November 11, 2020

It's Complicated: The Relationship Between Advance Planning, Guardianship and Elder Abuse

The pdf for the issue in which this article appears is available for download: Bifocal, Vol. 42, Issue 2.

The relationship between advance planning, guardianship and elder abuse is complicated.  Experience tells us that careful advance planning can avoid the need for most guardianships. But many people fail to plan and plans sometimes fail. Guardianship is sometimes the only legal tool to intervene in cases of abuse, neglect or exploitation. However, guardians sometimes commit abuse, neglect or exploitation.  You can’t touch any of these issues, without thinking about the others.   

The first court case that I filed after being sworn into the bar, was seeking appointment of a guardian of a person with dementia who was being financially exploited by a family member who had control of her finances using joint accounts and a power of attorney.  The person with dementia lacked capacity to revoke the power of attorney or change her banking arrangements and was at risk of being evicted.  She had attempted to plan, adding a family member to her bank accounts, setting up direct deposit, and signing a power of attorney. Her plans failed, because the person she trusted, betrayed her trust and put his wants ahead of her needs.  

Careful advance planning, if everyone does what is expected of them, avoids the need for guardianship.

Careful advance planning, if everyone does what is expected of them, avoids the need for guardianship.

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Guardianship or Conservatorship

Traditionally guardianship was of the person, and conservatorship was over money and property.  By statute many states now use guardianship for both the person and property, one state uses conservatorship for both person and property, some states maintain the common law distinction, or allow other mixes of the two.  For simplicity I will use guardianship to refer to any Court appointed fiduciary responsible for personal or financial decisions.  Always double check the correct legal term in the state the Court order is in. 

Advance Planning to Avoid Guardianship

As attorneys we should urge all our clients to make plans while they have capacity, for the time when they might not.  The core legal planning tools of appointing an agent in a Power of Attorney, assuring that someone has the legal authority to conduct financial transactions, manage businesses and property, and to make health care decisions are things that all elder law and estate planning attorneys do.  Doing this allows our clients to select and legally empower the persons they most trust to help them, when and if the need for help arises. The level of planning needed, varies with the complexity of the persons assets, and family dynamics.  I always reminded my clients that we are all only one illness or injury away from needing help with routine day to day decisions.  Careful advance planning, if everyone does what is expected of them, avoids the need for guardianship. 

Empowering Abuse

Misuse of a power of attorney is one of the primary tools of abuse and exploitation.  Agents on powers of attorney overstep their authority or breach their fiduciary duties. Oversteps include making decisions outside the scope of the authority granted and excluding others from contact with the grantor (forms of abuse or neglect.)  Breach of fiduciary duty ranges from failure to account for assets, conflicts of interest, to outright theft. The good news is that the majority of agents on powers of attorney, do the right things for the right reasons.  The bad news is not all do.  The ABA Commission on Law and Aging publishes guidance on defensive practices such as careful selection of agents, drafting in oversight and accounting, and limiting powers. See our Power of Attorney Tip sheet: Five Safeguards to Consider Adding to Any Power of Attorney for Finances

The core of advance health care planning is appointing an agent to make health care decisions for the grantor, for times when the grantor lacks capacity to consent to care. The health care decisions that are made by the agent should be made based on the directions or values of the grantor, and if those are unknown in the best interest of the grantor. This authority can be abused in two ways.  Some agents disagree with the directions or values of the grantor, and ignore those guiding factors resulting in denial of care the person would have wanted, or treatment the person would not have wanted.  Family conflicts also result in abuse of authority to make health care decisions, with the incapacitated person becoming a pawn in the disagreements.  The best prevention is careful selection and instruction of health care surrogates.  

Guardianship: Sometimes the Solution Sometimes the Problem

Guardianship can be an effective intervention in cases of abuse, neglect or exploitation, but should be the last resort. The ABA publication the PRACTICAL Tool provides a checklist of alternatives that should be explored and exhausted before considering guardianship.  Guardianship should always be the last option, not the first intervention. Unnecessary guardianships are a form of abuse, as guardianship severely restricts basic human rights and freedoms. 

Guardianship should only be pursued when,

·         The person is unable to participate in decision making in a meaningful way

And

·         Urgent decisions must be made to protect the person or property

And

·         No one has legal authority to make those decisions

Or

·         When the person is unable to protect themselves from harm, and all alternatives have failed to end ongoing abuse, neglect or exploitation of the person. 

While the vast majority of guardians are conscientious and do all of the right things, for all of the right reasons, some guardians commit acts of abuse, neglect and exploitation.  Bad guardians cause irreparable harm to persons with little or no ability to defend themselves.

Neglect by guardians is shockingly common.  The guardian places the person into a care setting, and then fails to maintain contact with the person, is unavailable when decisions need to be made, and generally fails at their court appointed duty of supervision.  This happens across the board from family guardians, to public and professional guardians who abdicate their responsibility to oversee the care and wellbeing of the person the court appointed them to protect. 

Guardians can commit more active forms of abuse.  Physical and psychological abuse can take place between protected persons and guardians.  Isolation – a form of neglect – happens when the guardian limits social interaction.  Sadly, when guardians are appointed to resolve family disputes, the guardian sometimes uses the authority as guardian to continue the argument placing a vulnerable adult in the middle of the fight, resulting in abuse, or neglect of the person.

Guardians and conservators have control of the money. We see a variety of forms of exploitation. From outright theft of assets, to insider dealing in clear conflict of interest such as “buying” assets such as cars and homes for a fraction of fair market value.  All Courts require some form of reporting or accounting, but most rely on self-reporting. Most courts have a limited ability to review the reports or investigate beyond what is submitted to them.  Even when exploitation is found by the Courts, it is often difficult or impossible to recover the assets that have been stolen.   The ABA Commission on Law and Aging publishes guides and provides technical assistance on expanded guardianship monitoring and reporting. This is an area where most courts are significantly under resourced.  Courts need a robust ability to investigate allegations of bad acts by guardians, to review requests to modify or terminate appointments, and to examine requests to remove or replace a guardian. 

Conclusion

All of this is complicated.  The tools we use to avoid guardianship, can also be used as tools of abuse, neglect and exploitation.  Guardianship is the trump card intervention to overcome bad acts by agents, but guardians also commit acts of abuse, neglect and exploitation.  A combination of careful planning, careful selection of agents and fiduciaries, limits on powers for agents and fiduciaries, and oversight and accountability are needed to limit exposure and catch bad acts when they happen. Additionally, the courts need resources to fully oversee the appointment and reporting of guardians.   

There are advocacy groups calling for meaningful reform of adult guardianship laws. I have seen cases of persons who had absolutely no plans in place, had experienced massively debilitating illnesses, and had significant decisions that had to be made that no one had legal authority to make; I have used guardianship as the only legally available tool to remove agents who were committing acts of abuse and exploitation.  Yet I recognize that bad guardians commit deplorable acts of abuse, neglect and exploitation.  We need to assure that the protections that we put in place, that our Courts order, truly protect the persons they are intended to protect.  

David Godfrey, JD

Senior Attorney, ABA Commission on Law and Aging

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