Caring for a family member who has lost the ability to care for themselves is hard. In addition to providing physical care, relatives can find themselves making difficult financial and healthcare decisions, choices made all the more fraught by conflicting priorities and complicated family relationships. Far too often, decision-making conflicts lead to estrangement. Not even the rich and famous are immune: notoriously, the families of Casey Kasem, Tim Conway, Etta James, Glen Campbell, Nichelle Nichols have fallen apart over disputes over their care and the management of their estates.
The best way to avoid this kind of family conflict—and to make sure your wishes are clearly communicated—is to have a well-designed plan that includes an advance directive, powers of attorney, and a named guardian who will oversee your care when you're unable to care for yourself. An experienced trusts and estates or elder law attorney can help create an individualized plan that meets your needs.
Guardianships and Conservatorships
When a person without a legal plan in place for their care becomes incapacitated, a probate court appoints a guardian to oversee their living arrangements and healthcare, and a conservator to oversee their finances. Guardianship is a tremendous responsibility, and popular culture lately has made the situation look ripe for exploitation, from Britney Spears' struggle to be released from a financial conservatorship controlled by her father, to the movie “I Care A Lot,” which tells the story of a woman who becomes the guardian for elderly people and steals their property.
Abusive or exploitative guardians and conservators are rare, but people who can no longer look after and advocate for their own interests are in a vulnerable position. In Michigan, the Estates and Protected Individuals Code (EPIC), which outlines the process for appointing a guardian or conservator, protects incapacitated persons by including opportunities for the individual or family members to challenge courts' decisions. In fact, Michigan Attorney General Dana Nessel established a task force to address elder abuse, exploitation, and neglect, and has proposed revisions to the state's guardianship laws to make sure guardians are qualified for the job.
When an individual becomes incapacitated and does not have a Health Care Power of Attorney in place, someone will need to petition the court to appoint a guardian to make those decisions. This will be followed by a public hearing during which the incapacitated person and their family members can disagree with the need for a guardian or object to the individuals being considered as guardian. During this hearing, the court must find “by clear and convincing evidence both that the individual for whom a guardian is sought is an incapacitated individual and that the appointment is necessary as a means of providing continuing care and supervision of the incapacitated individual, with each finding supported separately on the record” (EPIC Sec. 5306).
The probate court can also appoint a guardian to oversee financial decisions on the incapacitated person's behalf. The court may appoint an individual, a corporation, or a professional conservator to make these decisions. Whoever is appointed conservator will assume a fiduciary duty to safeguard the protected individual's assets.
A Michigan court can only appoint a conservator after finding that the individual is unable to manage their property and business affairs. The court will also consider whether the incapacitated person has property that will be at risk if proper management is not provided, or needs money for their own support, care, and welfare, or for the support of their dependents (EPIC Sec. 5401).
With in-home care services averaging $24 per hour and people in declining physical or mental health sometimes needing daily care for years, the potential for conflict among family members and heirs is considerable. Some are likely to worry that someone with bad intentions could take advantage of the incapacitated person, others will worry that the care services are inadequate, and others may be worried that spending so much on care could deplete the inheritance they were hoping to receive.
If a family cannot find agreement and work through these issues together, and in the absence of an advance directive naming a guardian and giving them power of attorney, a judge may decide to designate one family member as guardian or appoint a public guardian. Public guardians are total strangers to the incapacitated person; most often, they are appointed for people who do not have close family members or a reliable network of friends.
Casey Kasem's Family Feud
The ongoing saga of the Kasem family illustrates some of what can go wrong in a guardianship dispute. The legendary radio disc jockey and voice actor died in 2014 after suffering from Lewy body dementia, but the legal disputes between his adult children and their stepmother that began during his illness continued for years after his death. His children alleged that their stepmother, Jean Kasem, improperly cared for their father and filed a wrongful death lawsuit against her. In response, Jean Kasem sued the children, alleging wrongful death and saying they had engaged in a “homicidal guardianship scam.”
Jean and the children began fighting over who would be appointed guardian in 2013, when Casey Kasem was no longer to manage his own care, or even speak. Increasingly, Jean limited the children's ability to see their father. At one point they even reported their father missing, only to later learn that Jean had moved him to another state without notifying them. A judge eventually had to order that the children and Jean be able to visit him on different days.
