When an older adult loses the ability to take care of himself, make or communicate decisions, or handle their financial matters, someone needs to step in and help him, so that they do not suffer neglect or abuse. What happens when an elderly person becomes incapacitated will depend on whether he has family to help, or has made the legal arrangements for someone to manage his care. When a senior does not have any family members nearby who are able or willing to help, sometimes the courts have to get involved.
The Problem with Court-Appointed Guardians
Many court-appointed guardians are dedicated professionals who carry out their duties honorably, but some perpetrate what advocates for the elderly call “elder abuse” of epidemic proportions. Depending on the actual wording of the court order, a guardian can have relatively unfettered control over the life savings and home of the senior. If the elderly person raises suspicions of mismanagement of her funds, people usually disregard the concerns because of her diminished cognitive abilities.
There is little oversight of guardians. Even if they file accountings with the court, those documents are rarely verified for accuracy or truthfulness. The so-called accounting could be a work of fiction. A guardian can sell a person’s home, tap into the bank account and no one will ever know. When the senior who has no close family dies, an unscrupulous guardian can keep assets illegally appropriated, and no one will question the actions taken.
In addition to better oversight, elder-care experts advocate for stricter requirements for people seeking to serve as guardians. There is no comprehensive database that maintains information about guardians, so tracking the “bad apples” is not possible.
Guardians are supposed to manage a person’s care, finances and even medical care, depending on the terms of the court order. Some states have reported guardian-to-ward ratios of 1-to-40. In one abuse case, a guardian had about 400 wards. Imagine the public outrage if one person was trying to raise 40 children, much less 400 – yet there is little societal concern about our vulnerable elderly, who are depending on the very people who end up taking their money.
How to Protect Yourself and Your Loved Ones from Unscrupulous Guardians
Make the necessary legal arrangements now, before you (or a loved one) become incapacitated, so you will not be left with a court-appointed guardian, who is a total stranger. Prepare a durable power of attorney to appoint someone to act as your representative and make decisions about your care and financial matters if you are ever unable to do so. While you are at it, execute a medical power of attorney and appoint someone to make medical decisions for you if you cannot do so.
Give your doctor and bank these documents so they can raise any objections while you are able to make changes. Some financial institutions want you to use their forms. Regardless what your state law says, some banks will object to a power of attorney that is more than a few years old, so redo the documents every few years to cover yourself.
An experienced elder law attorney can help you protect yourself and your loved ones from having to settle for a court-appointed total stranger as guardian. Your state laws might be different from the general law in this article, so be sure to talk with an elder law attorney in your area.
Huffpost. “The System of Court-Appointed Guardians Continues to Fail the Elderly.” (accessed July 19, 2018) https://www.huffingtonpost.com/entry/court-appointed-guardian-system-failing-elderly_us_59d3f70be4b06226e3f44d4e