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Abusive Guardianships and the Loss of Identity

Erica C R Costello


  • An individual's identity may be lost when appointed a guardian to take over making decisions for their lives and it is even worse if the guardian abuses, neglects, or financially exploits those under their care.
  • If you suspect abuse, it's important to report it to the court or Adult Protective Services.
  • Courts should only appoint a guardian after considering less restrictive alternatives that seek to preserve an individual’s identity and autonomy.
  • Courts should remove guardians who fail to uphold their duties and protect individuals' identities.
Abusive Guardianships and the Loss of Identity

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At the crux of a person’s identity is the ability to make decisions based on their own goals, needs, and preferences. When the court appoints a guardian, an individual may lose their identity, as someone steps in to make decisions on their behalf. Unfortunately, guardianship can also result in abusive conduct and behavior. Such guardianships may require legal interventions to prevent further abuse and the loss of a person’s identity from occurring.

Following law school, my first job was to head up an Adult Protective Services (APS) office in Northern Indiana. It was during my tenure in this office that I became aware of abusive guardianships and their effect on vulnerable adults. Most guardianships are initially sought to keep an individual safe and to prevent harm from occurring. However, our office would sometimes become involved in cases where the person appointed by the court used the guardianship to abuse, neglect, or financially exploit the individual under their care. In some cases, the abuse was quite overt, and the guardians would seek to deprive the individual of their rights or take their own money without providing for their basic needs (including food, clothing, or shelter). We also encountered cases involving guardians who refused to act on behalf of individuals, which included not seeking services, benefits or making appropriate housing arrangements. Our office would often intervene in these types of cases and seek to remove the guardian or replace the guardian with a successor guardian if necessary.

One abusive guardianship case we intervened in involved a 19-year-old male with mild intellectual disability. He attended a public high school and was on track for receiving a “certificate of completion.” However, he did not have a good relationship with his mother or her boyfriend. In fact, police informed our office that he got into a physical altercation with his mother’s boyfriend and was injured as a result. Following this altercation, the mother obtained guardianship over her son and prevented him from leaving the residence. As guardian, his mother forced him to live with his alleged abuser and isolated him from his family and friends. Due to these concerns, our office intervened and requested the appointment of a Guardian ad Litem (GAL) in the guardianship case. Following an investigation, the GAL and our office recommended removing the guardian and terminating the guardianship outright (as there was no need for continuation of the guardianship). The court granted this recommendation, and the individual was able to move away from his abusive guardian and received services and supports from his grandparents.

Not all abusive guardianship cases involve family members—some involve suspicious “friends” who take advantage of those individuals under their care. For example, our office became involved in another case involving an older adult who was placed under guardianship by her “good friends.” These “friends” also transferred her money into an account she could not access and used the funds for their personal benefit. Further, they took possession of her personal items and collectibles, placing them in various rooms throughout their own house. After our office became aware of the situation, we worked with the older adult’s family members and removed the “good friends” as guardians. One of her family members was later appointed as successor guardian. Further, we worked with law enforcement regarding the criminal allegations of financial exploitation involving her “good friends” and former guardians.

During my time at APS, we also investigated cases where the appointed guardian refused to act or take care of the person under guardianship. In one situation, we found that a disabled young adult had a guardian who was frequently “unavailable” and refused to plan for his care. The guardian was a family member who lived in another state and, although she received his social security benefits, would not pay for his care. In this case, our office intervened in the guardianship and was able to have the guardian removed by the court for failure to perform her duties under the guardianship. The court then appointed a professional guardian as the successor guardian. This case illustrates that abuse can include the failure of a guardian to act, especially when supports or services are needed and the guardian fails to provide for those.

So, what do you do if you become aware of an abusive guardianship? Some jurisdictions have established processes for communicating complaints or concerns involving guardians to the court. You can also contact APS to report concerns involving an abusive guardianship. (Note: most states have mandatory reporting statutes that require individuals to report to APS if there is reason to believe that there is abuse, neglect, or financial exploitation. To check on the mandatory reporting statutes in your state, you can look here. Individuals can also contact law enforcement if the abusive guardianship involves concerns or allegations of criminal activity. Finally, in some cases, a court can appoint a GAL to investigate concerns involving an abusive guardianship. The GAL can then make recommendations to the court which may result in the removal of the guardian, the appointment of a successor guardian, or an outright termination of the guardianship.

Abusive guardianships often result in the loss of an individual’s identity, which may include the right to choose where to live, who to date or marry, which religion to practice, who to vote for, and with whom to socialize. As such, courts should only appoint a guardian after considering less restrictive alternatives that seek to preserve an individual’s identity and autonomy. Under the National Guardianship Association’s (NGA’s) Standards of Practice, guardians are required to first ask what the person under guardianship wants when making a decision (NGA Standards of Practice, 2013). Guardianships who do not take that individual’s goals, needs, and preferences into consideration can become overly restrictive and abusive. Under such circumstances, courts should remove guardians for failure to uphold their duties and to preserve the individual’s identity, dignity, and way of life.

Works Cited
NGA Standards of Practice, 4th ed. (2013).