Beyond The Will

If you’re a probate attorney (or someone with a Netflix account), I expect you’ve seen or heard about the somewhat disturbing film “I Care a Lot.” The movie, which debuted on Netflix in February 2021, is a dark comedy illustrating a legal guardian’s ability to target and drain the assets of susceptible elderly individuals. The crooked guardian Marla, played by Rosamund Pike, pursues and obtains guardianship over the wealthy and seemingly vulnerable Jennifer, played by Dianne Wiest. The story includes thrilling twists of violence, crime and laughable moments. However, the movie also depicts various legal procedures surrounding guardianships in a dim and somewhat untruthful light. If your elderly clients or family members are now asking you, “Could it happen to me?,” I recommend dispelling some of the movie’s inaccuracies.

Early in the movie, Marla meets with Dr. Amos (played by Alicia Witt) to discuss Jennifer’s “need” for a guardian. Without diving into the clear HIPAA violations and obvious ethical concerns, what is also missing from the conversation is Dr. Amos’s obligation to provide a medical certificate to the court. A medical certificate is a required document that must accompany a petition for guardianship. The medical certificate is a form completed by a registered physician following an evaluation of the proposed “Respondent,” or in this case, Jennifer. The medical certificate illustrates why an adult is in need of a guardianship, either due to mental illness or incapacity. The examination of the Respondent must take place within 30 days of the filing of the petition for guardianship. The form is signed under the penalties of perjury. If Dr. Amos hadn’t been (spoiler alert) killed, Jennifer’s attorney could have pursued perjury charges.

One startling scene in the movie was when Marla showed up on Jennifer’s front porch, presented her with the court’s order, and whisked Jennifer away to assisted living. Jennifer claimed that she had no idea what the court’s order was regarding and asked why she wasn’t invited to court. Marla explained that, because the guardianship was deemed an emergency, Jennifer was not invited to the hearing. Though it is true that a guardianship can be pursued on an emergency basis, there are various hurdles for attorneys to overcome before they are heard in court on an emergency guardianship. To obtain guardianship on an emergency basis, as Marla did, a Verified Motion for Appointment of Temporary Guardian for an Incapacitated Person must be provided to the court. Within the Motion, the moving party (Marla) must illustrate what emergency exists requiring the appointment of a Temporary Guardian. The moving party must prove to the court that any delay in the appointment will cause immediate and substantial harm to the health, safety or welfare of the Respondent, and no other person has authority to act, as required under M.G.L. ch. 190B, § 5-308. The statute also requires that written notice be given, in hand, to the person alleged to be incapacitated seven days prior to any hearing for the appointment of a temporary guardian. Though the notice requirement may be shortened or even waived by the court, a predatory guardian such as Marla will need to prove an immediate emergency. Clearly, Jennifer, who was attending her water aerobics classes and enjoying her well-kept home, was in no danger.

It was quite jarring to watch Marla rummage through Jennifer’s belongings, paint the walls of the home, and prepare the property for sale. The scene begged the question: Can a guardian do this? Under Massachusetts law, a guardian of an incapacitated person shall make decisions regarding the incapacitated person’s support, care, education, health and welfare. However, some powers such as making gifts, committing the Respondent to an institutional setting, authorizing treatment with anti-psychotic medications or any other extraordinary medical treatment, and selling real estate owned by the Respondent requires specific court authorization by petition. Marla did not have the general authority to transfer or sell Jennifer’s real estate simply because she was guardian. Marla must obtain specific court approval, namely, a “License to Sell.” Pursuant to M.G.L. ch. 202, § 1, Marla must provide to the court reasons for selling Jennifer’s property, such as for investment purposes, medical expenses and maintenance, and MassHealth planning. Upon the filing of the Petition of a License to Sell, a citation will be issued and notice to Jennifer will be provided. In these situations, a judge typically appoints a guardian ad litem to represent Jennifer’s interests and accept notice on her behalf. A guardian ad litem would investigate the circumstances surrounding the sale of the property and determine whether the sale is in Jennifer’s best interests. A guardian ad litem’s involvement in a case is another layer of protection for Respondents such as Jennifer. Marla would have a difficult time proving the financial need to sell the real estate, especially considering the handful of diamonds she found in Jennifer’s safe deposit box.