In November 2009, my then very independent 88-year-old mother who lived alone in a suburb in another state 1000 miles away, called and said she needed me. I flew there immediately. Two days later, she fell and broke her hip and clavicle. She spent days in the hospital and weeks at a rehab facility. My sister joined us. We talked to her family doctor and it became clear that Mom couldn’t live alone anymore, shouldn’t be driving, and had early signs of dementia. She had been managing because she had lived there for so long, her family doctor said she was on “auto pilot.”
Because she had a Durable Power of Attorney, Health Care Surrogate Designation, Living Will and HIPAA Release, we contacted her attorney to activate them so we could take care of her healthcare needs and finances. We decided to move her to an assisted living facility near my sister’s house, and I soon moved close by. She is 97 now, in a memory care unit and uses a wheelchair but is in good health for her age.
I can only imagine if this had happened and she hadn’t planned on how she wanted us to deal with a situation like this. Anyone who observed her on a more regular basis might have seen that she was in the early state of dementia and taken advantage of the situation by trying to obtain guardianship and wiping her out.
The Seniors Center began exposing the Guardianship-for-Profit Business in February, shortly after The New Yorker published an article about senior citizens whose lives were devastated by for-profit “guardians.” In April, the Senate Special Committee on Aging held hearings on Guardianship Abuse.
What is Guardianship?
Guardianship is where someone petitions the court, alleges that a person is “incapacitated”, or incapable of taking care of himself, and asks the court to appoint him or a third party to take care of the incapacitated person (ward’s) medical and financial affairs. Usually equity or probate courts, which operate under very different rules from criminal courts, oversee this process. There are no fixed definitions of what constitutes “incapacity”, which varies from state to state and can be determined by people who may not be physicians, or committees who collude with each other to come up with a report.
According to Dr. Sam Sugar, author of “Guardianships and the Elderly – The Perfect Crime”, nine common scenarios trigger taking elderly people into guardianships:
- A dispute in the family over taking care of an elderly parent or fear that a sibling or child may have undue influence and try to steal from the parent
- Concern for the dissipation of a parent’s money by a new person in his/her life
- A weapon by an angry spouse
- A family’s honest attempt to get help for a loved one
- A non-family member recognizing the need for assistance
- Intervention of financial institutions who call Adult Financial Protection institutions because of suspected fraud
- Intervention of medical institutions who see vulnerability or abuse
- Family members fearing the loss of their inheritance
- Law enforcement intervention, especially for drug and alcohol abuse.
Richard Black, director of Americans Against Probate Guardianship, tells the story of his father-in-law, Del Mencarelli, who was a victim of a longtime family friend. The friend defrauded his father-in-law out of $1 million and cost Black’s family $400,000 to gain control of Mencarelli and his estate, but in the middle of the court battle, Mencarelli died of neglect. According to Black, families spend an average of 4500,000 fighting these guardianships.
Spider-Man creator Stan Lee, a 95-year-old widower who had a $50+ million estate, was a victim of financial abuse. An LA Court had to issue a temporary restraining order against a man who claimed to be Lee’s caregiver. You can read about other examples here: https://stopguardianabuse.org/victims/
Courts are supposed to monitor guardianships and grant them only to non-family members if there is no family member available to take care of the elderly person, but things don’t always happen that way. In 43% of the cases, guardians failed to meet all court-mandated reporting obligations, including obtaining bonds, filing an inventory of assets in the estate or annual accounting of transactions. According to a recent article in Reuters and the National Association to Stop Guardianship Abuse, “the U.S. Government Accountability Office (GAO) identified hundreds of abuse, neglect, and exploitation by guardians in 45 states and the District of Columbia between 1990 and 2010. The GAO reviewed 20 cases and found that guardians had stolen or otherwise improperly obtained $5.4 million from 158 incapacitated victims, mostly older adults.”
An abusive industry has even arisen where professional, for-profit guardians are appointed by courts, which gives them absolute control over someone’s rights, including living conditions and healthcare. Guardians can transfer the elder’s financial assets, estate, and personal property even if they are in a trust, into their own names. They can limit family members from speaking to or seeing their “wards”. They can charge the estate an hourly rate to grocery shop, make phone calls, open mail or arrange family visits. The judges and lawyers who oversee this process also profit from it and are susceptible to corruption, biases and influence. If the ward dies, guardians can run up huge fees by presenting bills for services, pushing papers and filing motions.
What is Being Done to Fix This?
On April 18, 2018, the Senate Aging Committee recommended enacting state laws to provide less restrictive arrangements than guardianship, such as assisted decision making, for seniors and others with disabilities, requiring telling the individual under care and family members that a guardian has been appointed, what the guardian’s responsibilities are and how to report guardian abuse, and mandating guardians tell the courts when people under their care have become able again to make their own decisions.
Individual states and municipalities are acting to protect elderly people from abuse, including financial and guardianship abuse, with task forces, elder courts, elder justice centers, and training members of the judicial system on elder abuse. In 2010, 10 National Guardianship Network (NGN) networks met at the Third National Guardianship Summit and one of the recommendations called for Working Interdisciplinary Networks of Guardianship Stakeholders (WINGS) to implement the summit recommendations.
What Can You Do to Protect Your Loved One from Guardianship Abuse?
Have a family meeting to discuss how to best protect your loved ones. If they don’t have financial and healthcare powers of attorney, consult an attorney to draft the documents. It is recommended that several people in the family be granted powers of attorney to ensure that if your loved ones become incapacitated, the person(s) they designate can make decisions for them. Keep on top of things and intervene early, because even if elders have advanced directives, wills, durable powers of attorney or trusts, if someone obtains guardianship over them, it can nullify them.
Monitor who your elders are talking to or who is helping them, especially if you do not live nearby. Unsuspecting, lonely elders who may be in frail health may let neighbors, service providers, caregivers or even complete strangers take advantage of them. If they live alone, make daily check-in calls and ask neighbors or friends to check on them. If they suddenly acquire new “friends”, check them out. If a family member is suddenly spending a lot of time with your elderly relative, find out what is going on. It may be someone with a substance abuse or financial problem looking for an easy mark. If this happens, the elder either might not realize what is going on, or report a problem out of embarrassment or fear. Only 1 in 44 cases of elder financial fraud are reported. If you suspect that it is happening to a loved one, report it to the authorities.
PHOTO CREDIT FOR THE FIRST PHOTO: lauramusikanski @ morguefile.com