Beware The Con Game Of Conservatorships

by Richard Eisenberg

Since May is Older Americans Month — established by JFK in 1963 when it was called Senior Citizens Month — it’s an appropriate time to sound an alert about a con game being played on some older Americans. I’m talking about crooks who are appointed as conservators (or guardians) to manage someone's affairs and then turn their wards into financial abuse victims.

This scourge was brought to my attention by the new book, The Con Game: A Failure of Trust, by T.S. Laham, a business professor at Diablo Valley College in the San Francisco Bay Area. In the book, Laham writes that America’s guardianship system is “an open invitation to potential abuse.”

Good and Bad Conservators

Roughly 1.5 million adults are under guardianship, according to a 2013 AARP estimate. Of course, many court-appointed conservators are wholly reputable; some, such as the one Mickey Rooney had, are even brought in to quash alleged elder abuse.

(MORE: Mickey Rooney’s Elder Fraud Legacy)

But in other cases, Laham says, conservators or guardians steal from, neglect or physically abuse the people they’re supposed to assist. A 2010 Government Accountability Office guardianship review of 20 cases found that “guardians stole or otherwise obtained $5.4 million in assets from 158 incapacitated victims, many of whom were seniors.” The National Association to Stop Guardian Abuse blogs and reports on the latest news on guardianship abuse.

I recently interviewed Laham about her conservatorship concerns and to get her advice for families considering getting a conservator appointed for a relative or eager to have an unscrupulous conservator removed. Highlights:

Next Avenue: Why did you write ‘The Con Game’ and who is it for?

Laham: I decided to write it to shine a public spotlight on elder abuse in America. The problem is escalating.

Is the problem with conservators that family members or supposed friends are appointed conservators and they steal? Or that courts are appointing other people who turn out to be crooks?

All of the above.

I’m trying to show that there are some problems in the system that are fixable. Most have to do with oversight and accountability. I assumed that the system was well-regulated and controlled, but that’s not true.

(MORE: When Elder Abuse Hits Home)

How is the conservator system supposed to work?

A judge appoints a “reasonable” person or organization as a conservator or guardian to make medical and/or financial decisions for an adult who would be considered a conservatee or a ward. The conservatorship ends when the conservatee dies.

What are the problems with conservatorships?

Conservatorships are not a bad thing; they’re necessary. It’s the execution of them that could be improved at times.

But people need to understand that conservatorships should be considered as the most restrictive form of court intervention. They can strip people of their individual rights.

And a conservatorship can create more complications; the family may need to sit on the sidelines because the conservator removes decision-making control from them.

What else concerns you about them?

Conservatorships are costly. There are filing fees, maybe attorney fees and ongoing legal costs. Conservator fees range from $50 an hour to $135 an hour or more. Trustee and other professional asset manager fees for high-value estates typically run from 1 to 1.5% of the asset value annually.

Is part of the problem that court-appointed guardians lack training for the job?

That is precisely correct. It’s a huge responsibility to be a conservator or a guardian. Most of time these individuals do incredible loving, caring compassionate jobs caring for relatives or friends. But the problem is they may be overwhelmed or undertrained. One survey found that fewer than 20% of courts gave conservators and guardians instructions on carrying out their duties and legal responsibilities.

Is it a good idea to bring in a conservator when a family can’t agree on how to manage their parent’s affairs?

If you want to use a conservatorship for a family dispute about an incapacitated elderly relative, that may not be the right thing to do.

A better option is to go through facilitative meditation, unless the situation is so polarized that the only other option is to go to conservatorship. A conservatorship should be a last resort as a solution to a family dispute.

What would you advise families to do if they think a relative does need a conservator?

I strongly urge people to see an attorney who specializes in this area or in elder law and discuss whether conservatorship is an appropriate solution to the situation. The National Academy of Elder Law Attorneys is an excellent resource; they will point you in the right direction.

If a son thinks his mother is unable to manage her affairs, for example, he should provide the attorney with information to prove this to file a petition with the court. If the judge believes it’s warranted, he or she will grant the power to the son.

I’d also recommend that a family get help: There are care-management services and caregiving alliances. For financial assistance, get a financial adviser.

For someone appointed as a conservator, the federal Consumer Financial Protection Bureau has a helpful guide, called Managing Someone Else’s Money.

And what should a family do if a conservator was appointed and they spot danger?

The family has to go to court to see if they can get the conservator removed. You have to prove the person isn’t doing the job — maybe he’s neglecting mom’s needs or missing assets. It’s an uphill battle.

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Beware The Con Game Of Conservatorships