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Guardianship: Safety Net or Pitfall?

The legal world for most Americans is a murky one: an unknown cosmos of rules and regulations, which they hope never crosses over into their own. Unfortunately, the United States of America’s legal system doesn’t always work that way.Sometimes there are important legal steps that people should take to protect themselves from the unknowns of our litigious society.

Emily Gurnon, for a website called Next Avenue featured in Forbes, opens our eyes to a common danger involving guardianships. Guardianships allow a person or entity usually appointed by the court once a person has been deemed incapacitated or mentally unfit to make their own decisions. Gurnon details an infuriating story about 50-year-old Ginger Franklin from Nashville, Tennessee. In the account Ms. Franklin fell and hit her head. Having no immediate next of kin, a court appointed her a legal guardian. After making a miraculous recovery, Ms. Franklin, returned home only to find her court-appointed guardian had sold her house and all her possessions. She was then was forced to work for two years without pay as she battled in court to right the wrongs that had been done to her.

Eventually a competent legal team untangled Ms. Franklin from her unpaid work and is representing her as she sues her former guardian. Unfortunately, despite the happy ending, Ginger Franklin’s life was completely destroyed, “It’s quite an understatement to say I was devastated,” she told Next Avenue. “I don’t trust people anymore. I lost everything — because I fell down the stairs.”

It may be easy to write off Ms. Franklin’s account as a rare occurrence that could never happen to you. However, you should know that there is an entire organization NASGA, the National Association to Stop Guardian Abuse, created to help stop such abuses. Still dubious?In the same article, Gurnon references a 2010 U.S Accountability Office report which states, “The U.S. Government Accountability Office (GAO) found hundreds of allegations of physical abuse, neglect and financial exploitation by guardians in 45 states and the District of Columbia between 1990 and 2010. Guardians also stole $5.4 million in assets from their wards in that period,” the GAO said.

Check back with GAO today and what you’ll find is a PR statement detailing the difficulties of gathering data on the potential abuses of guardians and ultimately concluding that the extent of the abuse is unknown. It would be naïve to think that such abuses have stopped or even slowed. With the baby boomer generation reaching their golden years, it’s far more likely that a number of such abuses will rise.

Also, cases involving mental competency and family inheritance may not be clear cut cases of abuse like Ms. Franklin. Consider what happened to billionaire owner of the New Orleans Saints, Tom Benson. In the midst of a family dispute over who would gain control of the team upon his death, Mr. Benson was required to undergo a psychiatric evaluation as part of a federal lawsuit filed by his daughter. Had Mr. Benson been declared mentally unfit to make decisions, he could have lost control of his assets, which he had worked to build over fifty years.

Whether you are an 87-year-old billionaire owner of an NFL team or a spry 50-year-old from Nashville, it’s important to take steps to ensure your legal safety and what you intend to pass to your heirs. Leaving your affairs unsettled could lead to disastrous consequences or unnecessary family strife. The legal team of Tobin, O’Conner & Ewing will help metropolitan residents of Washington DC choose the proper legal course that best fits their situation.

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