When Guardianship Isn’t the Answer for Elderly Americans

It’s long been the default for aging people in cognitive decline. State policymakers have been moving toward an alternate arrangement that gives people more control over their lives. There are some things lawmakers should keep in mind.

OPINION | Oct. 16, 2026 • James A. Lomastro

Ask a state court system how many older adults are under guardianship, and often no one knows. When the Government Accountability Office examined elder abuse by guardians, court officials in six states could not provide exact numbers. That matters because guardianship falls under state law, run by state probate and family courts. It decides whether an older resident keeps control of where she lives, how she spends her money and what treatment she accepts.

Guardianship, in which a judge assigns someone (usually family, sometimes a professional) to make decisions for another adult, has long been the default for cases of aging-related cognitive decline. A guardian controls finances, medical care and living arrangements. It is permanent, sweeping and often imposed without consent. In an era of a rapidly growing older population, its limitations demand attention.

There is an alternative. In what are known as “supported decision-making” agreements, the person continues to make her own decisions but chooses trusted supporters to help her understand options and communicate choices. Unlike guardianship, the person remains legally responsible and in control. In 2013, a Virginia court treated a young woman's use of supported decision-making as a reason to limit her parents' guardianship petition. 

The case opened a door that states have been walking through ever since. Two years later, Texas became the first state to enact a statute recognizing such agreements. As of this September, at least 40 states and the District of Columbia had laws referring to supported decision-making, and those in at least 18 states required courts to consider less restrictive options before guardianship.

The laws vary widely in their approach. Florida, for example, requires guardianship petitions to describe efforts to use supported decision-making. Nevada requires a physician's assessment of alternatives. Model state legislation drafted by the Uniform Law Commission and supported by the American Bar Association offers a template for alternatives to be considered before guardianship is imposed.

Much momentum on the issue has centered on people of all ages with intellectual and developmental disabilities. Supported decision-making remains underused among older adults with cognitive decline — the population states will face most in the coming years. However state lawmakers approach the issue, there are some key provisions they and their states’ agencies and courts should keep in mind:

• Legislatures should give agreements teeth. A statute should require banks, hospitals and nursing homes to accept a supporter's presence and help, and it should require a statutory form, as Texas adopted, that gives all involved parties something standard to recognize.

• Legislatures should require written findings that less restrictive alternatives were tried or considered and found insufficient. Florida and Nevada put the burden on petitioners. States should demand this paper trail before any guardianship order is issued.

• Legislatures should guarantee counsel who argues for the person's wishes. When a respondent had an attorney, according to a Disability Rights Maine analysis, full guardianship orders fell from 76 percent to 56 percent and 33 percent of cases ended with no guardianship, compared with 21 percent of cases without representation.

• Legislatures should write safeguards into law. A supporter can exert undue influence as easily as a guardian can abuse authority. Texas's fiduciary duties and alternate-supporter provisions are a start.

• Medicaid and aging agencies should provide supporters where families are unavailable. States can fund trained community supporters, as Texas did with its 2019 pilot, reaching isolated older adults whom the model otherwise fails.

• Courts should make rights easy to get back. Guardianship should not be one-way. Periodic mandatory review means someone other than the person under the order must justify keeping it in place.

• And court administrators should count what happens. Report, by age, how many adults are under guardianship, how many orders were limited rather than absolute, how many were ended, and which alternatives were tried. Without that baseline, no state knows if anything works.

A state can test itself with three questions: How many older adults are under guardianship? What was tried first? Who argued for the person's wishes? Each is a reporting requirement a legislature can write. Together they ask the real question — not whether an older person is safe, but whose decision it is.

James A. Lomastro is a surveyor for the international Commission on Accreditation of Rehabilitation Facilities, an advocacy associate with Dignity Alliance Massachusetts and a member of the Massachusetts Board of Registration of Nursing Home Administrators.

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When Guardianship Isn’t the Answer for Elderly Americans

U.S. Pays Billions for ‘Assisted Living,’ but What Does It Get?

 A report provides the most detailed look to date at the role of assisted living in Medicaid, one of the nation’s largest health care programs. Credit Nam Y. Huh/Associated Press

WASHINGTON — Federal investigators say they have found huge gaps in the regulation of assisted living facilities, a shortfall that they say has potentially jeopardized the care of hundreds of thousands of people served by the booming industry.

