The U.S. Guardianship System and Its Hidden Traps for Elderly Americans
In any personal abuse case involving injury, medical records review is vital. Here we look at the Guardianship system and its potential for abuse.
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The number of Americans with cognitive impairments such as dementia and Alzheimer’s disease is increasing with increase in the number of seniors. As a result, there is a proportionate increase in the demand for guardianship on behalf of seniors who are incapacitated. Unfortunately, this legal tool that vests one person with the authority to make personal and/or property decisions for another, is being abused shockingly. There are occasions when guardians engage in unethical behavior, which can take the form of financial manipulation as well as physical or psychological abuse. Disabled and debilitated seniors under the protection of guardians face both financial and mental issues. As in any abuse case, medical records review is an important consideration in these elder abuse cases to prove any physical or mental injury the elderly person may have suffered. Personal injury lawyers across the country are greatly concerned about the increasing occurrences of elder abuse and reports of the failure of courts and the states to prevent exploitation of incapacitated adults by their guardians. The Concept of Guardianship Guardianship is a relationship created by state law wherein a court gives one person/entity (guardian) the duty and power to make personal and/or property decisions for another (ward). It is defined by state laws that vary from one state to another. ➢ Guardian of the Person is a guardian who has some or all power with regard to the personal affairs (health and welfare) of the individual. ➢ Guardian of the Estate is a guardian who has some or all powers with regard to the real and personal property of the individual (often referred to as conservators or fiduciaries). ➢ In many cases, the Guardian of the Person and the Guardian of the Estate is the same person. The guardian of an adult has the following rights: ➢ Make decisions the person is incapable of making for himself/herself/, and give consents he/she is unable to give. ➢ Act as an advocate for the adult’s best interests. ➢ Exercise rights on behalf of the adult that the adult is not able to exercise on his/her own. ➢ Take action to protect the adult from abuse, self-neglect, financial exploitation and violation of rights.
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Guardianship, which was introduced as an appropriate and beneficial law has now evolved into one which, if misused can be highly damaging for the general public. The danger is that now this law operates to trap vulnerable people in an inescapable net, including those who are only physically disabled but have strong and healthy mental capabilities. In this kind of victimization, strangers assume total and absolute control of the liberty, life, and property of their wards. Wards of the state lose rights such as: ➢ The right to control their assets and make independent financial decisions ➢ The right to contract, including the right to choose a lawyer for themselves ➢ The right to protect and enjoy their personal property ➢ The right to stay in their own home and protect it from sale ➢ The right to accept or refuse medical treatment, including antipsychotic drugs ➢ The right to assure prompt payments of liabilities and taxes ➢ The right to decide their contacts and social environments ➢ The rights to drive, marry, complain, and vote. Guardianship – a Beneficial System Shockingly Abused A 2013 report from the American Association of Retired Persons (AARP) places the number of adults under guardianship nationally at 1.5 million. The only states that track the amount of money controlled by guardians are Idaho and Minnesota, and the combined total for just those two states is more than $1 billion. The U.S. Government Accountability Office (GAO) has identified hundreds of allegations of physical abuse, financial exploitation and neglect by guardians in 45 states and the District of Columbia during the period 1990 – 2010. In 20 of those cases, it was found that the guardians stole or inappropriately obtained $5.4 million in assets from their wards. Elder abuse remains a “hidden” crime in the justice system and there are certain reasons for this. ➢ It is estimated that when one case of elder abuse is reported to authorities, 5 go unreported. ➢ Capacity issues of some older adults may confound the ability to prosecute a case. ➢ In most jurisdictions, cases are rarely prosecuted on specific charges of elder or incapacitated adult abuse, because of lack of specialization, challenges involved in proving vulnerability and narrow legal definitions. ➢ Often, perpetrators are family members and spouses or partners, which may prevent victims from reporting the crime.
