"Legalized" Elder Abuse

The American legal system has established “guardianships” for the specific purpose of protecting vulnerable individuals–called “wards”–when a judge or judicial officer determines that the ward’s decisionmaking capability is so impaired that another person–the “guardian”—needs to be given the right to make these decisions. A guardianship is particularly appropriate for wards who are suffering from Alzheimer’s disease and related dementia, as well as advanced alcoholism and similar afflictions that render the person unable to care for his or her health and other needs. A “conservatorship,” twin to the guardianship, is set up to conserve the ward’s assets; the conservator acts as a custodian.

The legal obligations of the guardian and conservator. As defined above, these legal vehicles seem completely sensible and necessary. After all, people who are so incapacitated that their decisionmaking is unreliable obviously need professional assistance; left unprotected, their health and wealth are at risk. The law considers the connection between the guardian (or conservator) and the ward to be “fiduciary” in nature, a legal relationship of confidence or trust between two or more parties. Indeed, for legal purposes, a “fiduciary” duty requires the highest possible standard of care. It recognizes that the ward needs to have utmost confidence, reliance and trust in the guardian or conservator, whose aid or protection is essential. The fiduciary, therefore, is required to act at all times for the sole benefit and interests of the ward, with absolute loyalty to those interests.

The reality of guardianships and conservatorships. Unfortunately, vulnerable individuals are easy targets for the unscrupulous. Equally unfortunate is the fact that the legal system, having established these processes, frequently fails to supervise how they actually work.

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Legalized Elder Abuse: Guardianships and Conservatorships