act in a fiduciary capacity. In other words, in the best interest of that person as opposed to somebody, yourself, with regard to either the financial affairs or the healthcare affairs or both of an individual. In New Jersey there is a thing called a conservatorship. It is highly technical. It's a little arcane. The idea being that it is just financial things and it is somebody who has the ability to deal with them, but just wants somebody court appointed to help them, which is it's odd and it doesn't really happen very often. But oftentimes there is some sort of a difference. And a lot of times the difference is, is it a guardianship just for a minor or is the guardianship just to deal with healthcare issues or just to deal with financial issues? So sometimes you'll hear those words thrown around that way, and a lot of times they're interchangeable.
- Gotcha. Okay. That makes sense. Good. So each state, you know, has its own processes, has its own requirements, but who can generally be designated with these particular titles and does it have to be a family member? Can it be a friend? I mean, can it be anybody?
- So this tends to get interesting. But most of the time it is a family member. Well, in most states, there's actually like a statutory preference for family members. Now there's good public policy reason for that, right, because who's most likely to act in the best interest of a person is someone who's family. In theory, that's how that's supposed to go. I mean, Hollywood might make you feel differently. But anyway, this is what we have. You know, so very often it's a spouse or a child or something along those lines. But somebody else can absolutely serve as a guardian for a person. It depends on the availability of other people. It depends on the availability of family and so on. So can a friend do it? Yes, absolutely. Sometimes though, there's literally nobody, you know? You'll see a situation where a hospital files a guardianship petition 'cause they have somebody sitting in a hospital bed and nobody's able to make decisions for them, and nobody steps forward. There's either no family, they can't find them, whatever. And so very often there is a state body that the person will become quote, unquote, a ward of the state. And you'll hear people who throw that term around, and most of the time it doesn't apply, but here literally some state agency is the guardian for a person. And it's a shame when that happens.
- Yeah, and we're hoping that nobody's who's watching here has to go through that or has to, you know, experience that certainly. But you know, we ask those questions because, you know, as we all tend to get older some people are getting older and they don't have any children. And then their siblings maybe passed and their parents have passed. And so, you know, it starts to become, well, who can look after me at this point in time, in my life? So both of these things, when we talk about the guardianship and the conservatorship and how they could be sort of interchanged, they're legal proceedings that obviously happen, proceedings in probate court. When clients call you specifically asking about the process what do you tell them? How quick is it, how do they get started and why is it important to have people like you in their corner?
- Okay, so it's not strictly speaking an answer to your question, but I'm gonna point out anyway that if people take away anything from anything we are talking about, a good, solid, durable power of attorney document and a healthcare decision making document like a healthcare proxy or a living will, will short circuit this entire process. And they can be done more quickly and at a 10th of the cost. So really important. But let's just put that aside because by the time somebody has called to ask us about a guardianship, it's usually because at this point that is out the window. The person can't sign the document. Doesn't understand it, so on. So by and large, what we tell people is that in order to file for a guardianship you need certifications from medical professionals saying that the person you are filing it for does not have the ability to make decisions for themselves. It is the burden of the person filing the guardianship application to prove that by some high standard. Because ultimately what you're doing with a guardianship is you are taking away that person's civil rights, 'cause you are awarding them more or less to their guardian. So it is really important that the court be convinced that this person lacks the ability to make decisions for themselves. This process has fairly technical requirements in the pleadings, in the complaint. And you know, there's notices that you have to give to various people in the guardianship. And so when folks call a lawyer, it's very often because the lawyers do this regularly so the lawyers know what the notice requirements are supposed to look like. And if you're doing it for the first time, you can get yourself gummed up in a variety of different ways, at a variety of different parts of the process. It is my observation in the states where I practice, New Jersey and to some extent, Pennsylvania, I don't really do guardianship work in New York because we're a bit from New York, but fine. From the time you file, you're looking at six to eight weeks before you get the judgment from the court. And then it is a few weeks thereafter before you actually get the paper from the county office in question. In Pennsylvania, you'll hear it referred to as the Orphan's Court, which again, these are words from a long time ago. In New Jersey it's called the Surrogate's Court. And I find these names really interesting and nobody else does so we won't get into it. But you know, so you're looking at, whatever it could be, 6, 8, 10, 12 weeks before you have the documents you're after. And so, you know, it's not a process that moves so quickly that if there's an emergent issue that you can get it done. And so, you know, these things just don't tend to work out in a way that satisfies people who feel as though they are in the grips of a crisis. The court will also very often appoint another attorney to represent the alleged incapacitated person. And so what I end up having to tell potential clients is you're gonna pay for your doctor's certifications. You're gonna pay for me. You're gonna pay for the filing fees and the notices. You're gonna pay for the court appointed attorney. You're gonna pay an insurance bond 'cause the court is gonna require you to be bonded in order to deal with the other person's assets. But before you know it, you're paying money out all over the place. And so it's amazing how expensive this process can get. And you know, I don't even see near all that money.
