Adding Life to Years

by Lawrence J. Weiss, Ph.D.

When guardianships of elders aren't monitored, abuse is inevitable

Imagine the concluding chapter of your life. Most of us see the same thing: We're living at home, able to enjoy all or most of the activities we always have. We have friends and loved ones around who can provide companionship and a little assistance if we need it. Basically see ourselves being, as a last will and testament typically begins, “of sound mind and body” until we move on to whatever may come after this world.

As we all know by this point in life, things don't always turn out as we plan or hope.

Some older adults will become physically and mentally incapacitated by strokes, Alzheimer's disease or other disorders. These conditions often leave one unable to make rational decisions, either temporarily or permanently. In such instances, a spouse or other family member typically fills the role. But if no such person is available the courts often become involved by appointing a legal guardian.

Guardians, who are sometimes family members but often paid professionals, are granted enormous decision-making authority. In fact, becoming a ward (the person “guarded”) has been compared to being convicted of a crime. You lose the right to vote, to sign contracts, to buy or sell real estate, to manage finances, to marry or divorce. You no longer get to decide where to live or travel, to make decisions about medical procedures or even control your diet.

This all makes sense, of course, if one truly is incapacitated. However, it's easy to see how such a system could be abused unless close oversight were provided.

A mountain of evidence indicates that it is not. The disturbing facts are laid out in a forthcoming legal article by Judge David Hardy of Washoe County's Second Judicial District Court. The title of the judge's article asks, “Who is Guarding the Guardians?” and the answer is almost no one.

Guardians are appointed by courts, but few courts have the manpower to monitor what happens outside the courtroom. Guardianships are self-reporting, meaning the guardian may be required to file reports on things like money spent from the ward's bank account, but those reports are usually not audited. A 2006 report from the AARP Public Policy Institute and the American Bar Association Commission on Law and Aging found that one-third of courts had no one designated to verify the information in guardians' reports and accountings. Only 16 percent of courts said someone verified every report.

This is a dangerous situation. The National Center on Elder Abuse estimates that between 1 and 2 million Americans age 65 or older have been injured, exploited or otherwise mistreated by someone on whom they depended for care or protection, which is the definition of a guardian.

Over the years news organizations have frequently reported on abuse of the trust placed in guardians. The Los Angeles Times reviewed more than 2,400 adult guardianships in Southern California, including every guardianship in which a private, for-profit guardian was appointed between 1997 and 2003. Some guardians were found to be ignoring the needs of wards and charging excessive fees that depleted the ward's estate.