There's Nothing Funny About Guardianship

There is nothing funny about guardianship. But that didn't stop John Oliver from tackling a subject, Last Week Tonight with John Oliver, that is fast becoming a problem for older Americans -- court-appointed professional guardians who have been granted legal authority to control an individual's life and finances.

Now, according to Oliver, when the system works, it's great. But when it doesn't work, well, it doesn't work at all.

Indeed, during the program, there's a video clip of Steve King, a judge in Tarrant County, Texas, saying the following: "Guardianship is a massive intrusion into a person's life... they lose more rights than someone who goes to prison."

And where things get problematic, according to Oliver, is where guardians gain control of their ward's finances. That's because, according to Oliver, private guardians can bill for each individual service they provide, from leaving voicemail messages to just opening the mail, and they can take payment directly from their ward's estate. "And those charges can accumulate fast and sometimes seem ridiculous," said Oliver, who then went on to show video clips of a guardian who charged his ward $1,027 to take go to a Phoenix Suns basketball game and to evaluate, among other things the effect the game had on the ward's mood.

Oliver also noted how guardians sometimes don't even know if their ward is alive or dead and how just 12 states require professional guardians be certified at all. "So just about anyone can become one," said Oliver, pointing to this Government Accountability Office (GAO) report, The Extent of Abuse by Guardians Is Unknown, but Some Measures Exist to Help Protect Older Adults.

And that means they, the professional guardians, are going to steal money according to Greg Kutz, a GAO investigator.

According to Oliver, the lack of oversight is worrisome given how easy it is to have a professional guardian appointed by a court and how long it takes to get out from under that guardianship. To be fair, Oliver said guardianship isn't inherently bad -- there are people who need it. But the checks and balances of court-appointed professional guardians needs, given the silver tsunami that's coming, to be improved -- from greater regulation to more funding for oversight.

What He Got Right, and Wrong
So, what did Oliver get right about guardianship, what did he get wrong, and what did he fail to include but should have? We asked experts for their thoughts.

As a general matter, Oliver did a good job providing an accessible overview of guardianship, some of the problems that can occur, and steps that can be taken to reduce problems, says Nina Kohn, the associate dean for research and online education and a law professor at Syracuse University College of Law.

"However, it's important to recognize that much of the behavior Oliver described in the segment is not only immoral, it's illegal," says Kohn, who testified before the Senate Aging Committee earlier this year. "Guardians have a fiduciary duty to the individuals for whom they serve. The types of fees Oliver describes guardians charging violate this most basic legal duty."

In good news, Kohn reports that the Uniform Law Commission recently released model legislation for the states that, if adopted by the states (and Maine has already adopted it), would help prevent such fees from being paid in the first place.

"As I noted in my Senate testimony, the act limits the ability of unscrupulous guardians to drain assets by charging unreasonable fees," says Kohn. "For example, it requires courts to consider the market value of services provided by guardians before approving fees. After all, attorneys serving as guardians should not generally be paid their hourly rate to do non-legal tasks like grocery shopping."

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There's Nothing Funny About Guardianship