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Litigation Strategies Part II: Telling Stories

Financial exploitation of vulnerable adults takes place in the shadows.

When these cases finally get to court, the object of the exploitation is either dead or too demented to explain what happened.  So the trial becomes a process of trying to recreate an event to which the alleged perpetrator is probably the only witness.

Was it a gift or a grab?

What I find most interesting and enjoyable about these cases is that, as much as any other type of litigation, the result (who wins) is often a function who has the better lawyer – and more precisely, which lawyer is better able to take the admissible evidence and shape it into a believable story.

Was this the good daughter who took care of Mom when the other children wanted nothing to do with her and who Mom understandably wanted to financially benefit more than those others?; or The bad daughter who, left alone with her demented mother took advantage of her position of trust and her mother’s cognitive impairments to benefit herself?

The discoverable facts could support either story.  The better lawyer will control the story line of scrimmage and force the case to be developed along those themes that support their version of the case.

The end game is the trial.  At that point it’s about admissible evidence, fact and innuendo. Forget about the law and jury instructions, the fact finder (judge or jury) is going to apply an old-fashioned smell test, and whichever party can tell a story that passes that test is the party that will prevail.

Litigation Strategies Part I: I Love You But…

Litigation clients often misunderstand the likelihood of recovering legal fees.

They believe, understandably so, that because the other party (whoever that may be) did something bad so as to cause the litigation to be necessary, that someday the Court is going to order that the other side must reimburse them for the thousands (tens of thousands) of dollars they have spent or are spending for legal fees in their case.

In so many words, I say to them: “I love you but don’t ask me about getting your legal fees paid by the other side again. I will see what we can do, but the likelihood that you will recover any significant amount of your fees is slim.”

It’s just the way it is.

The American legal system is built on the idea that each party pays their own fees.  Pretty much all other legal systems operate on the idea that the losing party pays the legal fees for the prevailing party.  I won’t get into the relative merits or demerits of each system, but I think the American rule is best.

While there are fee shifting devices built into the process, those opportunities are generally limited, and my experience with Courts is that they are very hesitant to exercise their authority to shift costs in any meaningful way.  A lot of that has to do, again, with the American rule.

The truth is that outspending an opposing party is a valid and often useful litigation strategy that has to be considered at the start of each case.  Can you keep up with the other side, can you outspend them, or can they wear you down simply by keeping the litigation going and outspending you?

An important variation on this calculation that comes up in many probate litigation cases is that the party in control of the estate (personal representative, trustee, conservator, as the case may be) has access to the community pot to finance their case.  At the outset of many cases, this issue is raised, and the party not in control will seek to obtain an order preventing the party in control from using those funds to finance their legal costs.  There are several theories which may apply, but in the end, the general rule is that the party in control can use the estate funds to pay their legal bills.

The Rich are Different

In his short story “Rich Boy” F. Scott Fitzgerald wrote:

“Let me tell you about the very rich. They are different from you and me. They possess and enjoy early, and it does something to them, makes them soft, where we are hard, cynical where we are trustful, in a way that, unless you were born rich, it is very difficult to understand.”

Estate plans for rich people are different too.  There are the usual decisions and concerns about taxes, trustees, accountings, charities, and individual beneficiaries – all enhanced by the larger numbers involved.  But more uniquely there is the realization that too much easy money ruins people.

It is common to recognize that people who create wealth – the “first generation” – usually don’t care that much about money.  They have been poor (or at least middle class), have taken risks, and have struggled.  Most have failed more than once.  Their perspective on life is shaped by those struggles.  Wealth to them is secondary to success, and success is good but not all good.  They are proud of what they achieved, but often also regretful about what they sacrificed to get there.  As a general rule, they have middle class values: hard work, humility and an appreciation that they are not better than anyone else – just more fortunate.  What drove them to succeed was not the desire to be rich, but a passion for the thing they did well that allowed them to succeed.

They would love to give their children what they had: a life of struggles and achievement, a sense of accomplishment, the feeling of exhaustion and exhilaration that comes with hard work, but all they have to give is money, and therein lies the rub.

In recent years this realization has developed into an interesting trend to include, as part of the estate planning process, strategies to offset the ill effects of inherited wealth.

These strategies include bringing the children into the family business and placing responsibilities on them only as they demonstrate the ability and commitment to the business.  It’s not a perfect system, because, let’s face it, when the kid knows you are going to die and they are going to inherit the business whether they try hard or not, there is a certain lack of reality to this game.  And it is also true that not every child of an achiever has the same capacity as their successful parent.

