by NASGA Member David Arnold
The root cause of guardianship abuse is that the present system of managing guardianship violates the principle of separation of powers required under the constitution to provide checks and balances. Cut the root and the whole plant will die.
Under the present system the court is responsible for selection and appointment of guardians in addition to its defined duty of prosecuting abuse by guardians. The court has sole power over guardianship.
If there is collusion between a judge and a guardian there is no legal recourse! If there is a complaint against a guardian the judge is both a party to the dispute and the arbiter of the dispute. This is a conflict of interest.
Judges cannot be forced to prosecute a guardian they appointed. This forces judges to admit they made a mistake. This violates the constitutional right of judges against self incrimination!
The answer to the problem is to separate authority for appointment and oversight of guardians from authority for prosecuting guardians.
Separation of powers can be accomplished by transferring authority for managing the affairs of incapacitated elder persons from the court to the state Elder Service agencies.
My state of Massachusetts has good Elder Service agencies that are capable of managing guardianship. This separation of powers would prevent collusion between a judge and a guardian and allow a judge to prosecute a guardian as a disinterested party without fear of self incrimination.
Having the Elder Service agency be responsible for selection and oversight of guardians does not represent a net increase in cost since the court would no longer have this duty.