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>> Good evening.

I'm Sandy Thomson, the host of Life Ahead but this is your show.

I do want to make sure that you understand that I'm going to be asking our guests some questions tonight and our main topics are going to be guardianship.

>> But you see a phone number on the bottom of the screen and that's for you to call in and ask your questions.

>> That's what we want to try to do is give you information that you're curious about that you want to hear now I do have some very qualified guests this evening in this topic we have again guardianships as the main topic and if you look over here, we have Jessica Thoreson .

Nice to have you back, Jessica.

OK, good to be back.

You see her all the time here on LIFE Ahead.

So you probably recognize her out on the street as well.

Jessica is an elder law attorney so she is going to cover that legal base for us and ah once a year minimum guest is a magistrate about the standard.

>> I look forward to this all year long.

Oh, it's always great to see you Sandy .

>> You never age oh well I just I think the same thing and know we're we're both welcome to our mutual plan.

>> Exactly.

Jessica, we'll catch up with this in another decade or two .

>> I got a ways to go but Magistrate how was just telling me right before the show you're the longest serving I I think is that this isn't for certain but we believe that I'm the longest serving active judicial officer in the state of Indiana.

Thirty going on thirty eight years.

>> All right.

With the L.A. Superior Court for what that works what that is worth it's worth I guess it's worth a lot in that I've seen a lot there's no doubt there's no doubt about that.

>> Right exactly.

So about anything I ask you will have dealt with that at some point.

>> But it's also amazing how new things come up, you know, as a society change but not as often as they used to.

>> I do I've seen most everything but I always go wow, I've never heard that one before and the lawyers almost fall down when I tell like I've never heard of this one before.

They go you have kids, we're all in trouble so but yeah I've been around for a while.

>> Good, good.

And I I think we talked about because of his length of service in that capacity you started when you were 12 percent which you 12, 13 or thereabouts rounded up maybe a little bit and then add some but you I have no doubt in ten years we're going to be sitting right here.

>> Yes, I'm all for it.

I'm so yeah I just get it on the calendar.

No one will have caught up with you.

OK, Jessica yeah.

guardianships I'm going to be our main topic and we've spoken about that before on the show but we can take different directions if those of you at home have some questions you'd like to ask (969) 27 twenty guardianships definition and what's the difference between a guardianship and a power of attorney?

>> Sure.

So a power of attorney document is one where an individual is actually going to sign a document giving the authority to somebody else to make decisions for them if they were to become incapacitated.

OK, so there's lots of different types of powers of attorney.

There's most common people talk about as a durable power of attorney.

>> Yeah.

What's the word durable?

I mean it means it goes beyond your incapacity so it's a document that's effective as soon as you sign it and that it it goes beyond your incapacity you can use it oftentimes I see people will use it if they're at home and may be limited mobility and they don't they're fully capacitated mentally but they have limitations in their mobility and they want somebody else to take action on their behalf.

>> Does everybody name them durable power of attorney or pcould it just be power power of attorney?

>> I understand the difference.

Yeah, So there is a thing called a springing power of attorney which what a springing spring.

OK and so in order for that document to be effective you have to have usually a doctor's note sometimes it'll say to physicians sometimes they'll even say what type of physician that you need to have in order to make that doctor's document effective.

There are also powers of attorney that are limited.

So you could say this power of attorney is only you can only use this power of attorney for the period of time that I'm on vacation in Europe.

So it's available for a month or whatever the case may be or maybe it's limited to a particular transaction say a real estate transaction.

I am letting you take care of the sale of my home for me and once that's done your power is over.

So it really kind of depends what your goal is with that power of attorney to determine what type of one you use.

>> You know, I think one time we talked about in referencing powers of attorney I guess that would be the plural, wouldn't it?

Powers of attorney power of attorney powers I think sounds good.

>> OK, sounds good to me to answer that questin that a lot of times people just think of that as what elder people might do and they will they do their power of attorney living will whatever.

>> But I think it was you just like that said nowadays a lot of people do that if they're going to be on vacation and they have small children or they're going to Europe or someplace far away, I mean you never know.

>> So maybe they'll name a power of attorney just for that vacation time.

>> Yeah.

And as soon as you're eighteen I recommend that you get a power of attorney because you're a legal adult and so your kids your parents can't make decisions for you anymore.

So I'm at the age where I have kids who are graduating high school and so these this transition is something that's very much happening in my day to day life .

And so those are things that even as a graduation present I'm suggesting hey, here you go.

>> This is what I think you should get a free ride or something to do school graduation present day get a power of attorney powers of attorney also though I mean they can be super limited like like one and they could come up like sometimes when like when you're buying a car and there's documents you have to do and you don't say oh we need you to sign this power of attorney so that we can file the paperwork for you.

