It is difficult to read a news story about current events in our state or nation without someone saying, “This is about my constitutional rights.” It’s usually not being stated so much as it is shouted, in the comments section of social media posts, in roadside protests, or in public meetings.
On one hand, all the shouting about rights can be exhausting, particularly when the issue is not at all related to the Constitution. In a perfect world, I could pull out my pocket U.S. Constitution (thank you 1L Con Law professor) and explain that whatever people are screaming about is not found in the Constitution. Or, I could explain that not only do “you” have constitutional rights, but “I” have constitutional rights, and “those people over there” also have constitutional rights, and sometimes working with all those rights at the same time can be a tricky balancing act. However, we don’t live in a perfect world, and no one in the history of the world has ever changed their strongly held worldview because someone on Facebook suggested they were uneducated.
On the other hand, a lot of the rallies and demonstrations we have seen over the past year truly are in response to real infringement of constitutional rights for large swaths of our society. This shouting serves a legitimate purpose of forcing all of us to reckon with things we’d rather keep hidden from view.
Britney Spears’ Conservatorship Case: Issues Within the Guardianship System
For the shouting that doesn’t fit into the category of real infringement of constitutional rights, we might still be onto something good. If we can apply this current interest in constitutional rights in a productive way, what could be accomplished?
Jessica A. Liebau, Marquette 2011, is a partner in Wessels & Liebau LLC, Mequon, focusing on elder law, special needs planning, guardianship, guardian ad litem, estate planning, and estate administration. She is a member of the State Bar of Wisconsin Elder Law and Special Needs Section board and the Real Property, Probate and Trust Law Section. This article is adapted from Elder Law & Special Needs Journal of Wisconsin (Aug. 2021).
Get to know the author: Check out Q&A below.
For example, apply “This is about my constitutional rights!” to the media craze over Britney Spears’ conservatorship case. I recently was interviewed for apodcast on this topic and the topic of guardianships in general. What a great opportunity to talk about issues within the guardianship system and how those relate to individual rights! It was a fun podcast, and good questions were asked. But, at the end of our brief discussion, the host said something to the effect of, “Far from the most pressing, urgent legal case in America, but interesting nonetheless.”
I was somewhat disappointed that was how that ended. Yes, Britney Spears’ name is more synonymous with frivolous pop music than the gravitas of constitutional law, but how is her very public struggle to determine whether she should have control over her money, reproductive decisions, and family not a pressing issue? I’d rather each person under guardianship get as much attention as Spears is getting right now, but if this is the situation we are in, why not seize this opportunity? How wonderful is it that people who will never take a class in constitutional law are learning and writing about how our legal system works and what should be fixed.
This gives us an opportunity to explain to our friends and family that, while we don’t really know all that is going on with Spears’ case, there are many people under guardianship currently, and so many things we could do to improve the guardianship system for everyone. To make sure people’s fundamental constitutional rights are respected regardless of incompetence. To provide user-friendly avenues for relief when things run awry. To explain that this isn’t about being a fan of Spears but about protecting the rights of you, me, and everyone under guardianship, world famous or not.
Elder Financial Exploitation Legislation: Unintended Constitutional Effects on Older Clients
In another application of “This is about my constitutional rights,” the Elder Law and Special Needs Section was closely following the elder financial exploitation legislation pending in Wisconsin earlier in 2021. The section repeatedly implored the legislature to consider the (hopefully) unintended effects of these proposals on the rights of our clients over age 60. We asked whether it was appropriate to allow accounts to be frozen or powers of attorney (POAs) to be dishonored, solely based on a potentially untrained bank employee’s belief that a person needs protection because they’re “old.”
One of our esteemed section members testified before the Senate Financial Institutions and Revenue Committee about the negative effect this legislation would have on the individual rights of all people over a certain age. Whether that testimony made the difference or not, the point was crucial. If we are concerned about “your” constitutional rights and “my” constitutional rights, we should also be concerned about “their” constitutional rights (“their” being people over age 60, if you yourself do not fit into that category).
No one in the history of the world has ever changed their
strongly held worldview because someone on Facebook
suggested they were uneducated.
In elder law and disability law, and countless other areas of law, we can all be constitutional lawyers. Whether we carry around pocket Constitutions or not, we advocate for the rights of our clients. In elder law, we draft POAs to allow our clients to make their own decisions about their health care and their property. We defend against guardianships when clients should not have rights removed. We educate on supported decision-making and the “dignity of risk.” We advocate for adult-at-risk restraining orders or POA reviews, or other forms of intervention, when we see people violating the rights of others who cannot protect themselves. We consider autonomy and self-determination and “least restrictive environment consistent with needs.”
