Second of three parts.
Much of it starts with greed, said Bernard A. Krooks, founding partner of the New York law firm Littman Krooks.
Most of us don’t think we would ever end up in a nursing home against our will. We can’t imagine having our hard-earned savings drained by someone assigned to take care of us. We would never believe that we might someday be kept away from the people we love the most.
But those are the kinds of nightmares suffered every day by some of the estimated 1 million to 2 million people who have been placed under guardianship or conservatorship in the United States.
Ordered by a judge, a guardianship or conservatorship is ideally a protection for older adults. But too often, it is a drastic measure often prompted by warring relatives, nursing homes that want to
Plan Ahead to Avoid
Guardianship Abuse
The key to avoiding an abusive guardianship — which is likely to be extremely difficult to escape from if it happens — is to plan ahead. Naomi Karp, senior policy advisor at the Office of Older Americans of the Consumer Financial Protection Bureau in Washington, D.C., and other experts advise taking the following steps (you can find a list of resources at the end of this article):
*Create a durable power of attorney for finances. This is a document in which you name a person to make decisions for you if you cannot. (A regular, or “nondurable” power of attorney ends if you lose mental capacity.) For instance, if you are severely injured in a car accident or incapacitated by a stroke, your “agent” or “attorney-in-fact” will be able to sign financial documents, pay bills and buy things you need.
*Create a durable power of attorney for medical care. With this document, also referred to as an advance directive, you designate a trusted person to make health care decisions for you if you cannot. The “agent” or “health care proxy” can get access to your medical records, talk to doctors about your condition, make decisions about getting you into a hospital or nursing home and grant or withhold permission for tests and treatments.
*Think carefully about whom you appoint as your agent. Said Karp: “You want someone who has common sense and good judgment. You clearly don’t want to appoint someone who has had money problems,” because that person won’t be able to manage yours if he or she has a bad history managing finances.
*Make sure your prospective agent agrees, and give that person the necessary information to do the job. One excellent resource: a series of guides from the Consumer Financial Protection Bureau on “Managing Someone Else’s Money.”
*Build in a safety mechanism. “I like to say, ‘Trust, but verify,’” Karp said. You can require in your financial power of attorney document that the person you appoint provide a periodic accounting with a third person you trust, she said, “another set of eyes.”
*Revoke the document if you change your mind. If you decide the person you chose is no longer appropriate or cannot serve for some reason, you can revoke the original power of attorney and draft a new one naming a different person.
*Don’t put it off. Set aside some time for getting these documents filled out, or make an appointment with an attorney. If you plan to have an attorney draft a will, that’s the perfect time to ask him or her to complete the power of attorney forms as well.
Karp acknowledged that this is an unpleasant topic. “A lot of people just avoid the planning and avoid discussing it in their families,” she said. But not only does preparing help you protect your interests, it saves your loved ones from confusion, complicated paperwork and heart-wrenching decisions.
For more helpful resources, read “How to Protect Yourself or a Loved One From an Abusive Guardianship” at PBS’ “Next Avenue” website.
--Emily Gurnon
get paid, or a “friend” who gains the trust of an older adult in order to take advantage of him or her. It’s based on a legal determination that the person is “incapacitated” and needs someone else to make decisions.
‘The Ugliest Family Cases’
“We’re seeing [relatives] initiate ‘will contests’ while the person is still alive — I think that’s what a lot of these contested guardianships come down to,” Krooks said. In those cases, what may be argued is not whether there should be a guardian but who it should be.
Brenda Uekert, principal court-research consultant with the National Center for State Courts, agreed. “Some of these cases are the ugliest family cases you can imagine. Some of them make child custody cases seem like a cake walk… somebody who did not get access to Mom and Dad’s money (against) someone who did,” she said.
The petitioner — the person or institution asking a court for the guardianship — can be a relative or a nursing home or a hospital. The judge may appoint any of those — or name a professional guardian (if the ward has assets) or a public guardian (if a ward has no money).
Catherine Seal, a Colorado attorney who has worked in elder law for 20 years and been involved in guardianship reform, said state laws on the issue vary greatly.
However, Seal noted, “Even in the states with the most sophisticated statutes, you still have court hearings that happen ex parte, which means that nobody gets to be there other than the petitioner.”
She said she had a recent case in which a judge signed an initial order appointing an emergency guardian without any hearing and without the required affidavits swearing to the allegations in the petition.
“I represented the respondent, and I went into court as soon as I could, and we got the thing dismissed — because the court didn’t have the necessary information,” Seal said. She added that her client had the means to pay for an attorney, but most don’t.