I've seen things like that.

I mean you can you can dial in a power of attorney to really accomplish to designate about any type of authority broad or narrow as you want it can be a very flexible document.

Why would you do that instead of a guardianship then it just to give you the power to handle financial situations?

>> Well, we'll talk about guardianship but you may just want to tell why when you counsel your clients that they eed a guardianship as opposed to yeah yeah.

So a power of attorney is you are signing that document and you are making the choice of who you're naming in that document.

And so for me it's it's a lot of about making sure that this individual has control about who is making those decisions for them.

They could name co attorney and fax they can name I want this person then a secondary person.

So it's really trying to figure out who they want in their life to to make these decisions.

There are times though the person doesn't have capacity anymore and so we have to go get a guardianship and who petitions the court for the guardianship may not be the person that that individual wanted to be making decisions for them.

>> Oh yeah.

I could see that scenario happening.

So then what happens?

Well that's where when you petition the court to be appointed somebody guardian everybody in the family for the most part is going to get notified lots of different situations about who gets notice and they come before you eventually they'll probably end up in fact undoubtedly if you're in L.A. County you're going to end up in my and then see the court grants the guardianship the person who they're called the attorney in fact they're the ones that grant the power of attorney themselves.

>> You don't have anything to do with the power?

No, not at all.

That's true that you could give to other OK, but the court has to prove the guardianship so your authority comes through the court if you're appointed as guardian.

The play one of the one of the problems sometimes with plays is that that can be revoked so I can grant a play but if I'm perhaps having difficulties with making decisions and things like that, I may be making decisions against my own interests and I may just revoke the play and the family may say oh you're you're squandering money doing things like that and making bad decisions.

We need to get into court to see if the court agrees that you need some authority that comes through the court that gives us authority to keep protect you from yourself.

>> So like if somebody has the power of attorney say and their siblings or somebody in their family petitions the court or comes to you and says I don't think they're doing I don't think they're being fair.

>> They're not making good decisions then do you have the right then to call that person in and say you're out, you're not going to do it anymore?

>> Well, you mean the POWA yeah.

Yeah absolutely.

In fact under Indiana law the somebody that holds a power of attorney and many times as a voluntarily resign but if they go they have to get notified and they they may defer to somebody else and say no I think this person and usually families do work together their families or friends or whoever business associates they do work together in the best interest of the person not always but in any event that in order to revoke a power of attorney I can be it can be done by agreement.

You can voluntarily resign as a play or the court has to give you notice and you can come in and argue that it shouldn't be terminated and we have to I have to make a determination what's in the best interests of that.

>> What do you look at what are you looking at when you make that decision?

Well, it's a lot of times it's the reason why they're in court on the guardianship.

A guardianshi petition is because there have been allegations that the play is not properly doing their job.

I see it not being attentive enough or maybe they're abusing that the authority that they have under that power of attorney and that's the kind of evidence that comes before the court at that point.

How long and maybe this is for you, Jessica, in settling in a state and saying somebody has a power of attorney what of the state for some reason to settle that has been dragging out for a couple of years.

>> It's still going to be the same power of attorney or can it change?

So a power of attorney is only as good for as long as that individual is alive.

So when it comes to a health care power of attorney, there are a few limited powers that extend beyond death and that usually has to do with maybe an autopsy or funeral arrangements and handling that those type of things.

>> And then the trustee takes over after the person passes.

>> It could be a trustee.

It could be a will which is then a personal representative.

OK, sometimes a lot of people will have transfer on death or payable on death or beneficiary designations and I never count one.

>> Yeah yeah yeah.

Know we're talking about a state of Missouri that's way different guardianship statement.

>> They do emerge a bit and they certainly do in my office because I'm handling state administrations and guardianship and trust matters in my office.

But yeah in any event they're they're related but they're not the same powers that you get under the power of attorney or different from somebody who was appointed by the court to to administer in a state which takes precedence if somebody has both a power of attorney and a guardianship which one takes precedence that that's a question that's probably a better question than you had any idea before you asked it because that's a great question.

>> It is a great it is an absolute great concept and it used to be under Indiana law.

>> I don't know whether this changed maybe ten years ago, something like that that occurred if the court appointed guardianship it just automatically eliminated any powers of attorneys that were out there.

I see.

But as as we discussed a couple of minutes ago I said no.

Now it doesn't work that way you have to notify the power of attorney the yeah.

And they have to been notified that the court's considering revoking your POA and so theoretically you could have a play and a guardianship that operates at the same time and I don't really know what happens then but it can be a mess.

>> It can be a mess because oftentimes what I actually will see is that a family will come to me with an appointment of a health care representative because that's the only thing mom or dad are comfortable doing.