- Yeah, that's incredible, which is why, it goes back to what you said in the beginning, it goes to our next question about, you know, first, don't wait for a crisis. We tell people that all the time. Try to plan ahead. I mean, it's going to be the easiest thing that you can do, the most efficient way that you can get things done, right? So if somebody is now watching this and they listen to you and they're in the process of planning, they know they have an elderly parent, mom or dad, or somebody that's gonna need some help in the future, let's go back and talk about those advanced directives and the healthcare financial power of attorney. Let's talk about these documents and how they sort of allow you to bypass everything you just mentioned about guardianship and how difficult that can be.
- So you look at what the process I talked to you about in New Jersey, for example, could very easily cost, you know, $8,000 or more by the time you're done paying this one and that one and the other one. And it could cost more than that. I don't know. But you know, whereas if you talk to a lawyer about estate planning documents, it's a fraction of that. And you know, the turnaround time in my office to do a will, a power of attorney, a healthcare proxy, from the time I meet the person to the time they sign the documents is two weeks.
- And it's not 12, it's two. And we have everything you need. What we always tell people is, and nobody is ever like, "I'm overjoyed that I go get to do my estate documents," because it's an implicit admission that, you know, that I have mortality and that there will be some end somewhere and at some point I will not have the ability to make decisions. And that's an uncomfortable fact for people to wrap their head around. What I always tell people is it is the single biggest gift you can give your family. You know, money is fine, but you can spend money. Peace of mind is, it lasts. It's extremely important. And a durable power of attorney document allows, a well drafted one allows you to make all manner of financial legal decisions for somebody. It allows you to do estate planning. It allows you to do asset planning if that's what you want them to do. And it's effective right away. And it's effective during a period of disability, which is beautiful, all right? You can use that to bypass a lot of red tape. You can get through a lot of this court process. You don't have to file anything. You generally don't have to file the power of attorney unless you're selling a piece of real estate. If the bank gives you a hard time, especially in New Jersey, if you have a power of attorney that's less than 10 years old, you can pound the bank and the bank will do exactly what you tell them because there's a statute that says they have to. It's beautiful.
- A healthcare document, similarly, I say healthcare document because there are lots of healthcare documents, living wills, advanced medical directives, healthcare power of attorney, healthcare proxy. You know, there's a nonprofit that has a document called a Five Wishes document. They're all healthcare documents. The idea is that they do one of two things. Who's gonna make my decisions? What are my decisions? Just two different things, okay? And some people like one versus the other, some people want both of them put into a document, whatever you do, if you have something in place so that somebody can make decisions and they have some guidance as to what that decision is, you've taken the guesswork out of it. You've communicated effectively to your loved ones what you want done just in case you can't make those decisions so that they can give you the quality of life and the goals of care and the medical care at the end that you really want. And that's an enormous burden off of people. That's what I want people to accomplish.
