Protecting Aging Parents: Legal Steps

At some point, many West Virginians are faced with taking over their parent’s finances and care. As part of the ongoing series, “Getting Into Their Reality: Caring For Aging Parents,” News Director Eric Douglas spoke with Franki Parsons, a Charleston attorney who specializes in estate planning and works with families who may need a conservatorship or a guardianship.

This interview has been lightly edited for clarity. 

Douglas: What does it take? Or what condition does a person have to be in where the family starts thinking about the need to establish a guardianship for a person? 

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Parsons: You and I have talked before about a movie that came out on Netflix a couple of years ago, during the pandemic. It was called, “I Care a Lot.” The premise of the movie was a woman owned a business, essentially being a professional guardian. Only in the movie, they were just assigning people randomly. That’s not how it works. I want to make that clear. There is a process to make sure that the person who we believe needs a guardianship, in fact, does. My clients who come to me, nine times out of 10, have an adult parent who is showing outward signs of diminished capacity.

Douglas: Are you talking physical capacity or mental capacity? Or both?

Parsons: Oftentimes both, but having diminished physical capacity, meaning we’re having a hard time getting around, is not a criteria to have a guardianship. We are dealing with people who can no longer make day to day basic decisions for themselves.

Douglas: How does that process start? You say, “Mom’s not doing well. She can’t handle her own checkbook anymore.” Do I call an attorney first? Do I call the doctor? I mean, where do you get started in that process?

Parsons: Each story unfolds its own way. I will insert here, you brought up the checkbook. In West Virginia, we have two different roles. Guardian is guardian of the person and their affairs, a conservator oversees finances. Oftentimes, that’s the same person; whoever gets appointed guardian is considered a conservator. Sometimes, we don’t need both. It’s very situation specific. Normally, what I’m dealing with is an adult child who comes to me and says, “My mom is not doing well,” and outlines the ins and outs of what’s going wrong.

What we will need as part of this proceeding is an affidavit from a physician outlining the mental condition. So at some point, a doctor is going to need to be involved. You can’t just come to me irritated with your mom and say, “I need to be her guardian.” That’s not how it works. We need a physician’s documentation that there is in fact a diminished mental capacity or some type of issue of that nature.

Douglas: Hypothetically, my parent is not doing well. I’ve talked to my doctor, they’ve signed a form. 

Parsons: There is an established form. It’s part of what I call the guardianship package. And to be fair, and for complete transparency, I do this for a living. However, you or anyone can get it online through the county fiduciary office and go through this process on your own. You don’t have to have an attorney. Often our clients have tried to do it on their own, and got overwhelmed by the legalese, or the process. And then they come to me to help them. I have other clients that come to me at the outset because someone else they know has been through it and advised them to get an attorney.

Douglas: In my hypothetical, I’ve talked to my doctor, they’ve agreed that my parent is not doing well. I come to an attorney. 

Parsons: You’ll complete the petition. And it’s basic information, the person’s name, address, age, and then what we call in the code “interested parties.” Let’s say you have three brothers and sisters. All of the children of that person will be listed. And the code prescribes, if you don’t have kids, you know who we go down the line of who should be notified as an interested person. Official notice goes out that way.

There’ll be a period after that until the hearing is scheduled. It goes in front of a Mental Hygiene Commissioner. Anybody in this period can file a response and objection if they have any concern about who is going to be appointed guardian. I have had that happen. Lots of times, those are children who maybe don’t live in the area and don’t have a thorough grasp on the condition of their parent. And sometimes it’s just plain denial. You don’t want to accept that your parent is in this shape.

But there’s a lot of family dynamics that go into this work. There are several steps and safeguards that we are not violating someone’s due process, or their legal rights of any variety, by just assigning them a guardian.

Douglas: That’s exactly what I was thinking. This isn’t just “Oh, I’m going to take over my mom’s estate and I’m going to whip out her checkbook and start writing checks.” There’s a number of steps and this isn’t something that happens overnight. I assume this probably takes a couple of months by the time it’s all said and done. 

Parsons: Usually, yeah. It’s not as long as other legal processes that I’m involved in, but from start to finish — two to three months, depending on if I’m waiting on that physician’s affidavit — sometimes takes a while, doctors are very busy. Once you have all the information, the courts handle those fairly quickly.

Douglas: What does this do for my aging parent? What’s the purpose? What’s the advantage of a conservatorship or guardianship?

Parsons: If someone is truly in that condition where this is a need, you’ve essentially stepped into the shoes of that person. And this ties back into what you and I’ve talked about before, and just general estate planning, powers of attorney are very important. Those are what I call your “life planning” documents. So a financial power of attorney and medical power of attorney are used while you’re still alive, but not able to make decisions for yourself.

If you’re in a coma, for instance, that financial power of attorney can be very crucial to whoever may be helping run your affairs like making sure your mortgage is paid, or any bills or obligations you have while you’re incapacitated. Those are what I call life planning documents. If someone has a well drafted financial power of attorney, that person, usually an adult child, can perform a lot of the functions and roles that a guardian does, actually almost identical.

Same thing with a medical power of attorney. Part of our medical power of attorney, we include a section or a provision where the person making the power of attorney can say who they would want to be their guardian or conservatorship.

Douglas: So there are life planning documents that help you take care of most of the financial things, even the power of attorney or the medical power of attorney. I guess, one of the roles for the guardianship is, if you have to send your mother to a nursing home, or make those kinds of major life decisions, these are major life plan issues. What can you do to prepare? 

Parsons: I wish I had an answer for that. I don’t know that you do prepare people for that experience, and I’ve personally been through it. That’s how I got into this part of law. I don’t know that you can prepare someone for that. What you hope is that your parent who is in this situation is agreeable to this.

Douglas: There was a report just recently, I think it was 13,000 or 14,000 financial elder abuse cases reported in the state of West Virginia annually. 

Parsons: I’m surprised that’s all there is. But think about this, a vast majority of those cases probably go unreported.

Douglas: On one level, this guardianship and conservatorship makes that harder with somebody else looking over your shoulder. So it’s an extra layer of protection for the person who has diminished mental capacity as well.

Parsons: Full honesty, things can fall through the cracks that way, too. There were brothers who were co-guardians and conservators. Long story, but one brother got mom’s bank statements and saw that the other brother was using her account for various recreational purposes. So we had to go back to the mental hygiene commissioner and have him removed, which was terrible.

The code spells out the duty you have as a guardian and conservator and also, with a financial power of attorney, you can’t just go about and do whatever you want. There are repercussions if you misuse these powers.

Douglas: What haven’t we talked about? 

Parsons: One thing I do want to say that I think people in general need to hear. We attorneys have heard it all. People will come in and sit down in my office with me and say, “I am so embarrassed to tell you this.” Don’t be, because number one, that’s what we’re there for is to help you through situations that require a legal navigator. Number two, you would have no reason to know how to do a lot of these things. You’re segueing into this part of your life where your parents now need to be parented. If you’ve never been there before, and you’re not a lawyer, you wouldn’t know what to do. There’s no shame in not knowing.