GAO reports on Guardianship Abuse

When an individual, often a senior, becomes unable to manage his or her finances and personal decisions, and has not created a legal structure for trusted surrogates to take over decision-making (through a power of attorney, health care directive and a trust) a state court may appoint a guardian or conservator (depending on the state law and the powers to be granted) to step in and take care of the incapacitated person.  In most cases, this responsibility falls on a family member who has the relative’s best interest at heart.   These court-appointed guardians are bound by law to act in the best interest of their ward, so even if the responsibility falls upon a person that is not a family member who has the best interest of the ward at heart, the guardian is supposed to behave as if he or she does does.

But, a recently-issued report by the Government Accountability Office (GAO) suggest that this is not always the case.  The report, surveying selected guardianship cases over a twenty year period, disclosed finding instances where family and non-family members alike have been appointed by courts, and subsequently abused or neglected the persons they were appointed to protect.  The GAO identified hundreds of allegations of physical abuse, neglect and financial exploitation by guardians in 45 states and the District of Columbia between 1990 and 2010.

In only 20 selected cases obtained by a random survey, the GAO found that guardians stole or otherwise improperly obtained $5.4 million in assets from 158 incapacitated victims, many of whom were seniors. In some instances, guardians also physically neglected and abused their victims. The guardians in these cases came from diverse professional backgrounds and were overseen by local courts in 15 states and the District of Columbia. Nonetheless, the GAO found several common themes.

Every state has its own rules for choosing when and whom to appoint in this role and for monitoring those who are appointed.  Some states require potential guardians and conservators to be certified and trained, while others do not.  The GAO testers found, however, that notwithstanding these requirements, predatory guardians are approved by local courts.  Even in some states with certification programs, potential guardians with criminal records are able to get through the certification system.  The record of court oversight of the guardian once approved was shockingly ineffective and/or corrupt.

The recurring themes identified by the GAO were inadequate screening, improper oversight, and ineffective communication.  In more than a quarter of the cases, the courts failed to adequately screen potential guardians, appointing individuals with criminal convictions or significant financial problems to manage high-dollar estates. In more than half of the cases, the courts failed to oversee guardians once they were appointed, allowing the abuse of vulnerable seniors and their assets to continue. Finally, in a  majority of the cases, courts and federal agencies did not communicate effectively or at all with each other about abusive guardians, allowing the guardian to continue the abuse of the victim and/or others once it was discovered!

The problem of abusive guardians is not new, and neither is the government’s awareness of the problem.  The United States Senate Special Committee on Aging, for example, conducted hearings in 2003 regarding guardianship, leading to the publication of its report entitled, “Guardianship Over the Elderly: Security Provided or Freedoms Denied?”  Introducing the matter, Senator Larry Craig warned:

When full guardianship is imposed, the elderly no longer have the right to get married, vote in elections, enter into contracts, make medical decisions, manage finances, or buy and sell property.  They cannot even make decisions on where they want to live. All these rights are taken away from the elderly and vested in a surrogate decision maker—the guardian.  Our investigation has confirmed that some guardianships can have onerous effects on the elderly. For example, guardianship may drain the elder’s estate, result in protracted legal proceedings, and substitute the judgment of a total stranger for those of the elder and their family.  A recent case has come to my attention where a court actually terminated a marriage pursuant to a guardianship.

Attorney Michael S. Kutzin, testifying before the committee, explained that the goals of current guardianship laws are simply not attained:

Guardianship statutes generally recite lofty principles of honoring the wishes of an incapacitated person where possible and call for a myriad  of protections of due process rights. In addition, so called modern guardianship statutes...call for judges to provide flexible solutions to meet the needs of an incapacitated person, such as limited guardianships, and to honor the senior’s wishes regarding whom she wants to care for her.  In practice, however, once a guardianship proceeding is brought against someone, machinery begins that often presumes that a guardianship is required and runs roughshod over the wishes of the senior and his or her family. This is particularly true...[when] the proceeding is commenced by a hospital or nursing home, and family members live in another State. A similar disregard for the wishes of the senior and her family often occurs where the senior has significant assets.

Diane G. Armstrong, an author and advocate for the elderly agreed:

States designate these proceedings a ‘nonadversarial’ in nature, brought out of the goodness of the petitioner’s heart to help an elderly person in distress. It is a powerful term, and it is almost always incorrect. These are court battles fought over money, power, and control. Sadly, the elderly lose almost 94 percent of the time, often in proceedings that take only 4 minutes. Their cases are rarely appealed.

She continued:

When an elderly individual is brought into court and forced to prove his or her competence, we soon see that the system does not work. We have a system rife with court-sanctioned elder abuse.  Why? Judges override protections that have been put in place in the codes. It happens every day. Judges disregard durable powers of attorney—the single most important document each of us can create to determine our care should we become incapacitated. We have seen the health care proxy overturned....Judges ignore our lists of preselected surrogate decision makers. The current system does not work. This reality is most apparent when a wealthy individual falls victim to these involuntary proceedings and his or her wealth becomes a ripe plum to be shared by the judge’s favorites.

She explained in stark terms the cost of these battles:

Families are destroyed by these proceedings. The hundreds of thousands of unfortunate men and women who have been placed in the velvet handcuffs of contested conservatorships and  guardianships in America are without hope. Their conservatorships and guardianships end only when they die—or when the system spends their assets down to $10,000 or less and spits the wads out into a harsh world of poverty. Sibling battles rooted in issues of inheritance and control, social welfare petitions driven by hidden agendas of power and control, nursing homes that quietly require financial guarantees, and court actions that create the very abuse they are tasked to address—our country’s involuntary conservatorship and guardianship system is out of control. It is no longer a morally permissible option.

Notwithstanding that every witness who testified before the United States Special Committee on Aging in 2003 agreed that the guardianship system was failing seniors, little has been done.  Senator Gordon Smith appropriately assessed the situation in 2006, when he, on behalf of the Senate Special Committee on Aging, again opened hearings regarding the threat of abusive guardianships (resulting in yet another report, entitled, “Exploitation of Seniors: America’s Ailing Guardianship System”):

Horror stories abound in the press regarding the plundering of assets, physical neglect, and the indignity with which elderly wards have been treated by their guardians. As we have learned... no matter your age, finances or social status, none of us in this room today are beyond potential abuse or neglect and any one of us at any time could become incapacitated and in need of assistance.  We are here today because, sadly, after 20 years of congressional hearings on elder abuse, most State guardianship systems are still failing vulnerable seniors

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According to a recent L.A. Times series, there are approximately 500 professional conservators in California overseeing more than $1.5 billion in assets, and these conservators are subject to less regulation and oversight than a hairdresser or a guide dog trainer.  Although States have made recent legislative strides to reform guardianship laws and ensure better oversight, experts feel there has been little progress when it comes to actual court practice.

Terry W. Hammond, Executive Director of the National Guardianship Association agreed, warning:

By failing to engage in proper estate planning, elderly Americans may find themselves before a guardianship court with a loved on or third party seeking appointment as guardian.  If a qualified physician indicates that there is a medical necessity for guardianship, the court may appoint a guardian, even over the objection of the elderly person.

Seniors made vulnerable by the lack of, or improper, estate planning is a huge problem.  If you are a senior or are a caregiver or family member of a senior, you should educate yourself regarding this vulnerability, and enact proper safeguards.  For more information, please consider the following:

“Does Your Trust Discourage Guardianship? Most Don't Do Enough!” 

“Powers of Attorney Fail to Prevent Guardianship”

National Association to Stop Guardianship Abuse

National Organization to End Guardianship Abuse