Jay Leno's Choice

While spending a few days away in a sunny beach location I couldn’t stop thinking about Jay Leno and his wife, Mavis. They’ve been married for 43 years. He’s 73, she’s 77 and Mavis has been diagnosed with “dementia [and] major neurocognitive disorder” according to court documents. Some news reports say she has Alzheimer’s but that has not been confirmed. (Yes, there is a difference between the two ailments as not all dementia patients go on to develop Alzheimer’s.) Every compassionate person’s heart breaks for the couple for the simple reason that there is no cure for what ails Mavis and the debilitating symptoms get progressively worse with each passing day. It is very possible that Jay will outlive his wife.

In late January the comedian filed legal papers in a California court to gain conservatorship of Mavis and her estate. (As readers of this column know this court-initiated process is called guardianship in most states.) People magazine quoted David Esquibias, a California attorney who works in the field as saying, “He (Jay) initiated the filing to set up a living trust for Mavis…to ensure that she has “managed assets” to provide her with future care if he died.” If a judge rules that Mavis is “an incapacitated ward of the court” and approves Leno’s request to be appointed as conservator then Jay would then have the legal authority—known as “substituted judgement”—to create a will, an irrevocable trust and/or a beneficiary designee for Mavis. Apparently she did not craft such documents prior to her diagnosis. The Leno’s have no children but Mavis does have a brother who could become heir to her estate.

Let’s all take this as a reminder to get our legal documents in order NOW. Had Mavis Leno previously taken time to prepare a Last Will and Testament, a trust or some other sort of estate plan its likely her husband would not have had to take this step now. Probably a lawyer informed Jay Leno that if he dies first, then his wife passes with no legal documents in place their fortune would be up for grabs in a great feeding frenzy in California’s notorious probate court.

The court filing makes it clear that Jay truly believes Mavis wants him to take this step and that she does not want anyone else to be named as her conservator. But if someone comes forward at the scheduled April 9^th hearing on the case to contest the proposed arrangement—say Mavis’s brother or another interested party—this whole process could get very complicated. If there is disagreement the judge can bypass Jay and appoint a total stranger, a for-profit professional, as the conservator. In addition, other outsiders could also be tapped by the court to render independent opinions about Mavis’s mental capacity, her estate value, living arrangements and other quality-of-life issues.  If one determines Mavis is incapable of caring for herself at home they might suggest she be moved to an assisted living or nursing home and the judge could quickly decree it.  As I wrote here after Cher recently filed for conservatorship of her habitually drug-addicted 47-year-old son:

   “I just hope she was fully informed about the pitfalls of conservatorship. After many years investigating this routinely exploitative system I sure hope Cher realizes what a morass she may be signing up for! Does she realize that this ill-regulated and largely unsupervised system is populated by financial predators just waiting in the wings for juicy, lucrative cases like this? Simply say the words, “Cher’s son” and dollar signs pop into their eyes.”

It appears that the Leno case is far more calm and amiable than Cher’s attempt to conserve Elijah Blue Allman, her son with the late rocker Gregg Allman. For one thing her son’s estranged wife is back in the picture and together the couple is insisting that Cher’s attempt at conservatorship is retaliatory and not necessary. Elijah maintains he is currently clean and sober. Now there is no telling which direction the judge hearing that case might take. As I wrote in my recently released book, We’re Here to Help – When Guardianship Goes Wrong (Brandeis University Press) if the court decides a family is “dysfunctional” it is a safe bet that a battle will ensue. In most cases a judge will appoint professional strangers to determine what happens next—should a permanent conservatorship or guardianship be established or not? In cases where there is lots of money to be made by these chummy professionals it isn’t likely that any of them will quickly report that a conservatorship is not needed. The more they draw out the proceedings the more fees they can charge.  The estate of the proposed ward pays for all of it.

  In contrast, and by all accounts, the Leno’s have enjoyed an idyllic marriage. Jay has publicly said that the secret to his happy union is that “You have to marry a normal person” like he did. “Marry the person you wish you could be…that’s worked out for me.” He called Mavis a “perfect partner.” There is no indication that anyone associated with Mavis Leno will come forward to challenge Jay’s attempt to establish a legally binding estate plan for his wife. But I can tell you after investigating this nationwide states-run system for many years judges hearing such cases have done baffling things. These proceedings are heard in what’s called “equity courts” and all proceedings are held in secret. In this world due process is not guaranteed, there are no trials and no normal witness testimony as is heard in civil or criminal courts. Equity court judges can, according to one prominent activist who works to change the often predatory system, “These jurists do whatever they damn well please” and anxious families have nowhere to turn with their complaints. Once a conservatorship or guardianship is established it is next to impossible to undo it.

Here’s my biggest concern. Because the mainstream media reports almost exclusively on guardianship/conservatorship cases that involve a celebrity the public might think it’s only the uber-rich (think Britney Spears) who are conscripted into a court controlled lifestyle. Not so! The public does not fully understand how easy it is for one person to guardianize another.  The average citizen has no idea that currently there are an estimated two million Americans living as a ward of the court. They have been stripped of their civil rights, including the right to spend their own money, drive their car or decide which doctors or friends they can visit with. They can no longer vote, marry, freely travel or decide where they will live. In all but a few states they cannot hire their own lawyer to fight for them.  As I wrote in my book, the moment someone is declared an incapacitated ward of the court all their money, property and investments are confiscated by the state and put into the name of the appointed minder. At least $50 billion is seized from wards—every year! So, with that much money at stake is it any wonder that the unscrupulous are attracted to work in this ill-regulated and largely unsupervised arena? Guardians don’t even have to be licensed to practice except in three states (Alaska, California and Nevada) Your plumber or hairdresser must pass a far more stringent set of exams and adhere to lots more rules and regulations than a guardian whose job it is to take over all personal, medical and financial decisions for the ward.

There are lots of guardianships and conservatorships that work out well. And there are many fine and compassionate court appointees who work within the system. However, over the years the system has morphed from a program designed to protect the vulnerable to one that preys on them—especially those who have some money. Let’s hope none of the negatives that have touched so many American families affect Jay and Mavis Leno as the TV star pursues his current path to help his beloved wife. They both deserve the peace of mind that comes with making sure all their affairs are in order.

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