In each instance where we write about the domestic problems of the rich and famous we try to note that their resources make their lives and their choices inherently different. Last year we covered the Costner divorce and the fight over whether reasonable needs of children included a beachfront house in Malibu.
Friday’s news about comedian Jay Leno is a case where fame and fortune offer no difference between their lives and ours. Mr. Leno filed a petition in California to become conservator of his wife, Mavis. She is 77 and theirs is a 43 year marriage. The allegation in the petition is that she is afflicted with dementia which signals that she needs a guardian to manage her affairs. From what we can read, Mavis Leno was a force for change in her own right as reflected in her Wikipedia biography.
This has become a more common feature of the legal landscape. Smart, vibrant people are outliving their wits and family members must intervene to protect and care for them. In most states, these proceedings are brought in what is called probate court. Pennsylvania is even more twisted. We address these issues in Orphans’ Court.
The Pennsylvania statute is found at 20 Pa.C.S. 5512.1. In olden days, we called the matter one of incompetency and you were either “competent” or not. If you didn’t ring the bell a guardian was appointed either to manage your person or your estate (i.e., your assets). The modern version of the statute recognizes that the line between capacity and incapacity is not a bright one and that the remedies of guardianship may need to be tailored to the needs of the adult whose mental faculties are in decline.
The statute attempts to do the right thing but the problem itself is an amorphous one. There may be days when your parent, spouse, or child seem “100%” in control. They are often followed by days when your loved one rails about being visited by aliens or that you have stolen their money. When this happens, you are required to seek a court order appointing you or someone else to make decisions about personal care and financial management. It will be among the saddest days of your life and it may be among the most painful.
Thirty years ago, I tried one of these cases. I was retained by two daughters of an 80something retired physician. Part of medical school training is exuding the impression of always being in control of any situation. My one client had taken her father in and put an addition on her home for him to enjoy his sunset years. One day her brother showed up and, in her view, kidnapped her father. The brother drove dad to an attorney who modified his will and then took his dad to his house professing that he no longer wanted to live with my client. What made my life easy was that my client’s sister, who lived in far away Texas, called to say she wanted to also hire me. The sisters claimed their brother had done this because he needed their father’s money. So, I had two daughters saying their father had lost his mind and been kidnapped while his only son professed that he was sound as could be and just decided abruptly to live elsewhere (with his son).
The case went to trial with Dr. 80+ denying he had any mental infirmity. He just wanted to live with his son and have no further contact with his two daughters. This seemed odd, especially given that his residence and estate plans all changed on the same day. But when I started to question Dr. 80+ about his “choice” to have no further contact with two of his three kids, the results were strange. He took the stand impeccably dressed and unfailingly polite. His answers to my questions about how he decided on a single day to change his plans were so pat as to be disarming. He seemed very much “in control” but his answers were completely superficial. He could not explain why he decided to act so quickly or what his daughters did to dismay him.
I had the doctor’s phone records. I marked them as an exhibit and he confirmed the records as his phone calls. The records showed that on a single morning, he dialed my client’s phone more than 40 times. Twenty of those calls were placed in a single hour; one every three minutes. He confirmed that he had made the calls. When I asked why, he looked at me and said: “I needed to speak with her.” I asked if he recalled the subject that merited 40 calls in a single day. “I don’t know.” He didn’t try to deny the phone record showing 40 unanswered calls in a single day.
This is the world all of us may face either as the intended recipient of the phone calls or the person who can’t recall why he pushed 400 buttons on a telephone in a single morning trying to speak with his 50something child. Again, on the day he testified, which was approximately 4-5 months after his telethon, he seemed very much in control. But the judge hearing the case understood that normal humans don’t press 400 buttons in one day just to say “Hello” to an adult child.
Proceedings like this don’t often go to trial. In most cases, the alleged incapacitated person never appears in a courtroom. Typically, a physician or psychologist evaluates the person and provides a report. But we live in an age when some family members see “economic opportunity” in becoming guardians or fear that other family members will act badly if they are put in charge. We also live in an age when siblings of an aged parent are spread across America or the world and harbor fears about a guardianship in a setting where they have no ability to provide needed care or fiscal management or to see what is occurring day to day. As if the angst of dealing with a mentally failing family member is not enough, you may find that your spouse or siblings don’t agree that any form of guardianship is needed. This may produce the kind of trial I just described. For much of that hearing, the aged physician seemed to politely navigate his way through direct and cross examination with responses that suggested he was in control.
In 2022 I was asked by a former client to try a case where her sister alleged that she needed a guardian. When I read the petition, the facts were alarming to say the least and they appeared to be validated by medical records of recent hospitalizations. But the client sitting in front of me was fully engaged and outraged that the petition had been brought. An independent psychological assessment confirmed that guardianship was not necessary but added that my client’s recent conduct was concerning. As we noted, Pennsylvania has adopted a statute that allows the courts to tailor guardianships to the circumstances required. The problem is that on one day your parent or sibling is fully engaged in the game of life while the next day, you catch them giving an unknown caller their birth date and social security number or leaving the gas burner “on” overnight.
If you see this kind of aberrant behavior in a family member, the first task is to circle the wagons of friends and family to assure yourself that they share your concern. Don’t be surprised to learn not all agree. And, don’t be surprised to have your infirm family member confront you: “What do you mean, I’m not managing?” Then, it’s time to consult a psychologist or a lawyer to assess next steps. It’s unpleasant work which must be done.
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