How they happen, how you can prevent them and how to persuade a judge to terminate one
By Edd and Cynthia Staton
In 2019, a judge ruled that a 73-year-old man with a history of mental illness and limited physical capability was incapacitated and in need of a guardian. His sister (the siblings' names are being withheld to protect their privacy) sought to fill that role, but the presiding judge thought otherwise.
She disagreed with decisions of the court-appointed guardian, and with her lawyer found deficiencies in the annual accounting of her brother's finances. Because guardians have the authority to restrict communication with wards, as the people they care for are known, she has been unable to speak with her brother since February 2021.
It was during this period that, after 13 years of highly publicized drama, the conservatorship of the pop singer Britney Spears came to an end. Explosive testimony by Spears in that case pulled back the curtain on abusive guardianships, eliciting outcries from politicians earnestly promising to "do something." To date little progress has been made.
Elder Abuse Is Soaring
With an aging world population, instances of elder abuse are increasing at an alarming rate. A study by the U.S. Department of Justice reveals that 10% of adults over 60 in the United States experience some form of abuse each year. Shockingly, the research further suggests that only one of every 24 cases is reported.
David Clark, a lawyer in Okemos, Michigan, said this form of abuse is "not limited to financial exploitation, but can also include physical, emotional, and/or sexual abuse and neglect."
"It's terrifying because more than half a million cases of abusive guardianships of the elderly are reported in the U.S. every year, but millions of cases go unreported," he adds.
The scope of the problem is difficult to quantify because there is no federal regulation over these cases. Responsibility for tracking toxic guardianships rests with the states, where rules vary from jurisdiction to jurisdiction and courts are so under-resourced that only a handful even collect guardianship data. Whatever records there are remain at the local level.
How Guardianships Become Toxic
Generally, guardianship refers to protecting a person and conservatorship to protecting the person's finances, but no formal legal definition differentiates the terms. Here "guardianship" will be used for all of these court-appointed arrangements.
Guardianship is a well-intentioned legal entity designed to shield from harm those who are truly incapable of making and communicating informed choices. Most of the time guardians do the right thing, properly managing the daily life of debilitated wards and protecting their property and assets.
Tragedy arises when vulnerable individuals are taken advantage of by those who should be protecting them. From interviews with attorneys specializing in these types of cases, there are two typical patterns of abuse.
Good Initial Intentions Go Wrong
A guardianship may begin as appropriate but, over time, guardians may lose the ability to properly care for the ward. "It could be a result of substance abuse, mental illness — or, in cases in which the elderly person and the guardian are closer in age — even cognitive decline in the guardian himself," says Ryan D. Byers, a lawyer in Jacksonville, Illinois.
"This scenario is often hard to detect," he adds, "because when it began, there was nothing problematic about the guardianship."
A second circumstance occurs when "a family member has good intentions to help their aging relative, but doesn't realize the work, time and emotion that will be needed to carry out the guardianship," says Travis Christiansen, a lawyer in St. George, Utah. "Thus, as time goes on, the relationship becomes abusive."
Predators Purposely Take Advantage
The most common and appalling situation is "when a person (family or not) deliberately seeks out vulnerable adults in order to take advantage of them financially through guardianship," says Christiansen.
Byers agrees that many times guardianship abuse has a financial component. "Family members who do not have the desire to support themselves see an opportunity to enter into an elderly person's life and have a stable roof over their heads," he says.
Byers further points out that if the abuser is a child, grandchild or other family member who truly was dependent on the elderly person at an earlier stage in life, the ward may be unwilling to sever the relationship because of this psychological bond.
How to Prevent an Abusive Guardianship
The Catch-22 of guardianship is that once it is in place, the ward no longer has a voice in his or her own affairs. The guardian has control over everything — how the ward's money is spent, where the ward lives, even who can contact the ward. Therefore, terminating an abusive guardianship can be extremely difficult and costly.
The key is early detection. Red flags include:
- Signs of physical harm begin to appear.
- The guardian suddenly moves into the ward's home.
- Property starts to go missing.
- Unusual financial transactions occur.
"Approaching the elderly person directly is something that should be done only with great caution," Byers advises, "as it can escalate abuse if the abuser learns that he is suspected."
Particularly if you are a family member, with the guidance of these agencies or an attorney who specializes in these types of cases, it could be possible to petition the courts for guardianship yourself. Or to seek a restraining order that removes the abuser from the life of the elderly person.
How to Avoid Trouble
Being proactive in advance of a possible guardianship scenario is the best solution to preventing future abuse. Legal steps include creating:
—Durable power of attorney. Allows you, not a judge, to specify who you want to act as your agent. As a further safeguard, you should require that your finances be examined periodically by a third party of your choosing.
—Revocable (living) trust. With this document you give someone else the power to make financial decisions on your behalf in the event you become unable to do so. An added benefit of this type of trust is your estate avoids going through the state probate system.
—Advanced medical directive. Also called a living will, it provides instructions when you are unable to make decisions for yourself regarding your preferences for medical care should you be terminally ill, seriously injured, in a coma, in the late stages of dementia or near the end of life.
—Designation of pre-need guardianship. Allows you to select your caretaker in advance if you ever becoming incapacitated. Check to see if this legal instrument is valid in your state.
Looking Ahead
While guardianship law is state law, attention and funding from Congress are essential for systemic change. Thus far, leadership at the national level has been lacking.
Senator Bob Casey, a Democrat from Pennsylvania and chairman of the Special Committee on Aging, has introduced legislation that would establish a national Guardianship Bill of Rights. The Senate has yet to assign it to a committee for review.
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Abusive Guardianships
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