There are more than 46 million older adults age 65 and older in the United States. By the year 2030, 1 in 5 Americans are projected to be 65 years old. Regrettably, aging often brings illness and cognitive decline. Guardianship is frequently around the corner.
Generally, if a court determines a person has a disability, they may appoint (1) a guardian of the person, if it has been properly shown that because of their disability they lack sufficient understanding or capacity to make or communicate responsible decisions concerning the care of themselves. Similarly, the court may appoint (2) a guardian of the estate (conservator), if it has been properly demonstrated that because of the disability the person is unable to manage his or her estate or financial affairs. Finally, a court may appoint (3) a guardian of the person and the estate if that is what the individual needs.
Guardianships should only be used as necessary to promote the well-being of the person with disabilities. That can mean to protect the person from neglect, exploitation, or abuse, and to encourage the development of their maximum self-reliance and independence. Courts will only order a guardianship to the extent necessitated by the individual’s actual mental, physical, and adaptive limitations.
The three main types of guardianships are plenary guardianship, limited guardianship, and temporary guardianship. A "plenary guardianship" is a guardianship in which the court gives the guardian the power to exercise all legal rights and duties for the ward, after the court finds the ward to be incapacitated. The two main subsets of plenary guardianships are guardians of the person and guardians of the estate.
People often mistake the guardian of the person as referring only to the authority to make healthcare decisions. However, the scope of these duties is far more extensive. The guardian of the person may make medical decisions, oversee the residential placement of their ward (with court approval), ensure that the ward receives proper professional services, and release medical records and information.
Furthermore, the guardian of the person is expected to assist the disabled person (ward) in developing maximum self-reliance and independence. The duties prescribed to the guardian of the person are not absolute. For example, a guardian of the person is generally not allowed to admit a ward to a mental health facility, although there are some exceptions to this rule.
If directed by the court, the guardian of the person must file with the court at intervals indicated by the court, a report that must state a variety of updates regarding the ward. Some of these updates regularly include:
If the guardian requests, depending on the state, the Office of the State Guardian will provide relevant assistance in filling out these reports as requested by the guardian. The court is authorized to act as it deems appropriate with the information that is provided.
The guardian of the estate (or conservator in some states) may generally do the following for the ward:
The guardian has a fiduciary duty to investigate and pursue eligibility for government benefits to conserve the ward’s estate assets. A fiduciary duty is a legal obligation to act in the best interest of another.
In cases involving substantial assets, the court may require (or the family or the parties may request) a corporate guardian of the estate. Just about all major banks, and many of the mid-tier banks, have trust departments that can act as guardian of the estate. However, a bank will not act as guardian of the person.
The guardian of the estate is responsible for the care, management, and investment of the estate to the extent specified in the court order establishing the guardianship. You should know that some states call a guardian of the estate a "conservatorship." These terms can be used interchangeably and that can be confusing.
The guardian of the estate must manage the estate frugally and apply the income and principal of the estate so far is necessary for the comfort and suitable support of the ward, his minor and adult dependent children, and persons related by blood or marriage who are dependent upon or entitled to support from the ward. The guardian may make disbursement payments from the ward’s funds and estate directly to the ward or other dependents as directed by the court.
It is crucial to examine the potential guardian’s abilities and skill set when choosing a person to serve as a guardian for your loved one. The correct choice may be a spouse, adult child, or a friend. However, if there is no one in the person’s life with the correct abilities and skills, then you need to consider other options.
Some states and/or counties have officials who serve as public guardians. Another option is a private professional guardian, certified by the National Guardianship Association, Inc. (www.guardianship.org)
It is unfortunate, but not unusual for family members and friends to disagree about who should serve as a person’s guardian. In some cases, a lawyer may have to actually prove in court who should be the guardian. In these instances, the parties will frequently indicate that they are fighting for the loved one’s medical care and control, when they are really fighting for control of their money—specifically being concerned with how much is going to be spent on their loved one versus being part of their inheritance.
It is best to try to avoid a full-blown contested hearing to choose a guardian though. Many parties try to settle matters by agreeing to the appointment of financial institutions, geriatric care managers, county public guardians, or any other neutral party is guardian when family members and friends are contesting the choice of guardian. There are even not-for-profit guardianship agencies that will act as guardian of the person, some of them acting as both guardian of the estate and guardian of the person.
There often may be a family member or friend who is willing and able to serve as guardian of the person, but not the estate. Especially when there is a significant amount of money held in the ward’s estate, a trusted financial institution can faithfully serve the role of guardian of the estate. All the major banks and many of the mid-tier banks have trust departments that can fulfill the fiduciary duties as guardian of the estate. However, it should be noted that a bank will only act as guardian of the estate, not as guardian of the person.
For a ward who does not meet the criteria for a Public Guardian and who does not have a family member, a professional guardian can be a great choice. The National Guardianship Association, Inc. (www.guardianship.org) has a process to certify individuals who act as professional fiduciary guardians. In certain jurisdictions, there is a significantly higher bar which professional guardians must meet, as compared to traditional nonprofessional guardians.
