Consternation. March 2019.
By Timothy S. Barkley, Sr.

“Well, thank you for your time, your Honor.”  The hearing on emergency guardianship had concluded in manner not entirely satisfactory to Susan and her brothers.

“All rise!” directed the bailiff, as the judge departed the courtroom.  Mary smirked at her siblings and left, wheeling her mother out.  Susan turned to the lawyer with a stunned expression: “What just happened?”

“Well,” began her attorney, “basically the judge didn’t seem to think that there was anything so wrong with what Mary was doing that he had to issue an emergency order without more evidence.

“Nobody expected Mom to be there, and I must say she sounded mentally ‘with it’ to me.  When she told the judge that she was happy with everything Mary was doing, that totally deflated our case.”

“But I know Mom isn’t mentally ‘with it,’ and she can’t keep spending money like Mary’s spending it for her!  What happens when she runs out?”

“Let’s take this one step at a time.  First, we need to get Mom to a doctor to see if she is able to make decisions for herself.  The Court can’t grant a guardianship unless Mom is certified to be incapable of making her own decisions by two doctors.  The judge did order her to be examined, which is a victory for us, since she had refused – or, really, Mary had refused for her.

“The judge also appointed an attorney for Mom, and that attorney should meet with Mom so she can make a recommendation to the Court.  She might also talk to you and your brothers and to Mary, so she can get a feel for the family dynamic.”

“When do we find out what Mary’s spent out of Mom’s money?”

“When guardianship is granted, if it is, then Mary will have to account for her use of Mom’s money,” replied the lawyer.  “Mom’s financial situation is private, and the law doesn’t make that public unless it’s justified and reasonably necessary.”

“What happens if the judge decides Mary’s spent Mom’s money on herself?”

“The judge can order her to pay it back if he decides that it was inappropriate.  In one case I had, the attorney referred one of the children to the State’s Attorney for prosecution for embezzlement.”

Susan looked thrilled.  “You mean Mary could go to jail?!?”

“Don’t get excited,” cautioned the lawyer.  “Sounds like you are just looking for a way to get at Mary.  This isn’t it.  Too often, people in these situations are still trying to work out childhood angst.  They just end up making themselves and everyone else bitter.

“And all this costs money.  The doctors should be covered by insurance, but Mom’s lawyer won’t be.  If Mary gets a lawyer, and you have a lawyer, that can mean that the only ‘winners’ are the lawyers. In one case I handled, the combined legal fees and court costs were over $80,000.”

“How’s that fair,” challenged Susan.  “Mary always got away with everything when we were little, and Mom always gave her whatever she wanted.  Mom was even supporting her until she got married.  It wasn’t until Mom had a big argument with Mary’s ex-husband that we could get Mom away from her.  And now the only way to stop her from taking over again is to spend boatloads of money on lawyers!”

The lawyer nodded.  “It seems unfair, but remember that the law hasn’t already decided that Mary’s a crook.  If she is a crook, or maybe just a greedy person, the Court can try to correct things, but the law isn’t a perfect system.  Bad people can always try to get away with bad things, and sometimes they do.  We don’t get perfect justice on this planet.

“I’ve handled cases like this before. This is going to be hard to hear, but don’t forget that Mary believes that she’s doing exactly the right thing.  She’s taking care of Mom at home, and that really is what Mom said she wanted at our first meeting.  Remember?”

“But not this way!” protested Susan.  “Mary just can’t get away with spending Mom’s money like this.”

“Is that what really bothers you?”

“Yeah.  Mom and Dad worked hard, and they always said it was so they could leave us something.  If Mary goes through all Mom’s money, then there won’t be anything to leave to the kids.”

“So you think the best way to spend Mom’s money is on assisted living, and Mary thinks it should be spent keeping Mom at home. Who’s right?  Who should be in control?”

To be continued.


Attorney Tim Barkley
The Tim Barkley Law Offices
One Park Avenue
P.O. Box 1136
Mount Airy
Maryland 21771

 (301) 829-3778

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