The gentleman had not been heard from or seen in three weeks. Despite repeated calls from his Guardian, state officials refused to visit his home in the cold desolate hills in mid-winter. His abusive language and belligerent attitude, threats and condescension were prohibiting factors. No one wanted to go where they were not welcome so it became quite easy to hide behind his “right to refuse services” and to justify disengagement.
Finally, at her wits-end, Chloe, the Guardian of this, Mr. Jakes, made an impassioned plea to the local police department. When they arrived at his home, Mr. Jakes was found unresponsive and comatose on the floor, soiled in his own excrement in advanced renal failure. He had not eaten nor had any hydration in at least a week.
Chloe placed him in a residential setting and began to put drastic restrictions on visitors and activities in which he was allowed to partake.
Chloe authorized the Jakes children to enter their father’s home in order to remove certain belongings that they identified as “Family Heirlooms”. She reasoned that it would be less of a burden on herself and his estate when it came time to itemize, inventory and store the belongings that had accumulated for over fifty years.
One afternoon, an older woman arrived at the skilled nursing facility to visit Mr. Jakes and, without word to staff, put the old man in her car and drove him across state lines to her home where, she believed, she would care for him “properly.” This long, forgotten mistress of the Elder Jakes was appalled at the condition she found him, disgusted by the care he was (or was not) receiving in the skilled nursing facility and was horrified by the humility and lack of dignity he was being afforded by his family, providers and caregivers.
Once safely out of state, this caring woman endeavored to initiate probate proceedings of her own, indicating that there was no court involvement in another jurisdiction and that there were no interested parties available to contest the matter, to which Mr. Jakes was in full agreement.
A cold blast came in that evening followed by a blinding snow storm and plummeting temperatures. It was two days before the roads were clear and businesses resumed normal activity.
As luck would have it, Chloe was escorting her friend with a plow truck to Mr. Jakes isolated home in the country when a car slowly drove by. In a lucky glimpse from the corner of her eye, Chloe saw, in the front seat, a very alert and nervous Mr. Jakes!
Upon entering Mr Jakes abandoned home, Chloe discovered that a pipe in the kitchen had burst showering floor to ceiling in water, then freezing the entire room in a thick coat of blue ice. Every toilet and radiator in the home had frozen and cracked in the subzero temperatures of the previous days arctic chill.
When the local police apprehended the car driven by the elderly woman, MR Jakes refused to leave with them. He also did not advise Officer Griffith that he was a person under Guardianship. Seeing nothing wrong with the matter, Officer Griffith left the elderly couple after determining that there was no reason to hold them.
Chloe rushed to the police station to talk with the officer on duty directly. She was persuasive enough in her narrative and had credentials and paperwork sufficient to convince the officers that they should disclose to her the name and address of the woman who accompanied Mr. Jakes that afternoon.
When she arrived at the out of state home of the elderly woman, she found the couple peacefully enjoying soup at the kitchen table. She pleaded with Mr. Jakes that it was a matter of law that he accompany her back to the Skilled Nursing Facility where, she assured him, she would do all she could to work through his concerns and rectify any wrongs he perceived in his treatment. Eventually he joined her for the long, uncomfortable ride back to the Skilled Nursing Facility.
A lawsuit was brought by the Jakes Children in the Federal Court based upon, among other issues, a Habeas Corpus claim. Chloe was the first named defendant in the case seeking over $2 million in actual and punitive damages.
Among other claims, the suit alleged Gross Negligence and Breach of Fiduciary Duty – Failure to ascertain the wishes of the Person Under Guardianship, Failure to secure and maintain adequate housing, Failure to preserve assets, Failure to remove obstacles to independence, Failure to assist the Person under Guardianship in achieving Self-reliance, Kidnapping, and failure to employ standards of “best interest” and least restrictive means of intervention.
The matter was settled out of court for an undisclosed amount . But, Chloe was forced to re-finance her home in order to pay nearly $80,000 in fees and costs not covered by her insurance who claimed to be indemnified due to “gross negligence” claims.
There is no way to prepare for the set of circumstance described herein. There are, however best practices and protocols that every Guardian/fiduciary should adhere to in administering their affirmative duties. Proactive planning and responsible action will go far to reduce or minimize the exposure to risk of liability for acts of omission or commission on the part of the unsuspecting Guardian/Fiduciary.
This series will discuss, among other topics, the professional guardian and their vital role in an aging society that is ill-prepared to address the needs of its most vulnerable citizens. The hope of this series is to offer you tools to maximize your impact on those you care for and minimize your exposure to risk while acting as a Professional Fiduciary/Guardian.
How you engage in proactive planning as opposed to reacting to an acute moment of crisis may be the best protection for you from the threat of legal liability.