At face value, senior guardianship is a great concept with the wellbeing of seniors in mind. It’s a legal ruling appointing an individual as guardian for those experiencing physical or cognitive health problems.
This guardian is expected to do everything necessary to assist and maintain a healthy, safe lifestyle for whom he’s appointed to care, including taking care of their physical, mental, medicinal and financial needs. This is strictly meant for situations where an individual is unable to care for herself and would have a better quality of life if someone made decisions on her behalf.
A number of entities can petition the courts for appointment of a senior guardian. The senior herself could request the courts for a guardian or even her spouse, partner, friend, or relative.
There are several advantages that such a system brings. The senior’s children might live too far away to provide regular care. Appointing a guardian would provide constant support that these children may not be able to provide themselves.
Senior guardianship can also provide a secure support system for ad-hoc requirements, of both medical and non-medical nature. With the kind of nuclear family life that we now see, the sheltering umbrella of a house full of aunts and uncles, cousins and siblings is no longer available to many of us. A guardianship for parents who want their independence from children or who stay too far away for the children to be present at all times could be a godsend.
If truly enacted in the best interests of the senior, the guardianship system is a very useful thing that could improve the quality of life for many older Americans.
But the reality of senior guardianship is far from that ideal.
This well-intentioned law is often mercilessly exploited to line the pockets of guardians at the expense of the senior they’ve promised to protect. Most concerning are the requests that come from other agencies–not the individual or their family and friends–petitioning the courts to obtain an order for guardianship.
The crux of the concern is financial misappropriation might be the driving factor in someone taking over senior guardianship. Many seniors manage to save a tidy sum at the time of their retirement, and it’s this nest egg that’s often the target of those who claim to be a care-giving guardian for the senior. These guardians are given almost unlimited rights to make all financial decisions. They can even sell off property and other assets and keep the proceeds.
That is the magnet that attracts these so-called guardians to the frail and elderly. There are countless horror stories about guardians have stripping their wards of dignity, their physical and mental well-being, and their assets, leaving them in a worse state than when they took over guardianship.
When even family members don’t think twice about stabbing a relative in the back to gain financially, how much trust could one place on third parties that they will act only in the best interests of their wards?
And when it comes to determining who is and is not in need of a guardian, courts often rely on the word of “friends,” “family,” and those seeking to gain guardianship of an individual to make a guardianship determination.
At a certain age, a little bit of memory lapse and physical weakness are natural. But what if an unscrupulous agent uses these natural symptoms of aging against us to gain control of our lives, our belongings, and our finances? There have been far too many cases of seniors who have been diagnosed unfit to care for themselves based on the creative interpretation of these symptoms by an enterprising abuser.
So what happens when a predator successfully achieves guardianship over a senior victim?
Summarily handed a court order for guardianship, victims are asked to move at very short notice to places chosen by those guardians. Those places may seem to have several amenities, but they snatch away the independence and self-respect of the seniors placed there.
Their lifestyle is changed to fit in with the guardian’s schedule, their medications may be changed to their detriment, and contact with their children and other family members could be strictly regulated to prevent the victim’s family or loved ones from sniffing out the abuse–and to keep the victim totally dependent on the abuser.
Some of the biggest blows victims receive are on the financial front. The court order allows the guardian to charge their fees from the estates of the wards, allowing bad guardians to make excessive additions to their “fees” and withdrawal unseemly amounts of money from the victim’s estate. They’ve even been known to bill their victims for telephone calls or face-to-face conversations as extra “patient care.” The victim’s assets are often sold off under the guise of taking care of the financial interests of the ward.
Sometimes senior guardianship is a ruse used by family members to wrest control of the victim’s finances. Family disputes have long been a part of our society, and senior guardianship sadly provides the perfect tool for families to settle personal scores or usurp financial control of properties and assets.
Do the family of the ward or the wards themselves have any recourse to correct these wrongs, either legal or otherwise? In theory, yes. But courts generally tend to take the view that the guardian appointment is the last recourse, and any change from that arrangement would be to the detriment of the ward.
