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Jewish World Review
Sept. 19, 2006
/ 26 Elul, 5766
Who protects them from their guardians?
Jan L. Warner & Jan Collins
A few weeks ago, we wrote about the growing problem of abuse of our senior citizens, usually by adult children and spouses. In response, we heard from a number of readers telling us that we had ignored the increasingly important topic of abuse of seniors by their court-appointed guardians. Usually, this abuse is financial, occurring when unscrupulous guardians empty or greatly diminish seniors' bank accounts, largely because there is little oversight of court-appointed fiduciaries once they have been appointed.
After doing more research on this topic, we agree that this type of abuse appears to be a growing problem, which will undoubtedly become an even larger issue as the baby boomers (the oldest are now 60) continue to age.
First, the definitions. Guardianship is a legal process designed to help appoint fiduciaries for people who can no longer make or communicate sound decisions about their person (health care) in some states, and both their person and property in others. Guardians, says writer Barry Yeoman in AARP, The Magazine, "can be attorneys, relatives or friends, government employees, private social workers, money managers, community volunteers, or employees of social-service organizations. They might be volunteers or they might charge a fee.
But according to a new AARP survey, in about half of responding jurisdictions (40 percent), no one is assigned by the courts to visit the vulnerable individuals under guardianship protection, "leaving many Americans open to physical and financial abuse."
Furthermore, according to the survey, most courts make minimal use of computer and other technology to track adult guardianship filings and dispositions. The reason: state and county governments provide insufficient funding for appropriate monitoring. (The survey, "Guardianship Monitoring: A National Survey of Court Practices," was conducted by AARP's Public Policy Institute with the help of the American Bar Association, and is the first examination of guardianship oversight practices in 15 years.)
The survey also found that while 74 percent of the courts require annual reports on the ward's personal status, more than one-third of the surveyed respondents admitted that no one verifies the information contained in the reports.
Stories about abuse by guardians are surfacing all across the country. Money Magazine referred to it as "the gulag of guardianship" and called it a "national disgrace." In November 2005, the Los Angeles Times published a four-part series on guardianship abuses.
Said the Times report: "Professional conservators wield enormous power over people deemed too infirm to look after themselves. They choose their doctors, control their bank accounts and decide where they will live - even who can visit them. Probate courts, which appoint conservators, are supposed to monitor their conduct, scrutinize their financial reports and fine or remove those who misuse their authority. Yet the courts have failed dismally in this vital role."
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Robin Westmiller of Thousand Oaks, California, couldn't agree more. In her new book, "Blood Tastes Lousy With Scotch" (Star, 2006), she recounts the true events of a Florida family services organization appointed legal guardian of her elderly father at the behest of a cousin which legally drained her father's accounts of nearly $250,000 before Westmiller was able to have her father once again declared mentally competent.
Westmiller has formed an organization the National Association to Stop Guardian Abuse (NASGA) the Web site for which can be found at http://stopguardianabuse.org. In a recent interview with NextSteps, Westmiller, who is currently attending law school, said she founded her group in the aftermath of the 18-month-long "nightmare" that occurred with her own father's guardianship. "It's an organization I wish I had had when I was going through all this with my Dad," she said.
NASGA is a self-help membership organization that advises people in a similar situation what they can do. "We give information, not legal advice," Westmiller says. "But we tell people what (documents) they need to accumulate" for their own attorneys.
Westmiller and other organizations say the guardianship abuse crisis is "always about the money." A professional guardian or heir can get control of seniors' money "by alleging that you can no longer manage your affairs," says a group called Justice for Florida Seniors, which can be located at (www.justiceforfloridaseniors.org).
But critics also put the blame squarely on probate and surrogate court judges who appoint guardians some of whom may turn out to be incompetent and/or dishonest and then fail to provide judicial oversight. "Some judges," Westmiller says, "never even meet the victims (elders) who they strip of life, liberty and property."
Westmiller and others call for better education of probate judges on guardianship issues, better judicial oversight and severe penalties for the dishonest guardians.
Some states, such as New Jersey and Wisconsin, have recently passed legislation to improve the guardianship process, including stronger monitoring, and the California legislature is considering similar measures, according to the AARP. But it would seem like a good idea for the federal government to take the lead with model legislation and funding for research.
The first line of defense against this insidious problem is to plan in advance with durable powers of attorney and trusts through which trusted fiduciaries can follow your direction should you become incapacitated. For those who have not planned or have planned poorly, contact your national and local lawmakers about introducing and passing stricter legislation, because if we live long enough, eventually we, too, may well be vulnerable to guardianship abuse.
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JAN L. WARNER received his A.B. and J.D. degrees from the University of South Carolina and earned a Master of Legal Letters (L.L.M.) in Taxation from the Emory University School of Law in Atlanta, Georgia. He is a frequent lecturer at legal education and public information programs throughout the United States. His articles have been published in national and state legal publications. Jan Collins began co-authoring Flying SoloŽ in 1989. She has more than 27 years of experience as a journalist, writer, and editor. To comment or ask a question, please click here.
© 2006, Jan Warner