I was comfortable allowing somebody to make medical decisions for them but I wanted them not involved in my finances.

Well now they're at the point where they're incapacitated and so I've got this appointment the health care representative.

So I have the authority to make medical decisions but not to deal with the finances.

What do you do so you can petition the court for a guardianship of just the estate?

You could let the appointment of a health care representative document stand in that person, make those medical decisions then either the same person or a different person in the family could petition the court to be appointed guardian of the estate so they would ask to be you wouldn't be like appointing or suggesting no because at that point that individual wouldn't have capacity to sign a new document and so we would have to go before the court to get the authority to to handle those transactions.

>> You're reacting to that?

Yeah, no, that's the bite.

The opposite can be true and I see the opposite true frequently where the person has a perfectly valid power of attorney to handle business affairs, financial affairs and things like that and they'll continue using that.

And I'll point that same person though to give them the powers to make health care decisions because they don't have that already.

So yeah.

And so they can play it can be the same person as The Guardian.

They just they operate they have one set of authority under the power of attorney that relates to one area either person or state as we that's how it's described in in the business so to speak or or and then they have one kind of authority that the court grants.

>> OK, thirty eight years you've been doing this almost oh OK.

So in that time you've experienced almost everything although I'm sure nothing's come up as far as the world changes.

But what are some of the I don't know that I want to use the word mistakes but situations that people have problems with well family should I say mistakes they make when money is involved.

>> Yeah.

And when siblings who have not always gotten along all their life or are involved that things that have nothing to do with the guardianship something that happened 30 years ago can cause conflict when it comes time to there may be general agreement that mom or dad and this is the most common situation.

It's a child whose petition to be guardian over their elderly parents let's or one of their elderly parents and yeah, those situations can go sideways pretty fast but the issues don't really necessarily have anything to do with the guardianship.

>> But people they just kind of want to fight and when money is involved and yeah yeah we've talked about that before you know it's can be said about probate even but most guardianships are good situations.

>> They lead down Goodrich's ALZ people need the help and we're talking we've referred mainly here to guardianships over Dolz.

>> Oh OK.

But we do I do guardianships over younger people too.

First there are guardianships children sometimes when their parents are incapacitated, unable to perform their function will appoint an uncle or grandma grandpa to to be guardians over minors.

But some of the most heartwarming stories that I caught are children who have aged out but they are developmentally disabled but they they are technically adults when they reach the age of 18 and then and then their parents no longer have the technical right to like medical information and things like that because they're an adult.

Well, the court has to make a determination that they are incapaciated under Indiana law and usually will appoint their parents.

They're the ones that petitioned to continue to serve as their guardians to keep doing what they've done their whole life and and those are just you have to 18 you have to do that and those are usually just one.

You know, I marvel at the compassion and care that these people have for their children and and I just love having them in the courtroom.

They're usually just those are happy situations.

Good.

I go on a tier two not to my eyes at time in my court reporter and those can be when situations let me ask this if you have granted a guardianship to parents of special needs or disabled child that's reached adulthood or eighteen is that for life or do they have to keep going back and get approved again?

>> It's goes until terminated by the court so it is indefinite.

Yeah, but it can be terminated if you in and it happens typically not with somebody who is developmentally disabled because it's it's it's highly likely that's going to be a lifelong condition.

But we have situations where individual have been in accidents.

>> Maybe they go and they're in a coma or something but they are recovering but they need a guardian before makes them before they recover and then we terminate those and have done that at the time when regain their competency.

>> OK, have you had ever had that situation or what's unusual for you as an attorney?

>> Terminating guardianship is an unusual thing for something beyond somebody passing away for the most part that is a unique situation occasionally to what we get I would say is another unique situation is where people are either moving into the state of Indiana or out of the state of Indiana.

That takes a little bit more coordination than I think most families recognize.

And so if you if you are appointed guardian of somebody and you were wanting to move them to another state, not only do you have to handle that here in the state of Indiana but then also in the state that you're moving to and most of that is usually prior to the actual move.

And so you really need to kind of know the rules of this state and then the state you're moving to.

So that takes a lot of coordination.

It's not a I'm just going to move into weeks or in a month.

And so I think that's kind of some of the more unusual situations we run into that needs a little bit more kind of planning.

>> Guard guardians are under the jurisdiction of the court and they remain so so always for Indiana statute says that you can't leave the jurisdiction basically without the court's authority.

Oh, I mean you could if you were on a trip and you're intending to return, that's that's there is common sense in the law.

>> But if you're planning on permanently moving, you have to get you have to there has to be a notification petition.

>> The court court has to approve it in all likelihood the court will approve it if it makes sense.

But sometimes there have been cases, sensational cases where people are trying to hide grandma or something and they want to know where they are when they're trying to move to another state.

