After a successful morning in court, I decided to talk a bit about guardianship and conservatorships. I go a bit more in-depth below the video.

We do a lot of good in my practice. A big part of my success centers on my belief that whatever we do, we do it for the right reasons. If I agree to represent you in a divorce it won’t be because you paid me but because I believe that I can help you not just in the courtroom but also help you improve your life and your kids lives. Similarly, in a custody case, I will only represent a parent if I believe I can help that child have a better life, which means that is what my client must want too. We don’t do revenge and we don’t do petty at the Pavlov Law Firm.

However, some of the things we do are specifically designed to help those in need the best interest standard for custody of children shares this mandate, though people’s motivations vary). Guardianships and conservatorships are an example of an area of law that is designed solely to help those in need. Without diving too deeply into the specifics of the law, suffice it to say that the court’s sole focus in any guardianship or conservatorship matter is the protection of a vulnerable person, whether that person be a now grown-up disabled child or an elderly parent dealing with dementia or other health issues.

Here is a common fact pattern to illustrate how this works: A client comes to see me because their elderly father is suffering from dementia and needs help paying bills and arranging medical treatment. The client’s initial thought is to have a Power of Attorney drawn up, but, obviously, the father’s capacity would render the Power of Attorney suspect at a minimum. Further, the power of attorney does not help set the parameters of the client’s acceptable powers (POA’s are broad, which is part of the danger) and it can be revoked. Further, if the client has brothers or sisters, particularly if they lean a bit self-involved, self-righteous, and/or selfish, operating under a POA could lead to very complicated allegations. I also find that ethics can become quite complicated for a person with a POA over their elderly parents. All the work that goes in to helping someone with such needs can be overwhelming and a generous gesture from the parent can quickly be interpreted as overreach or taking advantage by the adult child.

The guardianship and conservatorship solves these issues. The court’s oversight and the process for establishing the guardianship and conservatorship forces transparency. Ultimately, there will be no question over the correctness of the guardianship or conservatorship as the burden of proof is quite high, if easily satisfied based on obvious infirmities. Moreover, the conservator is a fiduciary and therefore holds major responsibilities to the Ward and must act in their best interest, something that is a lot easier to do when you have a black robe reviewing everything. The funds will be properly placed into a conservatorship account and the conservator will have to do an accounting each year. Anyone approved by the court will be able to review the accounting and, of course, the judge will review it. Further, the court will also set budgets when appropriate and approve major expenditures and sales of assets, while providing the conservator enough flexibility to hopefully handle the ward’s affairs without much judicial oversight.. So if the house is sold, well, the court will have had to approve it, but the day to day things will not until the accounting. Any question or concern from any interested party can be brought to the court and transparency is essential so no one should fear these questions. And since this is all pretty much set in stone, most folks have very little interaction with the court after the conservatorship and guardianship is established other than the accountings because the court is not there to make these things harder. The court is there to help the Ward. If there are problems, bring it out in open court and let the black robe make the hard calls.

This does not mean that Guardianship and Conservatorships are easy things. It is a major burden to act as someone’s Guardian and Conservator. It is a selfless thing to do and most people do not get paid for doing it, though there are provisions for pay in some situations and for reimbursement of expenditures made on the Ward’s behalf, including, potentially, the establishment of the guardianship and conservatorship. Further, the court’s feelings about what is best for the Ward may differ from the client’s, but that possibility is inherent in any matter in the chancery court that focuses on best interest. Still, if you are working truly for the best interest of the Ward, the court and the client will ultimately end up on the same page (with good lawyering).

This is unfair.

I only want what is fair.

The judge is being unfair to me.

I hear these sorts of statements and my eyes automatically begin to roll. Notions of fairness are wildly subjective, jejune, and inevitably small-minded and self-centered. What you think is fair for you inevitably seems unfair to the other person. What is just, on the other hand, requires looking outward for an honest rendering of the facts and reflecting inward to balance multiple interests to determine what resolution is correct and reasonable. In the legal world and in the moral world, we deal with justice, not fairness. Justice is for grown-ups; fairness is for children.

Regardless of my distaste for complaints about fairness, people tend to find the concept of fairness much easier to grasp than justice. Often my job centers on teaching parents about justice by recontextualizing the question of fairness to its proper nexus - the kids. After all, the polestar consideration of the chancery court is the best interest of children, and no parent can say with a straight-face that they do not want the best for their kids.

So the question becomes: What would be fair for the children? The answer, unfortunately, must be that nothing about this custody issue is fair for the children. They did not ask to be in a custody dispute, they did nothing to contribute to it, but they must suffer the consequences of their parents’ actions. Recognition of this truth helps provide the correct perspective for assessing a custody case. Once a parent agrees that the entire situation is fundamentally unfair for the children, then we can begin to work our way towards a just result.

First, should the children even see the other parent? Sometimes the answer is no. If the parent acts violently, abuses drugs and alcohol, and/or refuses to take any steps to remedy their destructive behavior, the child may legitimately be better off not seeing that parent. The just result requires removing the toxic parents permanently from the child’s life so that the child may live with the stability he or she needs to be safe and to recover from the trauma of having his or her parent(s) choose vice over their children.

Often the parent demanding fairness for themselves perpetrates the violence and/or abuses drug or alcohol. Unsurprisingly, these people often blame the unfair world for their self-inflicted problems. However, denial about their own role in the destruction of their lives does not always blind them to objective truth. Then the question becomes whether it is fair for your child to experience life with an addict or to witness violence, regardless of the perpetrator. Of course, the answer must be no. If it is anything else, then the court already has its answer. But if a parent agrees that the child should live his or her life without exposure to violence or addiction, then the parent must take steps to demonstrate a commitment to a violence and/or addiction free life. N.A., A.A., Rehab, DVIP courses, anger management, regular drug tests, counseling, therapy, etc. These are the tools through which a parent can prove his or her dedication to a better life. If a parent refuses, again the court has its answer. If the parent complies (and also behaves correctly) then the court also has an answer.

Parents will often blame the other for such behavior or endeavor into whataboutism to call into question the fairness of the inquiry or the requirements placed upon them i.e. she’s the real addict, she’s the real abuser, she’s the one who got arrested, I don’t have a problem but for her. Again I role my eyes at the immaturity. It does not matter what the other parent did because it does not change what needs to be done. If one parent takes the steps to assure the court that he or she has remedied their ways and the other parent has only whined and complained about how unfair it is, then the court has its answer. It is fairer for the child to have one parent who has remedied his or her ways than two parents who refuse to address any issues.

Questions of violence and addiction exist in only a percentage of custody disputes. Parental disputes exist in all. What is fair for the child is for the parents to put aside their personal grievances and work as a team to provide the child with the best life possible. What that means is consciously and consistently choosing to take the high road. The other parent gets under your skin? So what, act like an adult and toughen up. The other parent antagonizes you? So what, act like an adult and don’t take the bait. The other parent won’t share information? So what, act like an adult and get the information yourself. The other parent makes you angry? So what, act like an adult and hold your tongue. Do not give the other parent an excuse to act like a petulant child, behave yourself like a responsible, well-adjusted adult, and you will always end up looking like the responsible, well-adjusted parent. That is best for you, best for your kid and best for your court case. The result may not appear fair to the other parent, but, god-willing, you will see the justice in the court’s decision.