- Yeah, and I think I heard it a few times in the conversation there, and that was a good document, one that's well written, right? So when people go online, Carl, and they're looking and they say, "Well, I could just get this form online and just fill in the blanks," what do you say to people who do that? I mean, you're the whole purpose is to bypass the red tape and to make things easier. Are they making them making things harder on themselves by just pulling up a template online?
- You know, what they might be, and they might not be.
- Okay. Fair.
- I'd love to say to you that, you know, there's no circumstance under which you could, if you go online and you get a document it'll never work out and whatever else. Listen, there are forms online and people look at them, especially healthcare forms, okay? The healthcare forms are designed to be extremely accessible and extremely user friendly. And a lot of times where you get caught up on the healthcare documents is that, you know, there are witnesses, but the witnesses can't be the people you've appointed to be the healthcare agent. And so, as long as you get the witnesses right, those will generally be okay. The power of attorney's a little trickier because 90% of it is fine. It's the 10% around the edges that can get a little bit nasty that you gotta be careful about. And people do use these documents that they find online and they sometimes will work out fine. And sometimes they won't. And the problem is you generally don't know until it's too late. And so, you know, people will wanna hire lawyers sometimes and people won't, and there's room for both of those types of people in this world. Lawyers are not for everybody. But you know, a lot of times if you're doing that or if you're going on some website and you're gonna spend $50 to download a set of templates, I mean, be careful.
- Be careful.
- Good advice. Very good advice. All of it so far. This topic is, you know, part of what you do on a day-to-day basis, obviously. Your team does a lot in terms of elder care in general. But if you had to pick one of the top issues that your firm seems to take on day after day after day, what would that be?
- So, one of the things we really pride ourselves on is we do a lot of crisis-based nursing home and assisted living work. We will get people who call us on a very regular basis, "Mom fell, dad had a stroke, they're in the hospital, they're going to rehab. They're telling us they have to move them to rehab right now. We don't know where to go. They're telling us the rehab is going to turn off the payment in two days and we gotta move them home and we can't move them home. And we need to put them somewhere and they're asking for lots of money and are we gonna lose our house?" And their hair is on fire. Well, maybe there's a problem and maybe there isn't. A lot of the healthcare system is built on fear because fear moves people. And so the important thing here for folks is that they need to understand that they have a little more agency, they have a little bit more power here than they think they do. And when we talk to people, one of the things we're proudest of is that we try to take the fear away and give people knowledge and empower them and then let them make the decisions they need to make. My partner who's in our office by the shore does a lot of, much more sophisticated special needs and estate planning, and that's stuff that helps intergenerationally, that's things that help folks with special needs. And that is really fantastic work. And it handles the other side of the spectrum where you're handling people who are being very deliberate in thinking about not just now but 10, 20, 50 years from now. And then you get people who don't think about that at all and are thinking about 10 to 20, 50 minutes from now. And, you know, we can handle people who will call either one of those things, and we're very proud to be able to do that.
- You have been quite a wealth of knowledge I think for anybody that's watching this right now. And if they take anything away from it, it's that there are people like you that are out there that are advocating for those who may not feel like they have a voice. And I love the fact that you said that your job really is to empower and to provide the information and the facts so that they can make the proper decision for them at the time. You are able to cut through the minutia and cut through the problems, take emotion and separate it from facts. And I think that with what you deal with on a day-to-day basis that is, it's certainly a skill that is much needed. And we appreciate you taking the time to help all of our viewers understand a little bit more about elder care law and the things that they can do to be better prepared at the future.
- It's been my pleasure. Thank you so much.
- Yeah. Thank you so much, Carl. Now, if you enjoyed this video with Carl and would like to see more just like it, you can head on over to our website. It's www.seniorlivinglive.com. Our videos are available 24/7 and they're all about senior living. Thank you so much for being a part of "Senior Living Live." Have a great day, everybody.