Where Courts Fall Short
A 2014 survey of state guardianship laws and court practices commissioned by the Administrative Conference of the United States found that almost 40 percent of the 1,000 respondents said criminal background checks were not required of an estate’s nonprofessional guardians.
Six in 10 of the survey participants--including judges, court staff and guardians--said they did not require a credit or financial background check on a prospective guardian. But a background check could alert a judge to the potential for abuse once the guardian or conservator has control of someone’s assets.
Seal said judges should require guardians to get a bond so the protected person can be “made whole” in the event of misuse or fraud.
If a financial institution refuses to issue the bond, that’s a red flag. “If you’re not a good financial risk, you shouldn’t be in charge of the money,” she said.
Seal and other experts said that once guardianships or conservatorships are established, monitoring of those ongoing relationships often falls short.
“Courts are not set up well to monitor guardians,” but rather to initiate a process, get it finished and deliver a decision, Seal said.
Uekert agreed with others that an enormous part of the problem is funding.
“Everything is contingent on the courts trying to do this out of budgets that the state legislatures don’t want to support,” she said. “If the court is responsible for monitoring and doesn’t have anybody who can effectively act as a court visitor, audit cases or review accounting, to what extent can a court monitor?”
Judges and attorneys — especially those in rural counties who deal only rarely with guardianships — may be uninformed or impervious to changes in the law.
Jennifer Wright, who directs the Elder Law Practice Group at the University of St. Thomas School of Law in Minneapolis, recalled a case in her early years of practicing elder law in Oregon. She was representing someone in a contested guardianship, and at one point objected to part of the proceeding. “The judge said on the record, ‘Well, I don’t pay much attention to the rules of evidence or civil procedure in cases like this.’ So the judge has just told me outright that he doesn’t obey the law — what am I going to do now?”
How The Situation Is Improving
Experts who have been involved in the guardianship arena for decades said that, even with all the problems, the situation has improved.
In those early days of her practice, Wright said it was a different world. “There was almost no due process at all. And not only that, there was almost no perception that due process was important,” she said. A large proportion of guardianships were done by default — meaning that as long as the petitioner showed the proposed ward had been notified, that was all that needed to happen.
“No hearing, no inquiries as to why they didn’t respond or whether they were trying to figure out how to,” Wright said. “And that was considered perfectly fine.”
The attitude was, we’re doing something nice for these people, she said. Everyone has good intentions. But even when they do, Wright went on, the ward can be harmed.
That continues to happen far too often, said Alison Hirschel, director of the Michigan Elder Justice Initiative and the elder law specialist at the Michigan Poverty Law Program.
Laws may be enacted and refined, but changes fail to materialize in the courtrooms where guardianships are decided.
In Michigan, she said, the law as written is very good. “The problem is what happens in probate law practice. If a petition is filed against someone, it’s extraordinarily likely that that petition will be granted.
Individuals are very frequently not represented in these hearings — they’re very frequently not even present at these hearings, so the judge doesn’t even see them,” said Hirschel, who also teaches elder law at the University of Michigan Law School.
Even when there are caring relatives, or services in the community to help older adults remain in their homes, “guardianship is like a pipeline to the nursing home,” Hirschel said. “And they never get out.”
A Way Out?
One way you can protect yourself against becoming a victim of guardianship abuse: Get a durable power of attorney and a health care advance directive. These documents can help keep the determination of your future out of a courtroom.
Attorneys and advocates for older adults urge them to fill out such paperwork before they suddenly need it. After the fact, it’s probably too late.
Those documents don’t guarantee that you won’t be exploited; the key is to give the responsibility for your welfare to the right person. But if done wisely, a great deal of heartache and expense may be avoided.
Why don’t more people take proper steps to be prepared?
“Everybody is in complete denial,” said Seal. “Just like nobody’s going to go in a nursing home. We’re all going to live forever, very healthy — like on the commercials — or we’re going to die in our sleep after a game of tennis.
“If any one of us were to consider the fact that we might be the subject of a guardianship case, we would all be very unhappy with the system as it actually exists now,” Seal continued. “No one would want to be a party to this.”
For information on guardianships and efforts against abuse, check these websites:
• "Guardianship/Conservatorship Resource Guide" from the National Center for State Courts
• National Center on Elder Abuse
• National Guardianship Association
• Center for Guardianship Certification
• National Association to Stop Guardian Abuse
If you or a loved one is being abused, call your local adult protective services agency; you can find the appropriate contact for your area at www.eldercare.gov or call 800-677-1116.
This series is adapted from a longer version by Emily Gurnon for PBS Next Avenue, where she is Health and Caregiving Editor. The projects had support from the Journalists in Aging Fellows Program of New America Media and the Gerontological Society of America, sponsored by the Retirement Research Foundation.