Guardianship over a relative is much more difficult to obtain after a loved one has already become legally incompetent due to physical or mental illness. Lengthy, costly and heartbreaking court proceedings can be avoided with advance directives.
Even movie stars known for playing attorneys can find their families in such an unnecessary dilemma.
'Elle Woods' Representing
In May, Legally Blonde actress Reese Witherspoon found herself in a real-life court in her home state of Tennessee, alongside her mother, Betty, as they petitioned for joint conservatorship over Reese's father, John Witherspoon. Reese's parents are separated, but not divorced.
According to court documents, a restraining order was obtained against Tricianne Taylor, a woman who entered into a bigamous marriage with Reese's father, allegedly in order to borrow hundreds of thousands of dollars while using John's last name. The restraining order prevents Taylor from using the Witherspoon name or presenting herself as John's wife.
Betty Witherspoon told the court that her husband has no memory of marrying Taylor and that he suffers from possible dementia along with several other medical conditions. She and Reese asked the court for conservatorship in order to become decision-makers for him due to his health. The case is ongoing.
Pick a Guardian, Put it in Writing
According to the 2012 Alzheimer’s disease facts and figures report published by the Alzheimer's Association, "Among people with dementia who live alone, as many as one-third to one-half do not have an identifiable caregiver."
That's 2.7 million people who have no legal provisions for their care!
The Alzheimer's Association recommends that advance directives be put in place to allow family members to make decisions about an individual's care while they are still able to make their wishes known, and the earlier, the better. These documents should include a durable power of attorney, a health care power of attorney and a living will.
Illness or injury can happen at any age, but these documents — prepared by an experienced estate planning attorney — can help ensure that your wishes are followed and give family members peace of mind.
If these documents had been in place for John Witherspoon, the stress and legal wrangling his family is now going through to protect his assets and his name likely could have been avoided. If you or a family member doesn’t have these important documents in place, I urge you to contact an estate planning attorney as soon as possible to get them done.
Steven Greenwood, Esq. is an estate planning attorney in Westlake Village.
