The Guardianship Court Hearing In Chapter 4 of S-Town
You may remember that soon after John B. McLemore died in the S-Town podcast, his estranged cousins came out of no where and were able to clean out his house, even though his mother was still living there and alive! They were able to do this through a legal proceeding called a Guardianship and Conservatorship hearing. This is a court process that allows you to appoint an individual (the guardian or conservator) to manage the healthcare and financial decisions of an incapacitated person.
In S-Town, the judge found that mom was incapacitated, therefore handing over all her civil rights to the cousins … legally. This is a very dangerous proceeding, for many very obvious reasons. The most important of which being that mom has no more right to make her own decisions regarding herself or her money.
Was That Even Legal??
Unfortunately, yes. However, Tyler and possibly the producers of the show, could have taken steps to make sure that John’s estate was protected and that mom had a different guardian. There is no guarantee that any steps anyone would have taken would have worked. They are in “S-Town” after all. We don’t know exactly how things went behind the court room doors, but it seemed like the judge wasn’t too fond of Tyler and his tattoos, so putting Tyler in charge probably wouldn’t have been an option.
What could have been an option is a third-party professional. This professional would have been able to:
- Decide what actually happened and who was in the right
- Decide who John’s things should go to (assuming they were also appointed as Personal Representative)
- Figure out what should happen regarding Mom’s care
- Figure out what should happen with Mom’s assets
- Refuse pursuing charges against Tyler
All of this could have easily been prevented if John and his mother had estate plans in place. You can read other posts in our S-Town series for more information on how estate plans could have helped in S-Town.
Are There Protections Against This In Colorado?
There are. As mentioned above, you can plan ahead with a full estate plan. You can also take action afterward, but that is much harder. The truth of the matter is that taking action after a guardian has already been appointed requires that a third party speak up in order for those protections to be enforced. Tyler, the producers, someone, would have to bring a legal action against the cousins for a breach of fiduciary duties. Or, as discussed above, these people could have tried to challenge the action in the first place and suggest a better person to fill the spot of guardian/conservator.
As I have mentioned in other posts, if you don’t have an estate plan in place, the state will make one for you. This means if you do not have a medical or financial power of attorney, a judge you do not know will appoint a professional you have never met to manage your affairs for the rest of your life if you become incapacitated (called a guardian and conservator). There is no guarantee this person will be your spouse, your next of kin, or even a family member. As we see from S-Town, without a proper plan, you don’t get to say who should not be in this position.
The bottom line is that being prepared is the best defense. Almost everyone I talk to thinks things like this only happen in the news, on T.V., or to other people. The sad truth is that this situation is the common one that most people end up living through. Because people don’t want to think about their own incapacity such as getting Alzheimer’s disease, being in a car accident and suffering brain damage, winding up in a coma or otherwise losing the ability to make decisions, they just avoid it in hopes that it will clear itself up. Or people utter the all-too-common phrase “who cares, I’ll be dead.”
Your family cares. The people you leave behind care. Get prepared for them. Your clock is ticking.