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Silverman: Proper estate planning can help avoid victimization


The 2021 movie, “I Care a Lot” made waves in the estate planning world.

The plot of the film sees a doctor selects an elderly patient who looks like a good candidate for guardianship: a person of solid financial means who is not too old and infirm just yet, but possibly on the brink of dementia.

A judge signs a court order stating this woman can no longer care for herself and needs someone else to step in and help. That help turns out to be someone on the take, looking to get rich on someone else’s fortune under a legal system unable to prevent such abuses.

Does this sound far fetched?

Several years ago, there was a case in the local media involving a conservatorship and guardianship in Maricopa County, which was under great scrutiny because of the conservator and attorney fees that depleted the ward, Marie Long’s, estate. This sad case is the local “poster child” of the consequences of failing to carefully plan for disability.

Marie Long, as is the case with many elders, was thought to be of diminished capacity and unable to take care of herself or her property. She had no local family — people who could step up and take care of her needs. She did not have in place two quite simple but important estate planning documents — a health care power of attorney and a durable financial power of attorney.

By not having these documents, she did not appoint anyone to make her medical care decisions and manage her finances in the case of incapacity. Neither did she have a living trust under which she would have defined under what circumstances she would be deemed incapacitated and would have appointed a successor trustee to manage her trust assets during her incapacity.

Without an estate plan, an expensive “team” was assembled — a doctor to examine her to conclude she was legally incapacitated, a conservator and a guardian to manage her affairs, a court-appointed lawyer to “protect” her, and the lawyers representing the conservator/guardian.

This led to the Probate Court concluding Marie was incapacitated, appointing a guardian and conservator, a private fiduciary in the business of taking care of other’s needs, against Marie’s wishes.

Hundreds of thousands of dollars later, Marie’s estate was reported to be insolvent, having been spent on conservator and attorney’s fees.

The company that handled her finances was exposed and no longer in business, but of course, too late for Marie.

Just think if Marie had read a column like this when she was in good mental health and appointed the people she trusted to take care of her affairs privately, without the need of probate court, and without spending hundreds of thousands of dollars.

Please let the case of Marie Long be the warning that you need to act promptly so this will never happen to you.

About the author

Louis A. Silverman is a specialist in estate and trust law certified by the State Bar of Arizona.