I Care a Lot
It’s often said that life imitates art. So how accurate is Netflix’s 2020 dark comedy, I Care a Lot? The movie follows legal guardian, Marla Grayson (played by Rosamund Pike), who builds a lucrative career persuading the court system to place wealthy elderly people in her care, whether they are truly incapacitated or not. Through her extensive legal knowledge and medical connections, Marla can entirely control the lives of her wards. She often sells their assets and prohibits them from having any contact with their family members or friends. She requests that doctors discontinue their prescribed medication and instead, increase dosages of unnecessary medication. For her newest client, Ms. Peterson, Marla even goes as far as putting her on a schedule that allows for minimal sleep and almost no physical activity. Yes, we agree with you – Marla is unhinged.
While this film is intended for entertainment purposes, its reference to a stranger gaining full control and authority over someone’s finances and personal affairs to benefit themselves is part of our reality. The question that remains: is this something that could happen to you or your loved one?Guardianship by Definition
The situations presented in I Care a Lot are very unlikely. However, the film does provide exaggerated examples of what could potentially occur in guardianship when a guardian and abuses their authority.
A guardianship is a legal process used when a person is unable to make sound decisions concerning his or her person and/or property. In states other than Florida, this can also be known as a conservatorship. A guardian is either an individual appointed by a court or a person previously nominated in estate planning documents by the incapacitated person. The document that names a guardian is referred to as a Designation of Preneed Guardian. When there is no named guardian, the court can appoint a family member or other legal guardian to step in and begin making personal and/or financial decisions on the incapacitated person’s behalf. Because establishing a guardianship may deprive an individual of such significant rights, it should only be explored after other options have proven unsuccessful.Fact vs. Fiction
Fiction: In I Care a Lot, we see Marla become appointed as Ms. Peterson’s guardian without Ms. Peterson’s knowledge.
Unlike the film, in Florida, a person must first be served with a notice of guardianship before a guardian is appointed.
Fact: Marla is Ms. Peterson’s guardian despite not having any blood-relation to her.
While it may seem strange, this is a possibility in guardianships when there are no other options. A court will give preference to spouses and other family members, while also considering the expressed wishes of the incapacitated person.
Fiction: Quickly after being appointed guardian, Marla removes Ms. Peterson from her residence and into a nursing home.
Under Florida law, for a guardian to change a ward’s residence, both prior court approval and immediate court notification are required. In this case, Marla would have had to be authorized by law to relocate Ms. Peterson.
Fact: Selling Ms. Peterson’s assets, such as her cars, home, and furniture, means Marla had full control of Ms. Peterson’s financial decisions and assets.
Under Florida Law, a guardian can, in fact, be given complete authority over the properties and finances of their ward in order to pay for the ward’s needs and to pay themselves for the services rendered.
Fiction: Soon after Ms. Peterson is moved into a nursing home, Marla begins to work diligently to sell her ward’s previous home.
In Florida, to sell a person’s residence, a guardian must petition the court for approval to do so. The guardian must also serve the ward and all interested persons with notice and copies of the petition(s), as provided in the Florida Probate Rules, unless waived by the court. In the movie, Marla did none of the above.
Fact: Marla’s multitude of connections allow her to get away with her exploitive behavior, but there are still times that relatives, friends, and interested parties bring their concerns to the attention of the court.
When an attorney shows up in court on behalf of Ms. Peterson, for example, he is ignored because Ms. Peterson had not formally retained him as her attorney. In an actual court, any interested party can report inappropriate conduct on behalf of the ward. These types of complaints will - most often - be taken very seriously. The guardian can then be held personally accountable and liable if they are engaging in decisions that are not in the best interests of the ward (cough, cough, Marla).
Fiction: Throughout the movie, Marla consistently denies her wards access to communication with family members or friends.
Florida Law allows any person determined incapacitated the right to receive visitors and communicate with others. Taking away phones and blocking visitation from family members or attorneys violates the ward’s substantive rights. A person who is determined incapacitated still has rights to counsel and access to the courts.Why You Should Care, a Lot
A guardianship can be avoided if a power of attorney is duly executed. If Ms. Peterson had completed a durable power of attorney, for example, then the person she appointed would have handled her affairs instead of Marla.
If someone incapacitated does not have a durable power of attorney in place, then a guardianship becomes the next option. When a guardian is appointed by the court, the court will then oversee the ward’s assets until the individual’s capacity is restored or the individual passes away. Another option is to put in place a health care surrogate to make medical decisions on incapacitated person’s behalf, which is analogous to an medical power of attorney. Further, with a revocable living trust in place, a trustee can manage your assets in the trust in your best interest if you are no longer able to do so on your own behalf.
You might agree with us when we say that Marla is the exact opposite of who you would want making decisions for you or your family member. For that reason, it is vitally important to ensure you have taken the necessary steps in your estate plan to avoid what could potentially end up being another scheme by Marla!