Practical Ethics in Elder Law (HYPOTHETICAL #6)

GUARDIANSHIP AS PROTECTION FROM FIDUCIARY

Charlie: Daughter and mom come in and tell me that son, using power of attorney, is stealing from mom. We did new POA, so son files for guardianship and the results were the public guardian as conservator and no one going after son. Should we have instead filed suit against son for violating fiduciary duty as POA?


Paul: If your goal was to go after son, which it appears it was, then yes, I would think violation of his fiduciary duties would be the route to take. Changing POAs will ‘stop the bleeding’, but would hardly bring any recourse against son, nor could we recover assets lost while son was acting under the POA façade. The guardianship is, in my mind, very similar to the POA, only sanctioned and enforced by the court. It’s to protect the ward going forward, not reprimand someone going from past.