Conservatorship and Guardianship Abuse Awareness Day

February 1st is "Conservatorship and Guardianship Abuse Awareness Day," a day to raise awareness about the potential abuses of power that can occur within the guardianship system.

Adult guardianship is an intervention, intended to be a tool of last resort, that can transfer most of an adult’s fundamental rights to another person, usually called a guardian or conservator. Courts appoint guardians to protect adults from abuse, neglect, and exploitation when the adult’s cognitive and physical capabilities are impaired by disability or illness. 

In some cases, however, the court process is and guardians themselves are abusive, trampling over a person's rights, and often subjecting that person to the very risks appointment of a guardian is supposed to prevent.  Guardianship abuse (utilizing or threatening to utilize the guardianship system to control or compel a senior) and  abusive guardians (guardians that threaten the physical and financial well-being of a senior) are common villains in stories of helpless seniors institutionalized against their will.  Many of these stories are curated by the National Association to Stop Guardian Abuse (NAGA).  The recent, high-profile case of Britney Spears has served to focus national attention on this type of abuse of power. There are still many other cases, however, particularly involving older adults that go unnoticed, unpublished, and unaccounted for in the modern legal, health care, and social system that struggles with, and sometimes against, reform. 

The National Center on Law and Elder Rights (NCLER) provides legal services and aging and disability communities with the tools and resources to serve older adults with the greatest economic and social needs. A centralized, one-stop shop for legal assistance, NCLER provides Legal Training, Case Consultations, and Technical Assistance on Legal Systems Development. Justice in Aging administers NCLER through a contract with the Administration for Community Living’s Administration on Aging. Lawyers, families, and aging service professionals can utilize NCLER and partner resources to learn more about guardianship abuse, how to spot it, how to avoid unnecessary guardianships in the first place, and how to terminate abusive or unnecessary guardianships as soon as possible.

NCLER has published the following resources and a toolkit.

• NCLER: Legal Basic: Overview of Guardianship and Alternatives to Guardianship (Recording, Chapter Summary, PowerPoint)
• NCLER: When the Guardian is an Abuser (Webcast, Issue Brief and Checklist)
• NCLER: Elder Justice Toolkit
• NCLER: Using Decision Supports to Avoid Guardianship (Recording, Chapter Summary, PowerPoint)
• NCLER: Using Alternatives to Guardianship to Defend Against or Terminate Guardianship (Recording, Chapter Summary, PowerPoint)
• NCLER: Guardianship Termination and Restoration of Rights (Recording, Chapter Summary, PowerPoint)
• National Center on Elder Abuse: Guardianship: Remedy vs. Enabler of Elder Abuse

This blog contains several articles addressing the risk of guardianship in estate planning, including, but not limited to, the following: 

• Guardian Lawfully Refused Family's Request to Remove Ward from Nursing Home Amidst Pandemic;
• Guardianship System Leaves Most Vulnerable Unprotected;
• GAO reports on Guardianship Abuse;
• Hospitals Cause or Facilitate Abusive Guardianships;
• Guardianship Reform Helps, but Planning Shouldn't Wait;
• Contesting Guardianship or Challenging Guardians Is Problematic;
• Estate Plans Should Consider and Attempt to Resolve Guardianship;
• Illinois Permits Guardian Authority to Petition for Termination of a Ward's Marriage;
• Why One Woman Has Spent 5 Years in a San Diego County Jail With No Trial, and Why it Matters.

Guardianship is a risk that is best managed by a modern estate plan.  Most importantly, it is possible, with a revocable trust, to keep the trust assets out of the control of a court-appointed guardian.  Such planning protects your rights, decisions, and decision-making, protects a healthy spouse from abuse, conserves and protects the assets of the estate from plunder, and most importantly serves to disincentive court-appointed fiduciaries like guardians.  If this type of planning interests you, call an estate planning attorney experienced with trusts or an elderlaw attorney.