Kerri Kasem, Casey's daughter, described the year that they fought over how to manage her father's care as the worst year of her life. She went on to start a non-profit foundation to promote legislation that prevents elder abuse.
How to Protect Your Rights and Prevent Drama
Michigan's EPIC law defines an incapacitated individual as someone “who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, not including minority, to the extent of lacking sufficient understanding or capacity to make or communicate informed decisions” (EPIC Sec. 1105).
If you become incapacitated without a legal plan already in place, your family members may petition the court for guardianship or conservatorship, enabling them to make medical, financial, and care decisions on your behalf. In Michigan, probate courts have the sole authority to appoint a guardian or conservator. This is why it is so important for every adult to have a comprehensive estate and life plan, no matter their age. An experienced attorney will likely talk to you about creating an advance directive so that your family can avoid guardianship disputes—or the appointment of a public guardian—and ensure that the people you've carefully selected are in charge of decisions regarding your healthcare and living arrangements.
Types of Advance Directives
An advance directive gives instructions for your healthcare or end-of-life care if you become incapacitated. Three basic types of advance directives are commonly used in Michigan: a durable power of attorney (POA) for healthcare, a living will, and a do-not-resuscitate (DNR) order.
A durable power of attorney for healthcare is also known as a healthcare proxy or a patient advocate. The POA allows you to appoint someone to make medical and personal care decisions on your behalf. (This person must be over the age of 18.) You can also include a statement of wishes regarding the type of care you would like. If you are incapacitated, your advocate will consent to or refuse medical care on your behalf, arrange for nursing care, and make end-of-life decisions. In the absence of a designated patient advocate or a legal document identifying your end-of-life wishes, Michigan law may require healthcare providers to maintain life support even after the hope of a full recovery is gone.
In many states, advance directives are called “living wills.” A living will also spells out your wishes for healthcare if you are incapacitated, but it tends to be more detailed than a power of attorney. Michigan law does not specifically recognize “living wills”; instead, advance directives are used to address several end-of-life scenarios. Your advance directive can also detail your wishes concerning lifesaving treatments like CPR, mechanical ventilation, tube feeding, dialysis, antibiotics and other medications, palliative care, organ donation, and body donation after death.
While you can address your wishes with respect to resuscitation in an advanced directive or living will, you don't have to have one of these documents to establish DNR or do-not-intubate (DNI) orders. Your doctor can include your preferences in your records. However, having them as part of an advanced directive is more effective and thorough.
Michigan also has a Peace of Mind Registry, a statewide registry service that can store your advance directives and allow healthcare providers to access them. This can ensure that providers follow your wishes in an emergency, even if they conflict with family members' directions.
You can also arrange to become an organ donor or donate your body in the event of your death in Michigan. Under the Michigan Uniform Anatomical Gift Law, you can make an anatomical gift by designating it on your driver's license, making a statement in your will, or communicating your wishes during a terminal illness or injury to two or more adults, at least one of whom is a disinterested witness.
Powers of Attorney
A power of attorney is one of the most important documents in your care plan. There are many types of powers of attorney in addition to a durable medical power of attorney, serving varying purposes. However, many people use powers of attorney to allow an agent to manage their finances, assets, and property. Careful selection of a power of attorney and agents will guarantee that people you trust are in charge of your finances at a vulnerable time. Your attorney can help you find the right combination for you and your care plan, choosing from a durable power of attorney for your finances, general powers of attorney, limited powers of attorney, and springing powers of attorney.
Revocable or Living Trust
Another option to manage your finances during incapacitation is a revocable trust, also known as a living trust. A living trust is a document that names the beneficiaries of your assets and a manager or trustee of those assets on behalf of the beneficiaries. In a revocable living trust, you place your assets in the trust and name yourself as the trustee. You maintain control of your assets and can revoke the trust at any time.
In the event of your death or incapacity, a successor trustee named by you takes over management of the trust on your behalf or on behalf of your beneficiaries. A living trust allows you and your beneficiaries to manage your assets while avoiding the expensive and time-consuming process of court oversight or probate.
Hire an Experienced Elder Law Attorney
The best way to avoid family disagreements over guardianship is to put a plan in place for your healthcare and end-of-life care as soon as possible. Making a plan, putting advance directives in place, and appointing agents you trust to make decisions about your healthcare and life arrangements can ease the burden on your family. With clearly delineated arrangements, the people you love can come together with a clear sense of direction and little room for conflict.