Another trend is the family foundation approach, whereby resources are dedicated to a charity run by the family members.  Grant requests are issued, and children of the wealthy participate in the selection of deserving charities and in awarding grant funds.  The idea is that this also helps teach the next generation about the value and importance of money.  One must wonder though, does it really just feed arrogance and an unjustified sense of self-importance?

There is even a new profession of family wealth counselors who help facilitate the transfer of wealth from one generation to the next, by organizing family wealth meetings and facilitating communication among the family members about this topic and its impact on them.

All of this seems hokey – and it probably is.  What it demonstrates is how important this issue is for those who have created wealth.  They are typically bright and practical people.  They can see that the children of other wealthy people they get to know often turn out to be lazy, arrogant asses.

For planners, it is a difficult issue.  Answers aren’t easy, if they exist at all.

Anatomy of a Senior Seminar Scam

When you reach a certain age you begin receiving invitations to “educational seminars.”  Often bright colored postcards in the mail, sometimes formalistic letters, even advertisements in the local paper. Usually they offer a “free meal.” In almost every instance these “educational seminars” are in fact high-pressure scams, designed to sell products that pay high commissions to the sellers, and provide little or no benefit (often a detriment) to the buyer.

The pattern is always the same:

  • You are told that there is a complication in the law, often arising as a result of a recent change in the law.
  • As a result, your assets being exposed to dire risks.
  • You are told that your current advisors are either too stupid to understand the issue or they are part of a conspiracy to keep you in the dark (for their own benefit).
  • The presenter then “educates” you about the risk and offers you the “opportunity” to purchase a product that will protect you.

The Bogey Man

There is always something that you need to be afraid of.  Among the most favored are:

  • The so-called “Death tax” is going to subject your life savings to excessive taxation after your die.
  • Income Taxes. They will tell you “The IRS could be the beneficiary of your IRA.”
  • The laws of intestate succession.  You will be told that if you don’t buy their product “the state will make your will for you.”
  • Nursing home costs and Veterans benefits. You will be told that if you don’t take some protective action, all of your resources could be consumed by care costs.
  • Probate. You will be told that if your assets end up in probate court they will be exposed to exorbitant court costs and legal fees.

All of this “information” will be presented so that true facts are distorted by accompanying falsehoods and incomplete information so as to be way more dramatic than is actually the case.

The Place

These events typically take place at restaurants, hence the label “chicken dinner seminars.”

But don’t be thrown off if the event is hosted at the local senior center or public library.  Many of these facilities have no policy regarding the organizations that request to use their buildings.  Scam artists recognize that these locations may add credibility.

The Set Up

In explaining the “risk,” the presenter will toss out legal terms and offer to define some of them, in order to create the perception that s/he is sophisticated on the topic.

The presenter will insinuate that your attorney or other advisors are unsophisticated or part of a conspiracy to take advantage of you.

Pressure Points

Once the presentation is over, you will be asked if you want to buy in.  If you resist, they will make you feel both ungrateful (for having accepted the free meal) and stupid (for not being able to appreciate the benefits).

The pressure will be intense and directed individually at you.  If you will not sign up immediately, they will ask for personal information so that they can follow up with you in your home.  If you give them personal information, they will use it.  They will come to your door relentlessly.

Target Audience

Only people of certain advanced age are invited.  Some invitations go so far as to say can’t bring your kids or advisors with you.

Once you’re in the room they will begin a process of identifying their targets.  Among the most vulnerable are:

  • Prideful people who don’t want to seem stupid or ungrateful.
  • People overly deferential to persons of authority, especially to males in professional attire.
  • Those with some level of cognitive impairment.

The Products

This whole industry began with the selling of co-called “living trusts” and this continues to be a very popular item.

Annuities are almost always woven in, being the fastest way to a quick commission for someone who is not licensed to sell other financial products.

Irrevocable trusts are offered now as a cure to all sorts of concerns.

Reverse mortgages.

Advice and Conclusion

If you are invited to one of these programs, don’t go. If you go, don’t buy and don’t give out any personal information.  If you think it sounds good, just remember, if in fact what they are selling is the best thing since sliced bread, it will be still be the best thing two weeks from now when you’ve had a chance to bounce it off people you trust.

Estate planning an elder law is complicated. You should get advice and do planning. Mistakes can be costly, but there are no silver bullets, and anyone who says they can sell you one should not be trusted.