In California for example, the state law was recently changed which subjects a professional conservator (guardian) to a ten thousand dollar fine for each instance of elder abuse that takes place. This is in addition to any other remedies which may be available for victims of abuse. Although this specific change is in California, it remains true that there is often a significantly higher bar for professional guardians across jurisdictions.
Real-Life Story: Sex for Signatures
On a warm Friday afternoon in Chicago, a Baby Boomer son and daughter of a physically healthy 86-year-old man named Eugene sat across the desk from a respected and experienced elder law litigator. They had come to see the lawyer for advice regarding concerns that they had about their father and his new friend Olga. This is the story they shared.
Dad married his high school sweetheart – that was our mom, Doris. They were married for over 50 years. Mom and Dad were always devoted to each other. For many years Mom suffered from debilitating diabetes, and then cancer. Mom loved Dad with all her heart, but we know that she had been much too frail to have had a truly intimate relationship for a long, long time.
Mom and Dad had always been religiously conservative – but for the last 15 years or so, Mom wasn’t even able to attend church. After Mom’s death, there was a funeral at the church. It seemed like everyone in the community turned out because Mom and Dad were so respected. A woman named Olga, whom none of us had ever met before, attended the funeral. She warmly addressed all of the family members and expressed her condolences for our loss. She appeared to be about 65 years of age and fit as a fiddle.
After the funeral, Olga began attending church and all of the older adult activities. She publicly declared her faith and volunteered to help out wherever she was needed. After a while, people told us that everywhere that Dad went, Olga was sitting right beside him. I think Dad was quite flattered to have the attention of a younger woman after all those years of caring for Mom. The relationship seemed to have become romantic within a matter of months after Mom’s funeral.
We children had noticed that Dad was becoming ‘a little forgetful,’ but we considered that just a normal part of old age. Dad has always been close with all of us kids, and he told us about Olga. We were very happy for him to have a companion and to be getting out of the house.
Everything seemed to start out okay, but during the last few months Dad had become more withdrawn from family activities. He wouldn’t call or return calls like he used to. He stopped sending birthday cards to the grandkids (which always had $50 bills in them). Some of us kids attempted a trip home to see Dad for Thanksgiving – but we were told quite bluntly, “no, please don’t come. I’m going to have Thanksgiving with Olga and her family.”
Right after Thanksgiving we got a call from a lifelong family friend who is Dad’s accountant. He urged us to visit Dad because he had been visited by Dad and Olga. He indicated that substantial changes in ownership of assets were being discussed. He recommended that we contact you, Mr. Attorney.
After listening to this story, the wise yet cynical lawyer stated, “from my experience, this is possibly a case of professional financial exploitation – especially because your father perhaps suffers from a bit of dementia. You told me that most likely your father and mother had not been intimate for many years, and I think it’s very probable that there is sexual activity going on between Olga and Eugene. I refer to this as the 'sex for signatures’ scam.'”
Immediately the son and daughter stood up, outraged. “You have no business insulting our family and our father! Our Dad has always been an upstanding man of faith! I resent your comments and your lack of empathy!” After saying that, they promptly left the office.
On the following Monday morning, the first call into the lawyer’s office was from the son and daughter, who had spent the weekend at their Dad’s home. As soon as the phone was answered, they said to the lawyer, “We can’t believe it! You were right. During the weekend we heard unmistakable sounds of intimacy coming from our Father’s room. And that’s not the worst of it! There was a brand-new Lexus sitting in the driveway, for which Dad had co-signed the loan – but the title is in Olga’s name.”
As you are probably aware, instances of financial exploitation are on the rise. Senior citizens are frequent targets for scammers. Sadly, about 90% of the financial exploitation of seniors is committed by family members or people that they should be able to trust, like caregivers.
Seniors, especially seniors with dementia, are the perfect victims because they generally won’t report the abuse for a variety of reasons. These range from embarrassment, to fear that if they turn in their relative or caregiver they will be put in a nursing home. The majority of these cases combine financial exploitation and emotional abuse. They go hand in hand, because an abuser will manipulate Mom or Dad’s emotions to exploit money from them. More often than not, these instances of money thievery involve some form of abuse of power of attorney.
While guardianship is often a last resort, it provides important protections for thousands upon thousands of individuals across the country. For many families who find themselves looking at the likelihood of guardianship, understanding the distinctions between types of guardianship, potential guardians, and the potential issues down the road may seem daunting. Nonetheless, it is important. As the attorney, you can walk your clients through the process to understand the ins and outs of guardianship.
I highly recommend reviewing both of my books on the issue of guardianship. Alzheimer’s and the Law: Counseling Clients with Dementia and Their Families is a great read as an attorney, it will provide you with statutory background and other crucial legal topics, such as a review of the Uniform Law Commission’s “Adult Guardianship and Protective Proceedings Jurisdiction Act,” which has been introduced or enacted in most jurisdictions. Conversely, I was asked to write my follow up book for the ABA, Don’t Let Dementia Steal Everything, which puts guardianship and other pertinent issues into context for non-attorneys who lack a legal background. Both books provide a great resource for those who are looking to develop a deeper understanding of guardianship, dementia, and related topics. Both books have been quoted in this article extensively.
