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.
Would a will have helped in S-Town? YES! A will definitely would have made things a lot better for the people John B. McLemore left behind.
Over the next few weeks, I’m going to be explaining the different legal aspects of what happened toward the end of S-Town, and how most of it could have been prevented. If you don’t want to know what happens, then don’t read these posts! This week, we are starting off with how a will could have helped John’s probate process in S-Town be less of an S-Show.
A Look At What Happened With No Will In The S-Town Podcast
With no will in place, the cousins were able to come in a take whatever they wanted. Technically, if you do not have an estate plan, the law will write one for you. And, as you heard, any discrepancies between parties is going to be an unpleasant experience.
The gist of what happens when the state makes your estate plan (including your will) for you is that your relatives or spouse inherit. The normal order of who inherits first is:
- Grandchildren (then great-grandchildren, etc.)
If none of the above are alive, then it passes to:
- Parents or grandparents
- Brothers and sisters
- Nieces and nephews
This order may seem practical, but as we saw in John’s scenario, it was terrible and not what he wanted at all. This law-defined pattern can be changed as much as you want with a simple will. The above order is very problematic in many cases, not only John’s. For example, if you are on a second marriage or have children from a prior relationship, your children can quickly become disinherited. If you have relatives you would rather leave out of your will (like John’s cousins) then you have to specifically mention that or else they will inherit. If you want to leave something to charity or have someone take care of your immaculate maze garden you have built, that needs to be spelled out. The list goes on and on, and I will not bore you with the problems here. For now, know they exist and are numerous.
One other very important part of having a will is that you get to name who is in charge of making sure your wishes are carried out. This person is called your Personal Representative. Since John didn’t have a will, the judge just named whoever was related that showed up in court that day. It turns out that was Rita, who John never would have put in charge and didn’t want to receive anything according to the show. John could have easily named Tyler, or anyone else for that matter, if he simply would have written things down.
Finally, the very family John wanted to investigate for murder in the beginning of the podcast is the family that ended up with all of John’s land. There is no way in any alternate universe that John would have wanted that to happen. If you research pictures of John’s land, the maze in particular, it seems as though it will not make it. The end of S-Town seems to allude to the fact that the land will probably hold parking lots or a Wal-Mart someday. Obviously not the ideal use John would have had in mind.
What Could Have Happened With A Will?
With a will, John McLemore could have directed anything he wanted to whoever he wanted. This would have cut the cousins out of things completely. They would have showed up in town and then been quickly turned down from receiving anything by a judge.
Further, John would have been able to appoint who he wanted as his Personal Representative. This is the person who is in charge of the probate process. Basically, that means the Personal Representative makes the will work. They find all the assets, value them, deal with any creditors and distribute everything per the terms of the will. Rita would have not been able to be appointed as Personal Representative and would not have been able to pocket the money from the sale of the land. More importantly, she wouldn’t have been able to sell it in the first place.
Don’t fall victim to the same trap. Don’t let the “evil” relatives in your life receive your hard-earned assets. Most importantly, don’t leave the “Tylers” in your life out in the cold by themselves. Keep in mind, if John had a will that named Tyler as a beneficiary, none of the things Tyler did could have been crimes. They would have been things he was required to do.
It is truly too bad that John never got around to putting a will in place. It is the excuse I hear far too often in my line of work as an estate planning lawyer. People put it off and put it off until it’s too late. If John would have just made himself draft a plan, perhaps we would be able to tour his maze, to see his clocks, and perhaps S-Town would be on its way to being more of a good town that upheld his legacy.
Do Trusts Have Disadvantages? YES!
With the recent changes in estate planning and probate laws in Colorado, Medicaid planning is not as easy as it once was and will-based plans are becoming more and more popular over trust-based plans. I have taken the time here to list some of the benefits of a will-based plan, and some of the potential downfalls to a trust-based plan (especially when Medicaid is concerned):
- Medicaid laws change very frequently making it impossible to guarantee that a plan written today will work tomorrow. This is true even if you pay much more money for a trust-based plan over a will-based plan.
- In order to best protect against Medicaid claw backs you need to make an irrevocable trust, preferably where you are not the trustee. This means that you do not own or control your property anymore. That relationship makes Medicaid supposedly not being able to come after it. If, however, you break the formalities of the trust and show “incidents of ownership” Medicaid will still claw through these trusts.
- If you own property as Joint Tenants With Rights of Survivorship then as soon as one person passes, the Joint Property passes immediately to the surviving spouse. It avoids probate and arguably there is nothing for Medicaid to make a claim against. This would not apply if you were the second spouse to pass, however. This type of planning can be completed without a trust at all.
- The Medicaid laws allow for exempt or non-countable assets. This means that the government doesn’t count your primary residence, your car, some of your personal household goods, retirement accounts, and more in their claw back review.
- Probate is actually recommended by many attorneys now in Colorado due to the numerous law changes. You get the benefit of a creditor cutoff period where creditors have only four months to make claims or they are forever barred. A lot of debt gets wiped out this way and the cutoff period is not available for trusts. Further, a judge signs off on the work an executor/personal representative completes, releasing them of liability in the future. A judge does not sign off on anything for a trust in most cases.
I have done both trust administrations and probate cases. Both have taken similar amounts of time, and I have seen trust administrations actually cost more in the end. There are instances when a trust can be very beneficial. Tax avoidance and probate avoidance are two of those. I only recommend avoiding probate if you have property in other states, however.
Probate FAQ for Colorado
As a law firm that practices probate in Colorado, we get a lot of questions from people regarding how the process works and what needs to be done in what order. To answer some of the most common questions that we get, we’ve published a legal guide on AVVO to help out.
Check out the guide here: Probate FAQ