Finally, not all educational seminars you may be invited to are bad.  Professionals that you have a history of working with may invite existing clients to programs about the law or investments.  Be wary of presentations put on by people with whom you have had no prior contact, and who use the scare tactics identified above to make the sale.

Family Dysfunction Part IV: Second Marriages

I advise clients who are in second (third, etc.) marriages, that their children do not like their second spouse.  And I’m not joking. I tell clients that although they may be the exception to the rule, my experience tells me: offspring don’t like the man or woman who replaced their parent in the hearts and home of their other parent.  No matter how they act while you are alive, the knives will come out when you’re gone.  It’s just the way that plays out. Deal with it.

An article I wrote on this topic was recently published in the Michigan Funeral Director’s Journal.  Click here to read that article: My Kids, Your Kids, His Kids, Her Kids: Why Second Marriages Make Estate Planning a Challenge.

In setting up estate plans for people who have children that are not the children of the spouse they have at the time of our meeting, I like to be frank about the potential for litigation after they die, and I like to avoid creating documents that invite that litigation.  In fact, if this series on family dysfunction were done in order of issues most likely to give rise to litigation, second marriages with children from prior relationships would be my number one indicator.

The most common (thought certainly not the only) source of litigation in these situations arises as a result of the tool many planners (including myself at times) use to accomplish the primary objective of the spouse who is doing the planning.  That objective is: I want my estate to provide for my spouse if s/he survives me, but when s/he passes, I want the rest to go to my kids.  This objective is, as they say, easier said than done.

The detail in which this devil sits is the standard placed on the access of the surviving spouse to those assets that continue in trust after death for the benefit of the surviving spouse, and the selection of someone to enforce that standard.  If you say that I want the assets to continue in trust so as to allow the surviving spouse to enjoy the standard of living we enjoyed while I was alive (or any other “ascertainable standard”), after you’re gone, someone has to decide as to particular requests for distributions, whether that request is compliant with the standard.  If that decider (the trustee) is one or more of your kids, you’ve created a serious conflict of interest. A professional trustee works well here, if you go down this path.

You also have to consider such things as:

  • What if my surviving spouse remarries or cohabitates?
  • If I leave a house, can the surviving spouse sell it and move somewhere else?
  • Does the trustee get to consider the other resources that may be available to that surviving spouse, and does that mean s/he has to report her assets and income to the Trustee?

An alternate approach can be to dedicate specific assets to go to the kids at the death of the first spouse to die, and to leave the remaining assets to the surviving spouse without restriction.  Insurance can sometimes work well here.

Another popular source of litigation is if assets were transferred from the parent-spouse to the surviving spouse during the life of first spouse to die, especially when that parent-spouse suffered from cognitive impairment during the period when assets were transferred.

When estate plans change to favor the surviving spouse later in the game, and/or during a period when the parent-spouse was suffering from some level of cognitive impairment, look out.

Another bad sign, but oh so common, is when the second spouse actively engages in the alienation of the parent from the children.

These issues make planning for second marriages challenging, and cookie-cutter approaches often lead to frustration and litigation after death.

Family Dysfunction Part III: Control Freak Fiduciary

Much litigation is created or avoided in the planning process when the people planning for their estate decide who to put in charge.

Words a planner doesn’t want to hear: I appointed my oldest son as trustee/executor.

Two immediate reactions: (1) men are more likely to be control freaks than women, and (2) the oldest child is more likely to be a control freak than any other sibling.  At least that’s my experience (youngest child being second most likely, and middle children being the least).

Of course many oldest male children are solid people and will do the job just fine.  The point is that when we think about who we want to put in charge, it is always best to avoid people with control issues.

The job of trustee/executor is difficult, demanding, and unglamorous.  A true labor of love.  When the person in charge finds pleasure in the process because they get to have control over the other beneficiaries, things usually go badly.

It’s not even necessary that the trustee/executor be doing anything wrong.  The simple refusal to share information can ignite emotional fires, especially when there is a history of overly assertive conduct between the parties/siblings.  When information isn’t shared, when buttons are pushed, when the “mom put me in charge, and now you have to listen to me” card is played, litigation can blossom even if the trustee/executor is paying the bills and moving with some reasonable speed toward settlement.

And let’s not forget the in-laws.  It doesn’t have to be the sibling who causes the problems.  Not uncommon is the spouse of the appointed sibling who asserts control.  Your son (or daughter) is an easy going guy (or gal)- too easy going in fact – his/her spouse walks all over him/her.  You know (or should know) when s/he becomes trustee/executor that in-law will be calling the shots (and pushing the buttons).

