A Struggle Back to “Financial Independence” After a Brain Injury

While in a coma, Harvey lost his civil rights and all control over his own money, due to a court-ordered conservatorship. A durable power of attorney could have prevented this nightmare situation.

Don’t wait — write up your durable power of attorney TODAY!
Don’t wait — write up your durable power of attorney TODAY!

On a beautiful June day in 2009, Harvey was riding his motorcycle up the Pacific Coast Highway (PCH) in Malibu as he had many times before. He enjoyed the scenery and the feel of the open road. However, he has almost zero memory of this particular day.

As he neared the Malibu Pier, a woman driving a sedan ahead of him suddenly made an illegal U-turn — turning directly into his motorcycle. Thankfully, he was wearing a helmet that surely saved his life. The highway was shut down and Harvey was airlifted to UCLA hospital where he spent the next two months in a coma.

Harvey had suffered a severe traumatic brain injury (TBI) along with many physical injuries, and he would spend the next six months in hospitals. From UCLA he was transferred to Kindred Hospital in Culver City, and then to the Bakersfield Centre for Neuro Skills residential program.

It was in those first few weeks while Harvey was in a coma that his independence and civil rights would be terminated through a court-appointed conservatorship.

Harvey and his wife Sheila had been married for 16 years and had a six-year-old daughter. Having been born into privilege, Harvey had considerable wealth that he had not co-mingled with his wife’s accounts. Additionally, Harvey and Sheila had never prepared a will, power of attorney, or health care directive. Harvey felt that he was a healthy 40-year-old, and he would handle those legal things when he was older.

Sheila and their daughter were living in their family home, where she was responsible for a hefty mortgage, even though she had limited access to Harvey’s money. She hired an attorney and applied for conservatorship of Harvey and his assets. The case was heard by Judge Reva Goetz — who has handled such famous conservatorship cases as Britney Spears and Mickey Rooney.

Sheila was denied conservatorship over Harvey because they had recently separated and were living under different roofs. Even though she immediately rushed to his side in the hospital and resumed her role as his wife, the court decided that they couldn’t be certain whether or not Harvey would want Sheila to have continued access to his money.

Eventually Harvey’s father and his attorney were awarded co-conservatorship and were able to pay general bills such as real estate and income taxes, utilities, groceries, etc. Harvey would eventually be awarded a monthly “allowance” to spend on whatever he wanted, making him feel like he was being treated like a child.

Once you’ve been put into a conservatorship, you can’t hire an attorney, so one is appointed for you by the court. This attorney is called a Probate Volunteer Panel (PVP) attorney. Harvey’s PVP attorney bragged at an initial meeting with Harvey and the family that she enjoyed causing friction between husbands and wives. She felt it was her duty to decide what was best for her client (Harvey) no matter what he or his family members might say to the contrary.

Harvey had a hearing every six months or so to monitor how things were going. He was supposed to be advised by his PVP attorney, however, she kept falsely telling the court that Harvey wanted a continuance of the conservatorship. Harvey wanted his wife Sheila to be conservator, but the PVP attorney would not allow it, and argued for the continued humiliation of the court-monitored allowance.

At the hearings, the lawyers — which by this point consisted of an attorney for his wife, an attorney for his father, Harvey’s PVP attorney, and eventually a court-appointed attorney for his minor child (known as “guardian ad litem”) — and judge would talk about him as if he were a child (because basically without any of his rights, he sort of was) and they would never refer to him by name — only as the “conservatoree.” Harvey said it was very dehumanizing to be treated this way.

As Harvey began getting better and better, it was becoming obvious that the conservatorship had to come to an end, but doing so was harder done than said. He had to have a “capacity declaration” performed by a physician. The problem is that when a large amount of money is at stake, doctors are reluctant to say yes, because if they said yes and he lost it all the next day, the doctor’s decision would be questioned.

Eventually Judge Goetz gave him the name of a specific doctor that she trusted. Harvey would endure two days of rigorous testing, and in January 2011, the doctor eventually wrote a declaration that Harvey was responsible enough to control his own life. In March of 2011 the judge terminated the conservatorship and Harvey was once again granted all of his civil rights. After the hearing was over, the court reporter approached Harvey and told him she had sat in on thousands of cases like his, and his was only the third one she had ever seen terminated — it is that rare to have a conservatorship overturned.

However, his nightmare did not end there.

The court-appointed PVP attorney was supposed to charge at a reduced rate; however, she solicited the judge to bill at her full rate, and was granted permission. This frustrated Harvey, as he felt the lawyer really never had his best interests in mind. Harvey had to file for separate counsel to fight the fee petition, which added two more attorneys’ fees. In addition to his PVP attorney’s fees, he also received a bill from his father’s attorney, the attorney who was acting as co-conservator, the guardian ad litem for his daughter, as well as his wife’s attorney — despite the fact that she had dropped her petition to be named conservator 18 months prior. Harvey had to pay legal fees, bonding fees, and mandatory accounting fees.

In total, this cost him just over $1 million dollars — all because Harvey did not know he should have a durable power of attorney for health care and financial matters — which created a situation where others took advantage of his health crisis.

Right after the conservatorship was lifted, Harvey told Sheila he wanted to go to Vegas and gamble…”because it was his money, damnit!” She looked at him and said, “NOT WITHOUT A WILL FIRST!” So in April 2011, Harvey wrote a holographic (handwritten) will in his own handwriting on a piece of paper that said, “Everything goes to my wife.” Shortly afterwards, he hired a law firm to implement all of their trusts, wills, power of attorney, etc.

Harvey wants everyone to understand the importance of having a durable power of attorney drawn up NOW, no matter your age or health because you never know when life takes a drastic turn like Harvey’s did. This durable power of attorney is a simple form you file with your attorney for a few hundred dollars, and it directs who is responsible for you and your estate should you become incapacitated. Had he had one, it would have saved him the humiliation of losing his civil rights, as well as causing his loved ones time and grief — and of course — $1 million in attorney and other fees.

Amy Zellmer is an award-winning author, speaker, and advocate of traumatic brain injury (TBI). She is a frequent contributor to the Huffington Post, and has created a privateFacebook group for survivors and also produces a  podcast series. She sits on the Brain Injury Advisory Council (BIAC) through the Brain Injury Association of America’s and is involved with the Minnesota Brain Injury Alliance. She travels the country with her Yorkie, Pixxie, to help raise awareness about this silent and invisible injury that affects over 2.5 million Americans each year.

In November, 2015 she released her first book, Life With a Traumatic Brain Injury: Finding the Road Back to Normalwhich received a silver award at the Midwest Book Awards in May, 2016. Her second book,“Surviving Brain Injury: Stories of Strength and Inspiration” is a collection of stories written by brain injury survivors and caregivers and was released November 2016. for more information: www.facesoftbi.com

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