We help create special needs trusts and ABLE accounts (a particular type of tax-advantaged account) to make sure that people with disabilities can live as independently as possible, so that a lack of money will not result in a lack of options. We help restore the right to vote and help people with disabilities have access to free and fair elections.
We Can All Be Constitutional Lawyers
Real threats to our constitutional rights are happening every day, both through legislative efforts as well as the way existing laws are interpreted and applied (or ignored). There is a lot of work to be done, and we do not have the luxury of only seeing as allies those people who see things exactly the way we do. We exist in a moment when the Constitution is receiving a lot of attention, and that provides attorneys with a unique opportunity to engage with others and facilitate real change, if we are willing to make the effort.
Resources to Help Protect Older Clients
Whether you’re experienced in elder law or just getting started, you’ll find valuable information in the following State Bar of Wisconsin resources. Some might already be in your library.
BOOKS FROM PINNACLE®
Advising Older Clients and Their Families (vols. 1 and 2)
Be ready to help family and clients with aging-related legal concerns. This book covers many of the issues that aging brings, including services to help age at home and how to pay for them, Medicaid and Medicare, selected estate planning issues, and regulation of long-term care facilities. The book also discusses powers of attorney for health care and advance directives, veterans’ benefits, guardianships and protective placements, and more.
Advising Older Clients and Their Families (vols. 1 and 2) is available in print and online via the PINNACLE subscription-based online library, Books UnBound ®. The print book is $255 per volume for members ($320 nonmembers), plus tax and shipping. The set is $390 for members ($488 nonmembers).
The Guardian ad Litem Handbook
Learn to handle the ins and outs of GAL work with this book, which discusses the training needed for appointment as a GAL for a minor or an adult, counties’ different procedures for appointments, and compensation. The revised edition also incorporates developments regarding injunctions, restraining orders, and family care.
The Guardian ad Litem Handbook is available in print ($210 members; $263 nonmembers) and online via Books UnBound®.
Guardianship and Protective Placement for the Elderly in Wisconsin
This book contains the statutes, case law, and expert guidance lawyers need to ensure the safety and well-being of older individuals no longer able to live on their own. If an individual is not voluntarily willing to move to a particular placement and such a move becomes necessary, a guardianship order and a protective placement order are required. This is a resource for Wisconsin lawyers, whether representing petitioners or potential wards or serving as guardians ad litem.
Guardianship and Protective Placement for the Elderly in Wisconsin is available in print ($105 members; $132 nonmembers) and online via Books UnBound®. Electronic forms from the book are available online to print book owners and to Books UnBound subscribers.
Benchbook: Vol. V: Probate, Guardianship, and Mental Health
This book encompasses the multiple aspects of probate, guardianship, and mental health law in six major sections. Written from the perspective of judges and court commissioners with extensive experience in probate court, as well as guardianship and protective placement and services and mental health commitment cases, the book delivers rules, citations, commentary, timelines, and step-by-step guidance.
The Probate, Guardianship, and Mental Health Benchbook is available in print ($179 members; $224 nonmembers) and online via Books UnBound.
The Elder Law Forms Library
Growing older comes with a growing stack of paperwork. The Elder Law Forms Library gives easy access to 60+ documents from the State Bar’s most popular elder law resource books – all listed above.
Depending on the county and type of case, forms may need to be e-filed with the court. All forms in this library comply with the technical requirements of e-filing. The library is easily searchable by title or keyword, filled with mostly customizable documents, available 24/7 via the internet, and regularly updated.
Subscription to the Elder Law Library is $95/year (members only).
Order. For more information and to order, visit the WisBar Marketplace or call the State Bar at (800) 728-7788 or (608) 257-3838.
Meet Our Contributors
What’s the most rewarding part of your job?
Helping clients do the things they thought they could not do. Parents of children with disabilities so often feel overwhelmed by the never-ending “to do list.” Children of parents with dementia see no end in sight and no options for relief. Seniors who have been financially exploited feel like they have no one to trust. Victories in these arenas can be hard for people to see or measure. So, when we help obtain the guardianship, or the adult-at-risk injunction, or the desired public benefits, or we sign the new powers of attorney or the special needs trust, it’s an achievement. Clients feel that sense of accomplishment and realize they’re making progress and that they are more powerful than they previously thought. These are great things for which to be a facilitator.
Jessica A. Liebau, Wessels & Liebau LLC, Mequon.
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» Cite this article: 94 Wis. Law. 32-35 (October 2021).