My banker friends would want me to note that one way to avoid all of this is to appoint a professional trustee/executor to handle the job, and take this whole control dynamic out of the mix – and that’s certainly a good option to consider.

Family Dysfunction Part II: Fall of the High Achiever

In the middle of a particularly difficult guardianship matter, a seasoned probate judge once said to me “that will be me and you Doug, when we get there.”

The subject of the proceeding was a retired college professor/author, had remarried and fired every doctor who told him he was impaired.

The Judge’s point was that a disproportionate number of really difficult probate matters involve people who had positions of authority during their work lives, but who became demented.  I have seen this to be true far too many times.  Give me a retired Judge, doctor, lawyer, college professor, or businessperson with dementia, and you have the key ingredients for a very difficult case.  Add a new love interest that facilitates the denial, and things get really dicey.

This is because these people: (1) have been “in control” all their lives and rage against the idea that they are losing control, and that someone else will have control over them, (2) they have big ego’s and think they know more than anyone else, and (3) that piece of them that made them high achievers/go-getters included a type A personality which meant they were overly critical of the people around them (their family members) and therefore created dysfunctional relationships with the people now involved in trying to assist them with their impairments.

A corollary to this is the “whoever tries to help me is my enemy” syndrome.  This is where the “good child” who decides that they have to do something to help mom or dad (typically dad) with their impairments is seen as the enemy by the impaired adult.  The impaired adult looks at anyone aligned with this good child as part of the conspiracy, and conversely, anyone who stands with them against the good child, as a friend.  This commonly results in the impaired adult creating new estate planning documents elevating the positions and interests of those who help them deny their impairment, to the detriment of the child or children who are trying to do the right thing.  An invitation to exploitation for sure.

Family Dysfunction Part I: Sibling Rivalry

In probate litigation cases, attorneys frequently observe that “this family is really screwed up,” or, more professionally: “this family is completely dysfunctional.”

That’s a conclusion.  I think we can do better than that.  It seems to me there are patterns, or common qualities, to many of these cases.  Some of these patterns arise frequently, others only periodically.  So, in a series, which begins with this post (and for which there is no planned schedule or timetable), I will offer my thoughts on the patterns of family dysfunction that I see arise in probate litigation matters. [I acknowledge that my opinions are based on no expertise in psychology or any other related science, only the experiences of my own life and legal practice.]

I start with the ever popular “sibling rivalry.”

People spend much of their lives seeking validation.  Not necessarily love – just validation:  “you’re ok.”

If you stand in any bar, cocktail party, or community gathering, much of what you hear can be boiled down to a simple conversation that goes on endlessly but in many varied forms:

Person Number 1: I think you’re ok.  Do you think I’m ok?

Person Number 2: Yes, I think you’re ok.

Throughout life we look for that validation from people around us – in childhood that validation is most important from our closest family members – including siblings.

As I see it, sibling rivalries that lead to litigation can result from two variations of the sibling rivalry theme.

  • Unresolved Childhood Sibling Rivalries

During childhood, validation from siblings is not always forthcoming.  Children struggle with their own identities and self-esteem issues, which at times makes it hard for them to validate their siblings.  Eldest children often have a particularly difficult time validating their younger siblings.   In our adult lives we have the opportunity to fix the existing validation issues with our siblings that were created during childhood.  So, if one child felt un-validated by a sibling, in their adult relationship the sibling who was perceived to have failed to adequately validate can fix the relationship with mature actions of validation.  “You matter to me, and I want to stay connected to you in our adult lives.”  When this doesn’t happen, issues arise that may play themselves out later in family fights over parental control and estate settlement.

  • Adult Distancing Sibling Rivalries

In addition, after siblings launch and go their separate ways, with some “succeeding” more than others, new inter-sibling validation needs evolve and there is the potential that our adult relationships with our siblings give rise to new validation issues (or exacerbate existing ones).  This is especially common between siblings who have reached differing levels of accomplishment in their adult lives.  In the adult world, some of us rise and some of us fall on that illusory scale of social importance.  Some people go to college, some do not.  Some go to better colleges.  Some achieve more success in their respective professions.  Some earn more money.  Children who rise higher than one or more of their siblings, will often create a need in the less successful siblings to demonstrate that notwithstanding their social status, they still think of their siblings as important people to them.  When this doesn’t happen, the sibling rivalry issues may also arise.

I should note that validation is different from love.  Love is more demanding and complicated.  It is nice if your siblings really love you, want to spend holidays with you, call you regularly; but in my experience siblings don’t need to love each other to avoid family dysfunction, so long as there is validation.