>> And so it it just has to be transparent.

>> Do they have to go before the court then at their new location in all likelihood that will be required there because they're going to have to establish jurisdiction for their case in that other court there wouldn't be notifying the next court or the person not direct but my order will become part of I'm pretty sure of that proceeding that says you are authorized to move to the state of Kentucky or did you have to do this?

>> Yeah, and there are reciprocal compact between states that deal with such issues.

Yes.

So even though it's all state law and where it's not federal not state law but there are there are standard provisions that most states have in that area relating to the transfer guardianships.

>> OK, how long does it take Jessica, to set up a guardianship?

I'm sure that there are some of you out there now that are thinking, gee, this is something that I really need to do for my family or my children even if they're adult children, whatever.

>> How long does it take?

It is case specific.

It really is fact and case specific.

But I would say there are a couple kind of things that you have to make sure you have you need to make sure you have medical evidence of the incapacity and so that's working in theory with it with a physician's office and so sometimes those things can take a little longer.

Sometimes we have to get the court involved even to have an assessment of somebody and so proving the incapacity does require evidence of it and that can take some work to get that .

So that is very I see that very all over the place.

You do have to provide notice to certain parties in a guardianship and so you've got to make sure you that you've given them notice of the proceedings and they're right to maybe either be heard or object or to vanish.

>> Did they have to get permission I mean say I want to appoint somebody as a guardian for my children or whatever do I have to ask that person will you do this?

>> Well, in a perfect world in a perfect world, Richbourg, from my perspective as somebody who is helping somebody obtain a guardianship, it is much easier and smoother for everyone in the family if we're on the same page and we do have that consent.

That is not the perfect world though.

And so sometimes there is no consent.

Sometimes there is an actual objection and we just have to work through those things OK and and usually it's the court that may have to wind working through those things into perspective.

I like to see consent from all the interested parties show but sometimes people just flat out won't sign or they don't they won't sign them and they live their they're not attentive to their mail or something like that and they won't sign a consent.

They may not even be against it.

In fact in most cases they're against it but they just never sign and return the consent.

But that's OK in a way that's OK because what happens is they have to get notice of the hearing and if they don't show up that for the hearing to object that's considered to be a constructor of consent by the court.

>> All right.

So they were not here.

You aren't objecting, right?

OK, OK. >> All right.

Well as far as being before you or before the court, is there anything a person needs to bring to you paper wise or approval from the rest of the family?

>> What do you think we are talking you're talking about consent documents.

Yeah, those are done by mail.

But but the lawyer's office will take care of that sort of thing.

Absolutely.

And try and obtain in every situations a little bit different.

They may say oh, if it's your next door neighbor, if your brother happens to live in the same neighborhood, you'll get this consent signed by him.

So but it's a document that they'll create and have them signed so OK. >> All right.

Now here's a question.

I know that during covid you did a lot of your work in guardianships online.

>> We did zoom, zoom, zoom here.

Do you still do it some some of this done by mail now or what?

I've done everything I can to get my court back to normal.

I think it was a pre remarkable thing that we did.

I never missed a day of work during covid never never got behind it and hearings in my area it's a little easier than some of the areas other areas of the court to do jury trials or turnage jury trials, right?

>> Yeah, but it's a better hearing.

It's a more I think it's important that people be in the courthouse so I've done everything I can to get people back in the courthouse but we are still authorized under circumstances to take to do things by Zoome needed by phone but crazy as it is is Steve called in by the way and Steve has this comment and question he said I am guardian for my disabled son.

What would happen if I pass?

I have another son.

>> Does he need to do anything to get guardianship transfer if I pass how about that?

>> There's a couple to take that we could write a book on this because there are various strategies Steve might want to employ.

>> What would be the first thing you do Steve?

The first thing I would tell you is to plan early and to plan start planning.

Now a lot of times what we'll do is during your lifetime will appoint a guardian so that it is a seamless transition that way the court knows that you your son is familiar with your other son and that they are familiar with the care and that really this is going to be a smooth transition should something happen to you whether it's in any capacity or a passing because we really want to make this easy for the person who is incapacitated and has the guardianship over them.

>> OK, we have about twenty seconds.

Oh little bit of information or advice.

Would you give people an guardianships?

Well, guardianships can be emotional situations.

In fact they almost always are but it's nothing to be scared of and we it's a it's a long it's a it's a area of the law that's well developed.

It's been around forever.

There's a good process in place.

If you get good legal advice you'll get through this process, get through it eventually you'll get through it.& >> And again, I appreciate all the information and education that the two of you shared with us tonight.

And for the rest of you, I'll see you right here next Wednesday night at seven thirty.

Stay safe and stay healthy