The federal government lacks even basic information about the quality of assisted living services provided to low-income people on Medicaid, the Government Accountability Office, a nonpartisan investigative arm of Congress, says in a report to be issued on Sunday.

Billions of dollars in government spending is flowing to the industry even as it operates under a patchwork of vague standards and limited supervision by federal and state authorities. States reported spending more than $10 billion a year in federal and state funds for assisted living services for more than 330,000 Medicaid beneficiaries, an average of more than $30,000 a person, the Government Accountability Office found in a survey of states.

States are supposed to keep track of cases involving the abuse, neglect, exploitation or unexplained death of Medicaid beneficiaries in assisted living facilities. But, the report said, more than half of the states were unable to provide information on the number or nature of such cases.

Just 22 states were able to provide data on “critical incidents — cases of potential or actual harm.” In one year, those states reported a total of more than 22,900 incidents, including the physical, emotional or sexual abuse of residents.

Many of those people are “particularly vulnerable,” the report said, like older adults and people with physical or intellectual disabilities. More than a third of residents are believed to have Alzheimer’s or other forms of dementia.

The report provides the most detailed look to date at the role of assisted living in Medicaid, one of the nation’s largest health care programs. Titled “Improved Federal Oversight of Beneficiary Health and Welfare Is Needed,” it grew out of a two-year study requested by a bipartisan group of four senators.

Assisted living communities are intended to be a bridge between living at home and living in a nursing home. Residents can live in apartments or houses, with a high degree of independence, but can still receive help managing their medications and performing daily activities like bathing, dressing and eating.

Nothing in the report disputes the fact that some assisted living facilities provide high-quality, compassionate care.

The National Center for Assisted Living, a trade group for providers, said states already had “a robust oversight system” to ensure proper care for residents. In the last two years, it said, several states, including California, Oregon, Rhode Island and Virginia, have adopted laws to enhance licensing requirements and penalties for poor performance.

Senator Susan Collins of Maine was among the bipartisan group of senators who requested the government report. Credit Gabriella Demczuk for The New York Times

But the new report casts a harsh light on federal oversight, concluding that the Centers for Medicare and Medicaid Services has provided “unclear guidance” to states and done little to monitor their use of federal money for assisted living.

As a result, it said, the federal health care agency “cannot ensure states are meeting their commitments to protect the health and welfare of Medicaid beneficiaries receiving assisted living services, potentially jeopardizing their care.”

Congress has not established standards for assisted living facilities comparable to those for nursing homes. In 1987, Congress adopted a law that strengthened the protection of nursing home residents’ rights, imposed dozens of new requirements on homes and specified the services they must provide.

But assisted living facilities have largely escaped such scrutiny even though the Government Accountability Office says the demand for their services is likely to increase because of the aging of the population and increased life expectancy.

That potential has attracted investors. “Don’t miss out on the largest market growth in a generation!” says the website of an Arizona company, which adds that “residential assisted living is the explosive investment opportunity for the next 25 years.”

Carolyn Matthews, a spokeswoman for the company, the Residential Assisted Living Academy, said: “Unfortunately, there has been elderly abuse in this business. We are trying to change the industry so the elderly have better quality care and we are not warehousing them.”

The government report was requested by Senator Susan Collins of Maine, a Republican who is the chairwoman of the Special Committee on Aging; Senator Orrin G. Hatch of Utah, a Republican who is the chairman of the Finance Committee; and two Democratic senators, Claire McCaskill of Missouri and Elizabeth Warren of Massachusetts.

The Trump administration agreed with the auditors’ recommendation that federal officials should clarify the requirement for states to report on the abuse or neglect of people in assisted living facilities. The administration said it was studying whether additional reporting requirements might be needed.

“Although the federal government has comprehensive information on nursing homes providing Medicaid services, not much is known about Medicaid beneficiaries in assisted living facilities,” the report said.

Assisted living was not part of the original Medicaid program, but many states now cover it under waivers intended to encourage “home and community-based services” as an alternative to nursing homes and other institutions.

The report said that assisted living could potentially save money for Medicaid because it generally cost less than nursing home care. Under the most common type of waiver, Medicaid covers assisted living only for people who would be eligible for “an institutional level of care,” in a nursing home or hospital.

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U.S. Pays Billions for ‘Assisted Living,’ but What Does It Get?