 

Becoming a Burden

This past weekend, my sister and I were pondering the rationale behind the common desire of many elders in America today that they “not become a burden” on their children.

One question is: How did we get to this point?  It seems obvious that for the vast majority of human history, and presumably in most cultures around the world today, multi-generational living situations have been and are the norm.  The nuclear family concept is unique to western civilization in the 20th century.

Certainly pride is a big factor.  Today’s elders don’t want their children to see them as weak or vulnerable.  And more than that, I think, they don’t want to become subservient to their children.  This is a proud bunch that fought and won great wars, lifted themselves up economically, and bore their burdens in quiet.  It is important to these elders that their children see them as independent and strong.  They don’t want to have their children help them toilet.

It is curious, although largely unrelated, that such a high percentage of soldier’s coming back from the recent military campaigns seek treatment for post-traumatic stress syndrome, while so few of the veterans of Vietnam, Korea or WWII disclosed any form of emotional impact.  They were impacted no doubt, and saw at least as much gore, but they handled it differently. It is the nature of this generation, I think, that they kept it to themselves.

It is also probably relevant that while the current generation of elders took in their parents when they became older, becoming older back then meant turning 60.  Their parents didn’t live to be 80, 90, or 100.  And more importantly, their parents didn’t live long enough to become demented, to be alive but childlike, needing assistance with the activities of daily living.  That’s a whole different deal, and we are the first generation to have to address this challenge.  It is one thing to have grandma sitting at the dinner table every night.  It is quite another to have to feed and bathe her.

Another question is: Will we, the baby boomers, feel the same way? Will we want our children to care for us?  Will the nuclear family prove to be a short-lived experiment?

Part of the answer to this question is economic.  As speculated in other blogs herein, and barring a breakthrough in treatment of dementia, it seems predictable that our government will not be providing the same level of services to the next generation of elders that has been provided to this generation.  That means the difference between being cared for by your children and living on what the government will provide, or what you can privately afford, may be much starker.

We may be motivated to impose on our children out of necessity if nothing else.  In addition, we may have a different sense of pride, and a different take on what our children owe us. In light of what parents go through raising children, doesn’t it seem altogether appropriate and just that the children share some of the challenges that come with the aging process?

The Troubling Tale of Catherine Jones

The story of Catherine Jones is unique and it isn’t.  It is typical in many of its facts: an older person with a strong sense of independence, fighting to retain the right to decide how she wants to live out her final days.  But unique with respect to the clarity with which her story captures some of the most difficult issues that courts and families struggle with in this time of aging and cognitive impairment.  (The story is true, but the names have been changed.)

Like so much of what goes on in this arena, there is no moral to this story.  No right or wrong.  No winner or loser.  Just a result, and a question: Is this the best result?

I was originally contacted by an adult protective services worker, Bridgett.  Adult protective services (or “APS” as it is called) investigates and at times intervenes in matters involving the protection of vulnerable adults.

Bridgett became familiar with Ms. Jones shortly after Ms. Jones was transferred from a psychiatric ward in Grand Rapids to a nursing home in mid-MIchigan.  Bridgett’s investigation revealed that Ms. Jones was a widowed farmer with no children.  She was in her mid-eighties and lived alone, although she had a relatively strong social network of neighboring farmers.

She was a hoarder and the conditions in which she lived, though abhorrent and possibly dangerous in the eyes of most people, were not unusual from the perspective of Bridgett.  The truth is that many elderly people with mental illnesses are hoarders, and have a very different sense of hygiene than the younger generation would find acceptable. Hoarding, aside from providing entertainment value to viewers of some reality television programs, is not an uncommon behavior among aged, especially those who live alone, and even more so among those with cognitive impairments.

The situation giving rise to this case began when Ms. Jones was involuntarily committed to a psychiatric ward as a result of a high level of anxiety that she was experiencing, and based on the finding that, as a result of her living conditions, she presented a danger to herself.

That event, which I was not involved with, was a mental health commitment. To involuntarily commit someone to treatment, it must be established that they are a threat to themselves or others.  Apparently, on the day of that hearing, a judge so found. But mental health commitments are intended to be short term arrangements.  Providing professionals the opportunity to address the risk and release the individual to an appropriate alternative setting where they can thrive – or as they say “the least restrictive setting” that is appropriate in light of their needs and condition.

