Dementia: Update for the Practitioner

A doctor sees an individual with legal-medical issues years before anyone in the legal community ever does. A physician therefore has an opportunity to help keep patients away from the courthouse through a variety of simple, inexpensive, and direct legal techniques.

My favorite saying is that the very worst attorney of all time was Perry Mason. Perry Mason solved every single case successfully for his defendant clients, but there was one flaw in his procedure: every one of his clients ended up in court, and he solved every case in the last five minutes.

The very best lawyer is not someone in the headlines; it is not someone who dramatically calls a mystery witness in the last five minutes. It is someone who approaches legal problems early on and avoids the need for litigation and entry into the courthouse.

Let us assume for the moment that I am at a hospital, in a coma from an automobile accident and unable to communicate in any way. Further assume that everything that I own—my home, my retirement accounts, my bank accounts, my investments—is held in my name alone. (In my scenario, I am going to recover miraculously in six weeks with no residual effects.) My financial universe just came to a screeching halt. Nothing in my financial world will move forward because I hold everything in my name alone.

You must be thinking, "Dan is not taking into account the fact that his spouse or a close family member can go to a financial institution, explain that Dan was in an accident, and work everything out." Test that hypothesis. If you have a retirement account, send a spouse, a significant other, or a family member to your financial institution with a sob story about why he or she needs access to your retirement account. It will not work. Any financial institution will respond that the account is in Dan's name alone, and when Dan opened the account he made a contract with that institution agreeing that he would be the only person allowed access to that account.

There is a legal solution to this problem, but it is a Perry Mason solution. Someone will have to go to court and bring an Article 81 Mental Hygiene Law Guardianship proceeding. A guardian will be appointed, and when that individual has a signed order from a judge, he or she can go to any financial institution, show the signed order, and have access to my accounts. There are two problems with this answer: time and money. It will take a minimum of six months for that order to be signed, and in a fast-moving financial world, in which the value of a stock changes from day to day, six months can be forever. For instance, if I am heavily invested in an Enron-like stock, the six months before a guardian can be assigned can make a disastrous difference in the value of that account.

I assume that if this were my situation, my wife would go to my partners in the law firm and ask for a reduction in fees. However, an ordinary individual without bargain rates for legal fees should expect that an uncomplicated, uncontested guardianship proceeding will cost a minimum of five to ten thousand dollars in legal fees. To rub salt into the wound, the ward is going to end up paying those fees. The court order naming the guardian also details instructions from the judge that the guardian gather all of my assets, put them into a new account in the name of the guardianship, and pay all of the parties who were involved in the guardianship out of those accounts.

The guardian could have avoided that five- to ten-thousand-dollar fee with an outlay of only 33 cents.

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