Every day in America the epidemic of dementia brings ordinary middle class families suddenly into contact with courts and lawyers.  In New Mexico, these guardianship and conservatorship matters go to the same district courts that decide criminal matters and manage complex civil litigation and the proceedings are subject to the same rules of evidence used in trials.  So thousands of dollars, perhaps tens of thousands of dollars, can be spent before the bewildered elder is fitted with a guardian and, perhaps, a conservator. 

My friends who are doctors say they routinely refer their incapacitated patients to lawyers for court proceedings.  I get those calls.  Like most calls from people who need lawyers, the callers (an adult child, the spouse, or a sibling of the dementia patient) ask the typical threshold question: “How much will a guardianship cost?”  I used to respond with the range of the total fees I had billed for cases in the past.  Because I, like other lawyers, charge by the hour, the fees reflected how many hours I had spent.  But the amount of time and effort required for guardianship cases is skyrocketing.

Today, I am not so quick to announce any estimated range of how much a guardianship will cost . . .  and I never assume that the person calling to inquire has correctly self-diagnosed the problem.

The price range of the adjudications of incapacity that I have been involved in is $500.00 to $55,000.00. Probably the only reason my experience includes proceedings whose total cost is under $5K is because I have been doing guardianships for over 25 years—years ago things were simpler.  Since my first guardianship in 1985, courts and lawmakers have become more and more focused on the rights of people who no longer can make decisions for themselves.  These due process concerns have expanded and refined the fact-finding process.

 Of course, due process is a good thing.  But in the American system of justice, fact-finding is also an expensive process – and one that customers of the legal system often think is unnecessary.  “Why does it take a team of experts to prove what seems to be quite obvious?”   “Why does my poor old Mom have to pay so dearly for this humiliation?” Middle class consumers come to the court thinking that they are doing the right thing to be able to care properly for a vulnerable elder.  These same consumers often leave feeling exploited and confused, disappointed with American culture and the American system of justice. 

 Sometimes, the court-run process rips a family open at the seams, as siblings battle over what is best for their elderly parent or whether the parent has been financially exploited by a relative.  As with “friendly” divorces, issues that at first appeared to be nuanced with shades of gray end up in sharp  black and white contrast with rules being applied that no one even knew about before the process started.

In America, judges do not have investigative staffs.  In some other legal systems, courts work on an inquisitorial model, where public employees are charged with the duty of fact-finding.  Americans easily grasp the shortcomings of such “inquisitions.”   But we are also impatient with inefficiencies when procedural safeguards are imposed.  In guardianships, the courts try to achieve a balance between efficiency and the rights of an impaired person by appointing for every person whose capacity is being adjudicated an attorney, a social worker and a qualified medical professional.  The cost of all of these personnel is paid from the assets of the person whose capacity is under scrutiny.

Considering the growing number of demented elderly, there must be a better way to provide them with legal protection . . . and there is.  But it cannot be put off until the need is at hand.  Each of us may, in our saner moments, put into a formal writing what we want to happen and who we want to help us in the event of incapacity.  For many of us whose families are scattered and whose resources won’t stretch for years, this planning process is not obvious.  Professionals like me can help with this.

Our government, and the courts that are part of the government, has not been geared toward actually taking care of the weak, the vulnerable, the sick or disabled.  Even the safeguards that are already in place are being endangered by the clamor for low taxes and less bureaucracy.  The “American way” has  been to create private charities and volunteer organizations.  Right now, however, the need for much greater effort on behalf of our elders threatens to overwhelm these loosely-formed nonprofits, churches and synagogues.

Some answers seem to lie in a new entrepreneurship for senior services.  Courts are connecting with private guardianship agencies, trust companies, and home health agencies to provide help to the people who come before them who need protection.  But courts are not legislatures.  They cannot invent answers, organize resources, or take over the life planning for those who have not anticipated these situations.  What courts can do is no more than what they can empower a family to do.  Hopefully wisdom and forethought is growing among our aging population and their families as we strive to avoid the costly experience of guardianship.