So, an appeal usually has the opposite effect, and instead of agreeing to revoke the senior guardian, the courts usually ask the sheriff or a similar authority figure to take steps to ensure that the legal guardian is given all access and cooperation.
Thankfully there are many organizations pooling their resources to fight this often unjust system., involving citizens, activists, and judges working to ensure senior guardianships are not awarded under false pretenses.
But it’s an uphill battle. The guardianship industry is well entrenched, and with so many people involved in the process–judges, advocates, medical practitioners, special care professionals, pathological labs, even law enforcement agencies–there’s a lot of room for abuse and plenty of places for someone with an impactful role in influencing a judge’s decision to drop the ball.
Personal bias, complete misinterpretation of a senior’s behaviors, or a failure to recognize the signs of a potentially exploitative situation can and do occur at every level of diagnosing and determining a person’s need for a guardianship.
The situation can sound hopeless, but all is not lost yet. There are ways this type of abuse can be controlled, if not uprooted altogether. There are three ways to combat guardianship exploitation: judicial activism, proactive documentary awareness, and family support.
Judiciary awareness: A special set of judges are appointed for deciding guardianship cases. These judges get elected to office and are re-elected at the end of their term–and one need not look far for information about how their judges handle cases like these.
It’s the responsibility of each state’s citizens to be aware of who their judges are and what their reputations may be regarding issues of senior guardianship (and any issue, for that matter). Ultimately, these judges are beholden to all of us to exercise their authority in a satisfactory manner.
Should a judge be lacking in their duties to suss out predators and issue fair rulings on matters related to seniors, no one who believes in protecting the rights of seniors should ever be willing to vote for him. Stay involved, stay aware, and be willing to exercise your rights to ensure those charged with making serious decisions for citizens in your state are the right candidates for the job.
Documentary awareness: Several organizations are pushing their senators and judiciary to do away with state laws allowing unlimited rights to senior guardians. But that’s like trying to correct a wrong already done.
There are some things that an individual can choose to do in advance before he may need a senior guardian. That includes several documents that the he can have created prior to the onset of any health problems. A basic will specifying all the assets and how they are to be distributed after death can also contain certain clauses regarding who would be authorized to take financial and other decisions even before death.
There are documents like medical power of attorney, joint ownership of assets, trust funds, and even documents that can safeguard the passwords for important files or for computers and phones. The individual could also enter into a written agreement to co-opt someone whom he trusts to provide supported decision-making for important issues.
Like a medical power of attorney, an agreement could also be entered into to designate a particular person for geriatric care.
But the difference between these documents and the senior guardianship granted by courts is the guardianship is often granted ex-parte (in the absence of the ward), whereas these other documents are initiated by the individual himself, so they can’t be imposed on the individual by a court.
Family support: As with any senior abuse, the whole family should stand united to protect itself against unwanted senior guardianship rulings.
People should be not only visiting their parents often, but must be documented doing so. Records must be created of their visits or by having witnesses while visiting. Any doctor visit for any of the usual age-related problems should be made in the company of children or other relatives, and careful attention must be paid to what the doctor is writing in his diagnosis or prescription.
Any kind of loose talk in front of third parties (like “my Dad really seems to be losing it,” for example) should be avoided–off-the-cuff remarks made in jest have been quoted out of context in guardianship courtrooms to prove that a senior really needs help.
As long as the judges and all the authorities in this vicious cycle continue to turn their heads the other way, seniors will continue to live under the threat of losing their good health, mental peace, and financial freedom to the guardianship industry.
While this lobby seems to have spread its tentacles well and truly around our society, there is light ahead. Awareness of this legal loot is increasing, and people are waking up to the dangers of the senior guardianship system. It’s incumbent on us, who have understood the real face of senior guardianship, to educate others who still labor under the impression of its benefits to older Americans.