Our legal system has long since dropped the idea of institutionalizing the mentally ill.  Many mentally ill people who have periodic psychotic episodes are walking the streets among us, posing no particular risk while they are complying with treatment orders whether that be medication or counseling or both.

Ms. Jones was released from the psychiatric facility to a nursing home, and it was while she was in the nursing home that a guardian was appointed for her.  That person was Mr. Ford, an area farmer who had only known Ms. Jones for the past few years.

A guardianship is a very different concept from a mental health commitment.  Now we’re talking about taking away a persons rights to make their own decisions forever – or until a court decides the need for protection no longer exists.  The standard for imposing a guardianship is that the person is unable to make or communicate informed decisions.

When the nursing home no longer felt that Ms. Jones was suitable to remain with them, the guardian arranged for Ms. Jones to be transferred to an assisted living facility, notwithstanding the fact that Ms. Jones did not want to go to an assisted living facility, but instead wanted to return to her home.  In any event, Ms. Jones was living in the assisted living facility when I met with Bridgett and at the time of trial.

In our first meeting, Bridgett expressed her opinion that Ms. Jones clearly did not need or deserve a guardian.  Bridgett believed Ms. Jones was being kept in an assisted living facility against her will, and it was her right to return to her farm and live there with her animals in the manner she so chose.  She was open to the idea that Ms. Jones may need some help with financial decisions.

Bridgett also presented me with a report from a psychologist that concluded that not only could Ms. Jones make her own informed decisions, but that her intellect tested well above average in most areas for persons of her age.  Bridgett was my client, so if I accepted the case I would be advocating for her position.  I accepted.  How could I not?

Ms. Jones’s resources were somewhat vast: hundreds of acres on several parcels in two counties, a small herd of cattle, and a variety of old tractors.  But she was running out of cash.  A situation exacerbated by the monthly cost of being in an assisted living facility.

At trial there were several witnesses.  Mr. Ford explained that, if allowed to continue to act, Ms. Jones would remain in the assisted living facility until arrangements could be made for her to return home, if and when he determined it would be safe to do so.  In the meantime, some of the cows and tractors would have to be sold to pay bills.

Two neighbors, David Smith and Brandon Johnson, both farmers, testified that they had known Ms. Jones for more than thirty years, and that they lived close by.  They testified that she was certainly different.  She did not think of her cows as farmers do, to be raised and sold for profit.  She named each of them.  To her they were like children.  With a little help cutting hay and moving bales, which they had traditionally provided, she could manage the herd, and the cows were well-cared for.  They said Ms. Jones should be allowed to return home and that returning to her home is in her best interests and would make her happy.

And Ms. Jones took the stand. Her testimony clearly demonstrated her understanding of her finances, her resources, and her current situation.  She stated that she did not believe her current level of understanding and capacity was necessarily a function of the medications she was now being directed to take, and did not know if she would continue to take those medications if the guardianship was terminated.  Particularly telling was her ability to correct Mr. Ford regarding the condition of her tractors, each of which she could identify by make and model.  She knew how long they had been sitting and what it might take to get them working again.

The issues before the court were whether some of her land, cows and tractors should be sold to pay her expenses.  Her preference, as advocated by my client, Bridgett, would be to terminate the guardianship, allow her to return home (and thereby reduce the immediate financial strain), and to sell what parcels of land she chose, if necessary, but preserve her cattle and tractors, because to her, the cattle and tractors were not assets to be sold to pay bills, but pets, friends, and the things that gave meaning and quality to her life.

The psychologist’s report had been filed with the court and was therefore part of the record the Court could consider in making its findings and decision.

At the end of the day the Judge terminated the guardianship, but not without expressing his outrage at the proceeding and the result.  He recognized, that under Michigan law, we do not institutionalize the mentally ill.  Although he predicted, and may well prove correct, that in a short period of time Ms. Jones will go off her medications and decompensate, stop cleaning herself and live in squalor.  But he said, if, as was the case with Ms. Jones, at that moment in time when her capacity was being determined, the question is whether she can make and communicate informed decisions, it was clear that she could.

Mr. Smith agreed to take her to the assisted living facility, pick up her things, and drive her home.

We are an aging population.  People live longer now than in any time in history and often with age comes cognitive impairment.  The law was created to deal with issues of another age, and struggles to address the rights of the aged and impaired as it exists today.  Adult children of older adults struggle with the same issues as they try to do “the right thing” for the parents they want to protect.  It’s a challenge that is only going to get worse as the baby boomer generation enters the population of the very old.

And for now, Ms. Jones is home with her cows.