“Guardianships are a legal relationship created by state courts that give one person the authority to make decisions in the best interest of someone judged to be incapacitated—and when no family member or friend is available to assume the role.”
A recent article in Reuters shows the problems in Nevada courts that are responsible for court-appointed guardians for the elderly. This article describes how a private guardian was able to obtain a court order making her the guardian of a couple with no advance notice to them or to their adult daughter. The elderly couple saw all of their assets sold and they were shipped off to a nursing home.
Reuters’ recent article, “With U.S. elder abuse in spotlight, a look at guardians,” reports that the abuses of private-guardian systems in some states have been known by policy and legal experts for years.
When a case involves low-income people, a public guardian typically is appointed, and private guardians are assigned when people have financial assets. A 2010 report by the U.S. Government Accountability Office (GAO) identified hundreds of allegations of abuse, neglect and exploitation by guardians in forty-five states and DC between 1990 and 2010. The GAO reviewed 20 cases and found that guardians had stolen or otherwise improperly taken $5.4 million from 158 incapacitated victims, many of whom were older adults.
Problems with abusive guardianship systems have also been reported in Arizona, Florida, and New Mexico. Reform will require commitment by the states to use more oversight in the selection, training, and monitoring of guardians. Without significant reforms, the problem will grow as the country ages.
Many experts argue that more thoughtful oversight and accountability of guardians is needed. In situations where a judge isn’t concerned about a single guardian or one guardianship organization, they can allow guardians to take hundreds of people under their control. Where money and incapacity are an issue, there is always a risk of abuse without checks and balances.
There are two general legal requirements that must be satisfied before a court will appoint a guardian: (1) there must be a finding of incapacity; and (2) there must be a court determination that there’s a need for a guardian (no one has already been designated by the person in question to act as his or her agent or trustee before they became disabled).
To protect yourself against possible abuses, work with an experienced estate planning attorney to plan in advance and execute legal power-of-attorney documents for your finances and healthcare. Choose a person who you trust to manage your affairs, in the event you are unable to do so. You can also use a bank or trust company as a professional trustee when they establish trusts for clients.
Reference: Reuters (October 20, 2017) “With U.S. elder abuse in spotlight, a look at guardians”