March 12, 2021
By Richard I. Miller
This year’s Golden Globe nominees included four films that directly relate to the issues handled by our elder law and special needs attorneys. In the coming weeks we will discuss each film, and analyze whether the facts, storylines and legal issues they present are realistic, or pure fiction.
- I Care a Lot is a film about a professional court-appointed guardian, who is actually a scam artist that takes control over the assets of elderly individuals by having them declared incompetent.
- The Father, starring Anthony Hopkins, tells the story of an aging man who refuses assistance from his daughter. As he tries to make sense of his changing circumstances, he begins to doubt his loved ones, his own mind and the fabric of his reality.
- Music, a film directed by the singer-songwriter Sia, is about a woman who becomes the guardian of her half-sister, named Music, who is on the autism spectrum.
- I Know this Much is True, starring Mark Ruffalo, is about identical twins, one of whom suffers from paranoid schizophrenia. Besides dealing with the day-to-day issues of caring for a loved one, the miniseries addresses one brother’s effort to free the other from an inadequate and depressing psychiatric hospital.
We’ll begin with I Care a Lot, the movie that elicited a strong reaction in our office. Unfortunately, I turned the film off after 20 minutes because it was more fantastical than Disney’s WandaVision, which deals with all powerful witches, mind control powers, and reincarnated synthezoid robots. Simply put, I Care A Lot depicts a guardianship system that could never happen in real life. This is concerning because viewers unfamiliar with the legal system could fear this might happen to them.
As the film opens, Marla the professional guardian is seen making deals with doctors, attorneys, and assisted living administrators to identify seniors with assets and no family. Marla gets a doctor to write a report about a senior named Jennifer, stating she is a vulnerable adult in need of a guardian. Somehow this report is presented to a Judge who immediately appoints Marla as Jennifer’s guardian, without notice to or participation from Jennifer. Marla then shows up to Jennifer’s house (where she is functioning perfectly well) with the police and takes Jennifer to an assisted living facility, where the administrator takes away Jennifer’s cell phone so she can’t communicate with anyone.
At this point my wife asked if something like this could really happen. After responding with a resounding “no,” we turned off the movie. I walked away concerned about the film’s portrayal of events and the misinformation it spreads. For this reason, it’s important to explain how guardianships actually work.
- An application for guardianship must be accompanied by certifications from two doctors who have examined the alleged incapacitated person (AIP) within 30 days of filing a guardianship complaint. The certifications offer a medical opinion as to whether the AIP is able to manage his or her affairs, and the extent to which the AIP is able to exercise decision making in certain areas. If an AIP refuses to submit to a doctor’s exam, court approval can be requested to compel the capacity examination.
- In every guardianship proceeding, the court appoints an independent attorney to represent the AIP. The court appointed attorney is required to interview the AIP, proposed guardian, family members, medical providers and other individuals who have relevant knowledge. If the AIP objects to the guardianship, the court appointed attorney is expected to advocate for the AIP. The court appointed attorney is also required to submit a report to the Court in advance of the hearing, so the Judge is fully aware of the circumstances and recommendations.
- An emergency guardianship can be ordered by a court, but even in those instances an attorney is appointed for the AIP, who is provided with notice of the action and the ability to oppose it. Proof of potential risk or harm to the AIP must be established for a guardianship to proceed on an emergency basis.
- The AIP is expected to participate in the guardianship hearing before the judge. The appearance of the AIP may be waived by his or her attorney, but this typically happens in cases where the AIP is unable to comprehend the proceeding due to severe cognitive deficits.
- If the court determines a guardianship is appropriate, the court will limit the guardianship as much as possible to preserve the rights and independence of the incapacitated person. For example, an incapacitated can retain the right to vote, marry, manage money and make certain decisions for him or herself if authorized by the court.
- Guardians are subject to ongoing court oversight and required to file annual reports and accountings. Guardians are also required to post a bond to protect the incapacitated person’s assets, unless specifically waived by the court.
In short, the guardianship system is structured to prevent exactly what was depicted in the movie!
I appreciate that fictional films and TV shows require suspension of disbelief. I know Hugh Grant’s trial in The Undoing does not accurately follow the Rules of Evidence. I know high-level chess matches don’t usually take three minutes like in The Queens Gambit, and I know there is no way the Rose family in Schitt’s Creek could live in adjacent hotel rooms for six years without killing each other. And yes, I know Rudy Giuliani was only pretending to hit on Borat’s daughter in the hotel room. (OK, maybe the last one is a bad example).
That said, I Care A Lot’s depiction of guardianships crossed an Elder Law line that warranted a swift response. Consider justice served!