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Unfortunately, “incapacitated” persons or wards rarely succeed in getting a guardianship or conservatorship terminated until death. A person who is found “incapacitated” by a judge may not even get an attorney. The April Parks Case – a Typical Guardian Abuse Example A grim picture of the issues related to the U.S. public guardianship system was revealed in a recent New Yorker article “How the Elderly lose Their Rights.” Here we are given an insight into the terrible experiences a Nevada couple had to endure under the control of their public guardian April Parks. They lost their home and freedom and were shifted form one assisted living facility to another, and medicated. Ms. Parks who was the guardian for hundreds of wards, took over their lives, sold their belongings, and charged their estates hundreds of dollars. She built relationships with medical providers and hospitals to refer patients to her. She found doctors who were willing to declare their patients incompetent. The Nevada couple’s daughter notified the media following which Ms. Parks was ultimatelyremoved from the case. She, her lawyer, her office manager, and her husband were indicted for perjury and theft, among other charges. The indictment was focused on their slipshod accounting and double billings, but authorities from the Nevada Attorney General’s office made passing mentions of the “collusion of hospital social workers and medical staff,” who benefited from their connection to Parks. She had contracted with six medical facilities whose staff agreed to refer patients to her. Parks frequently gave doctors blank certificates and told them what exactly to write so that their patients could become her wards. Why Guardian Abuse Is Rampant According to a survey on state guardianship laws and practices conducted in 2014, 40% of the 1000 respondents (that included judges, court staff and guardians from around the country) said that criminal background checks were not required of non-professional guardians of an estate. 60% of respondents said they did not need a credit check or a financial background check on a prospective guardian. ➢ Observers in the field say that courts are not set up well to monitor guardians, but mainly to start a process, get it finished, and deliver a decision. ➢ Funding is highlighted as a major part of the problem. ➢ Courts that are responsible for monitoring often don’t have anybody who can effectively act as a court visitor, audit cases and review accounting. ➢ Leading lawyers point out that there aren’t enough judges who understand what to do and how to do it.
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➢ There is a shortfall of volunteers to do the work, and not enough money to pay those who can do it on a compensatory basis. Towards Reforms Reforms are gradually taking shape to address this grave problem, which is a good sign. ➢ The ten National Guardianship Network (NGN) sponsoring organizations convened the Third National Guardianship Summit at the University of Utah in 2011, and among their recommendations was the call for WINGS (Working Interdisciplinary Networks of Guardianship Stakeholders) to advance adult guardianship reform and implement the summit recommendations. ➢ Supreme Court task forces have emerged to address issues surrounding elder abuse and guardianships at the state level. Pennsylvania and Texas are the two most recent states to have launched elder law task forces. ➢ Coming to the local level, judicial leaders in many jurisdictions have launched elder courts and elder justice centers. •
In 2002, Judge Julie Conger started the first elder protection court in the Superior Court of California, Alameda County.
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Judge Joyce Cram helped develop an elder protection court in Contra Costa County, California
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The most recently created elder court and elder justice center is in Cook County, Illinois, and functions under the guidance of Judge Patricia Banks.
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Florida’s governor signed a law in March 2016 creating an Office of Public and Professional Guardians that is required to create standard practices and rules for public guardians.
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Recently Congress passed a bipartisan bill that empowers federal officials to investigate
and
prosecute
unscrupulous
guardians
and
conservators
appointed by state courtsand sent it to the President. These courts demonstrate best practices for managing elder abuse cases and integrating the missions and resources of all stakeholders to ensure more comprehensive and appropriate solutions for older victims.Nevada, over the past 2 years, has been striving to reform its guardianship system through a commission appointed by the Nevada Supreme Court, to study failures in oversight of court-appointed guardians. The Nevada legislature will enact a new law in 2018 that entitles all wards to be represented by lawyers in court.
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As seen above, elder abuse involves financial exploitation as well as physical and mental abuse. States should take more proactive steps to prevent guardian abuse of the elderly, vulnerable segment of the American population. The need of the day is to understand the roots of this vicious problem to eradicate it, and also be conscious of a group of elderly, ill people who are being deprived of their independence and taken away from their families at the tail end of their lives. On the part of the victims and their loved ones, the best course of action is to obtain a power of attorney that allows you to appoint a person you can trust to act in your place for financial purposes when and if you ever become incapacitated. A power of attorney could reduce the need for a guardian.
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