Vampire Legal Issues: The "For Real, Elena Doesn't Need a Guardian" Edition

(Part of a continuing series of guest posts by my friend Christine, who is now in fact a lawyer.)

So I haven’t done one of these super-dorky posts in a while, mostly because I get bored of myself screeching “BUT HOW DID HE GET IN THERE?” constantly so I just vaguely consider it and then wander off and eat a cookie.  BUT.

After last night’s episode, I saw some commentary on the Interwebs about Elena needing a new legal guardian, and I just can’t help myself, so here’s a rerun for you.  Elena is 18.  Alaric was not ever her legal guardian, and she certainly doesn’t need one now.  (As an adult, she’d only need a guardian if she was incapacitated in some way, and she’s not. You could argue that her judgment is poor [what with the “which serial killer do I love the best” struggle and all], but that’s not incapacity.  I do like to imagine the hearing, though.  “Well, she looks normal and gets the bills paid on time, but her undead ex went on a murderous rampage and all she did was tell him he was a good person deep down!  WHO DOES THAT?”)

[Disclaimer: Still not licensed in Virginia, so if you have family situations like Elena’s, ignore me, run straight past your nearest Virginia-licensed attorney, and GET SOME THERAPY.]

Here’s what I wrote at the beginning of the season:

I cannot state this strongly enough: ALARIC IS NO ONE’S GUARDIAN.

Underline!  Boldface!  Italics!  Flashing lights!  Emotionally, I agree that it makes sense for Alaric to be Jeremy and Elena’s parent figure.  They’ve lost so many relatives, and Alaric knows about the supernatural world they inhabit.  He’s obviously got issues [Naughty Alaric], but he’s still the best option they’ve got.  However, being guardian to a child is a legal role, and except in the case of the child’s parents, it requires court authorization.

[The following citations are all to Virginia law; the other states with which I am familiar are all substantially similar.]

First of all, Elena has turned 18 and doesn’t need a guardian.  She is legally an adult.  Even if Elena were not an adult, Alaric would not be her guardian because he has no legal relationship to her.  Isobel was probably not legally Elena’s mother at any point, because she was not listed on the birth certificate.  A woman who gives birth to a child is legally presumed to be the child’s mother. [cite]  How do we know who gave birth to a child?  Well, for starters, she’ll be listed on the birth certificate.  Therefore, there is a legal presumption that Miranda Gilbert was Elena’s biological mother.  Elena is essentially adopted, except that there were never any adoption proceedings.  She is not legally an adopted child.  Is this shady?  Absolutely.  But you’re going to be hard-pressed to convince a judge to run a DNA test at this point.

Furthermore, even if Isobel were Elena’s legal mother and had never given her up for adoption, Alaric would not be Elena’s presumptive guardian unless he had adopted her or was named her guardian in Isobel’s will. [cite; cite; see also definition of child.]

Jeremy- well, how old is he?  Sixteen or seventeen?  Jeremy still needs a guardian, and he can request that Alaric be appointed his guardian.  However, that appointment must go through a court first. [cite]  I don’t know how likely a court would be to appoint Alaric; Jeremy’s wishes would be considered but they are not controlling.

Now, all of this is probably academic; if no one notifies the appropriate authorities that the Gilberts are living on their own, the courts probably won’t step in. Jeremy will turn 18 soon, and we can pretend that Jeremy and Elena will get control of their inheritance at 18, though that’s unusual.  Anyway, point is: ALARIC ISN’T THEIR LEGAL GUARDIAN.

But what was that about their money?

The sad and bereaved Gilberts don’t seem to be lacking in income to spend on flapper dresses and hunky suits and whatnot, so let’s assume their parents left them significant assets in addition to an enviable real estate portfolio.

I think I remember Uncle Daddy John mentioning being the estate’s trustee (he probably meant the trustee of the trust that received the estate’s assets, but whatever).  Those assets are probably in a family trust that’s intended to provide for Jeremy and Elena until they can support themselves- pay for college, living expenses, property taxes, and so on.  A trust instrument (which is the governing document) can set an age for assets to be distributed to the trust’s beneficiaries.  This is often done in installments, say at 21, 25, and 35 (or something similar).  It’s very unlikely Elena would have legal ownership at this point; everything is probably still owned by the trust.  So hypothetically the trust needs a trustee, since Uncle Daddy John is dead.  The trust instrument would likely have named an alternate trustee, but unfortunately (for me if for no one else), the show hasn’t gone into this.  It’s also possible that a bank or financial institution was listed as co-trustee for the convenience of having it administer the trust’s assets.

However, let’s face it: it probably doesn’t matter. Elena’s pet vampires are available to compel bank tellers and stock brokers whenever is required. (Do you ever wonder about Damon’s to-do list? 1) Clean rugs; 2) Make googly eyes at brother; 3) Compel accountant to file Gilbert Family Trust income taxes; 4) Maintain eyebrows.) It’s likely a great deal easier to do that than to worry about legalities, especially since I’m not sure that Uncle Daddy John was ever declared legally dead. (I wonder what’s happening with his estate? Damn, Show, inquiring minds (?) want to know!)

So basically: ignore what I just said, because I don’t think following the letter of the law is on Elena’s list of top ten priorities.

I’m so glad we got that straightened out. I’m going to do actual work now. :-)

Christine

PS-  I hope Alaric changed his beneficiary designations! (Don’t forget to update your estate plans when you pseudo-inherit affluent waifs from your deceased vampire significant others.  Probate codes haven’t caught up to you.)

PPS-  Feel free to make Season 4 The Season of Estate Administration, Show.  Or you could do a spin-off.  There are so many possibilities: Tyler could challenge his mother’s life estate!  Matt could argue before the Founder’s Council that everyone in town is dead so should be divested of their property because NO DEAD HAND CONTROL!  There could be a Vampire Legal Institute to draft a Restatement of the Law, Property (Vampires and Other Abominations)!!!  Abominations with Assets would be the best spin-off EVER.

PPPS-  Also, Alaric should sue Stefan for beating him up last week, and then Stefan could be all, “He consented!” and the judge could throw the case out!  SUCH FUN.

PPPPS-  Not really relevant, but did you see Jeremy with his hunky vest and his sleeves rolled up?  Three buttons away from a romance novel stepback, I’m telling you.  Browse the customer images, y’all.  And if you are thinking to yourself, OH, those are hilarious, I could look at those forever, then please do!  (Just make sure your boss isn’t behind you)  You’re welcome.