Stan Lee was revered as the genius behind the creation of a pantheon of superheroes who righted wrongs and defended the weak. But he turned out to be the one who might have needed rescuing in his final years.
Lee, the former head of the Marvel Comics empire, who personally co-created pop culture icons including Spider-Man, Black Panther, the X-Men and the Hulk, died on November 12, 2018, at 95. His estate has been valued at approximately $50 million. However Lee's legacy has been clouded by accusations of financial mismanagement and elder abuse, levied against his daughter, friends, and business associates.
The most carefully planned estate doesn't protect someone before he or she dies. But in Lee's case, a guardianship might have protected his assets and quality of life.
In his last years, Lee was ill and grieving the loss of his wife, Joan, who died in 2017 after nearly 70 years of marriage. He had a contentious relationship with a changing roster of attorneys and business managers. He also had a volatile relationship with his only child.
Months before Lee died, attorneys representing his daughter and former manager were in court fighting over who represented the Lee family interests. The court also granted an elder abuse restraining order against the former manager, according to The Associated Press.
An increasing number of people are living well into their 90s and beyond, but accompanying health and memory problems make them very vulnerable to exploitation, giving rise to elder abuse and financial power of attorney abuse. While a family member may be the official or unofficial caretaker for the individual, many people can't or shouldn't rely on family to help manage their personal and financial affairs.
While guardianship is the most restrictive means of providing for the care of an individual with mental incapacities, other alternatives, including powers of attorney, are not always the solution to the problem. While many practitioners recommend powers of attorney as a means of avoiding guardianship, significant elder abuse can and does occur through the use of a power of attorney, particularly financial abuse.
In most states, an agent under a durable power of attorney has no obligation or duty to report to anyone but the principal. In the case of incapacitated principals or principals with diminished mental capabilities, the agent's actions are likely not monitored at all because the principal is incapable of doing so. In those cases, the financial abuse may continue for years before it is eventually discovered and in some instances, it may not be discovered until after the principal's death.
Guardians, on the other hand, are appointed by and monitored by the court and are subject to court oversight and various court reporting requirements, which is why many instances of power of attorney abuse eventually lead to the institution of court supervised guardianships.
An estimated 1.3 million adults are under the care of guardians --- either family members or professionals, according to the Senate Aging Committee. A guardian can have significant authority over the individual's life, deciding when and where to seek medical care, how retirement savings will be spent, and who can visit the individual.
In Lee's case, with so many people vying for his attention and assets, appointing an independent professional guardian might have helped to reduce the turmoil of his later years.
But guardianships are only as effective as the people appointed as guardians and the system supporting them.
In November 2018, the Senate Aging Committee issued a report recommending ways to improve the guardianship program, including:
Enhanced monitoring of guardianship arrangements;
Criminal background checks on all prospective guardians;
Improved collaboration among government agencies, community organizations, and the courts; and
Training for guardians, family members, and court staff on guardianship responsibilities and on how to spot signs of abuse.
To facilitate its recommendations, the committee announced the introduction of a bill called the Guardianship Accountability Act. The proposed bipartisan legislation would also expand the availability of federal grants to improve the guardianship system.
As an example, the Supreme Court of Pennsylvania adopted a new Rule 501 to the Pennsylvania Rules of Judicial Administration on August 31, 2018, which implemented a new statewide Guardianship Tracking System (GTS). The GTS tracks all data pertaining to adult guardianship cases and is the exclusive electronic filing system with which guardians report to the court. The GTS includes the filing of inventories and reports, and its goal is to allow for increased monitoring of guardian activity while streamlining and improving the guardianship filing process.
Lee's unfortunate and widely publicized situation can hopefully serve as a wake-up call to individuals and their families when planning for their end-of-life care.
In my next post, I'll look at revised rules for guardianship proceedings in Pennsylvania that take effect on June 1.