There's Nothing Funny About Guardianship

There is nothing funny about guardianship. But that didn't stop John Oliver from tackling a subject, Last Week Tonight with John Oliver, that is fast becoming a problem for older Americans -- court-appointed professional guardians who have been granted legal authority to control an individual's life and finances.

Now, according to Oliver, when the system works, it's great. But when it doesn't work, well, it doesn't work at all.

In Oliver's program, for instance, one couple describes losing all their money because of the actions of a court-appointed guardian.

Among other things, Oliver notes that far more people are under guardianship than one might think. One study, for instance, notes that some 1.3 million people are under "active adult guardianship or conservatorship cases..."

Oliver also noted that guardians can have a huge amount of power over people under their care, or their "wards." (For the record, Oliver based much of his reporting on previously published reports and hearings, including this 2017 New Yorker report, How the Elderly Lose Their Rights, and this 2018 Senate Aging Committee hearing, Abuse of Power: Exploitation of Older Americans by Guardians and Others They Trust.

Because they may have to make financial health decisions, these guardians can have access to "everything" from the ward's bank accounts to their health records. And the wards can lose a lot of their rights, from being able to vote in elections to being able to get married. "It is no small thing," Oliver told his viewers.

Indeed, during the program, there's a video clip of Steve King, a judge in Tarrant County, Texas, saying the following: "Guardianship is a massive intrusion into a person's life... they lose more rights than someone who goes to prison."

And where things get problematic, according to Oliver, is where guardians gain control of their ward's finances. That's because, according to Oliver, private guardians can bill for each individual service they provide, from leaving voicemail messages to just opening the mail, and they can take payment directly from their ward's estate. "And those charges can accumulate fast and sometimes seem ridiculous," said Oliver, who then went on to show video clips of a guardian who charged his ward $1,027 to take go to a Phoenix Suns basketball game and to evaluate, among other things the effect the game had on the ward's mood.

Oliver also detailed the fate of one private guardian who has been indicted on more than 200 felony charges that include racketeering, theft, exploitation and perjury.

In the program, Oliver noted that guardianship is the responsibility of state and local courts, and everything about private guardians -- including what they charge -- is up to local judges, who may be elected and who may have no legal training. He noted, for instance, how in Texas some of the "judges" may not even be lawyers but instead are farmers, car dealers, and insurance salesmen.

Oliver also noted how guardians sometimes don't even know if their ward is alive or dead and how just 12 states require professional guardians be certified at all. "So just about anyone can become one," said Oliver, pointing to this Government Accountability Office (GAO) report, The Extent of Abuse by Guardians Is Unknown, but Some Measures Exist to Help Protect Older Adults.

And that means they, the professional guardians, are going to steal money according to Greg Kutz, a GAO investigator.

According to Oliver, the lack of oversight is worrisome given how easy it is to have a professional guardian appointed by a court and how long it takes to get out from under that guardianship. To be fair, Oliver said guardianship isn't inherently bad -- there are people who need it. But the checks and balances of court-appointed professional guardians needs, given the silver tsunami that's coming, to be improved -- from greater regulation to more funding for oversight.

Oliver did say there are steps that one can take to avoid being taken advantage of. For instance, having honest conversations -- about you, your finances, and your wishes should the need arise for guardianship -- with your family is a must. They might help from having a court step in and appoint a complete stranger to manage your finances.

In addition, Oliver (with the help of some well-known celebrities) recommends making sure you have a durable power of attorney and a healthcare proxy in place, and share the documents with your loved ones and financial team.

According to Nolo, a power of attorney is a legal document that gives someone you choose the power to act in your place. In case you ever become mentally incapacitated, you'll need what are known as "durable" powers of attorney for medical care and finances.

According to AARP, advance directive or healthcare proxy details the type of health care you do or do not want when you can't make your own decisions. Read more about that from AARP here.

You've got to start planning for the future now, say the celebrities, which include Jane Fonda, William Shatner, and Lily Tomlin.

What He Got Right, and Wrong

So, what did Oliver get right about guardianship, what did he get wrong, and what did he fail to include but should have? We asked experts for their thoughts.

As a general matter, Oliver did a good job providing an accessible overview of guardianship, some of the problems that can occur, and steps that can be taken to reduce problems, says Nina Kohn, the associate dean for research and online education and a law professor at Syracuse University College of Law.

"However, it's important to recognize that much of the behavior Oliver described in the segment is not only immoral, it's illegal," says Kohn, who testified before the Senate Aging Committee earlier this year. "Guardians have a fiduciary duty to the individuals for whom they serve. The types of fees Oliver describes guardians charging violate this most basic legal duty."

In good news, Kohn reports that the Uniform Law Commission recently released model legislation for the states that, if adopted by the states (and Maine has already adopted it), would help prevent such fees from being paid in the first place.

"As I noted in my Senate testimony, the act limits the ability of unscrupulous guardians to drain assets by charging unreasonable fees," says Kohn. "For example, it requires courts to consider the market value of services provided by guardians before approving fees. After all, attorneys serving as guardians should not generally be paid their hourly rate to do non-legal tasks like grocery shopping."

While the cases that Oliver discusses are not the norm, Kohn says the problems he describes are very real and very troubling. "As Oliver points out, we absolutely need to improve checks and balances to make sure that the guardianship process actually protects people," she says.

For instance, Kohn says the act creates new mechanisms to monitor guardians at minimal cost to the public by leveraging persons interested in the individual's welfare. "Specifically, courts must, absent good cause, require guardians give the individual's family or friends notice of certain suspect actions," she says. "These can act as the court's eyes and ears to prevent or remedy abuse."

In addition, Kohn says, the act creates a grievance procedure that allows individuals subject to guardianship and others interested in their welfare to alert the court to potential abuses without the expense and bother of a formal legal process.

Not All Guardianships Are the Same

Kohn also says she would have liked to have seen Oliver recognize that not all guardianships are the same. "Some people are subject to full guardianships in which the guardian has broad powers -- indeed, all powers available under state law," she says. "But others are subject to limited guardianships, in which the guardian only has authority to do certain, specific things."

Bernard Krooks, an attorney with Littman Krooks, says guardianship is very state-specific and some states do it better than others. "By most accounts, serving as someone else's guardian is a thankless job," he says. "A lot of work, with court oversight in many states, for very little pay."

To be sure, Krooks says there are abuses and, in a perfect world, that should never happen. "For many, there are no relatives available or willing to serve as guardian," he says. "Thus, the need for an independent or public guardian. Many states don't have the necessary funding to do this right and therein lies the problem and potential for abuse."

According to Kohn, one of the most important ways to improve the guardianship system is to reduce the number of people who are subject to full guardianships relative to limited ones. "Guardianship is a drastic remedy," she says. "It can strip a person of the right to make even the most fundamental decisions: who to marry, where to live, what medical treatment to have, even with whom to socialize and what to eat."

Limited guardianship, by contrast, is essential to make sure that guardianships do not strip more rights than absolutely necessary. "Again, in my 'good news' refrain, the new Uniform Act contains a number of provisions designed to discourage the use of full guardianships where less restrictive measures would meet an individual's needs."

Honest Conversations

Having honest conversations with family is generally a good idea," says Anna Rappaport, a retirement expert and chair of the Society of Actuaries' Committee on Post-Retirement Needs and Risks. "But there are situations where care is needed. Family can also be a source of fraud."

Others share this point of view. Honest discussion is good, but provide little protection against guardianship, says Kohn. "Unless people legally authorize someone to act on their behalf, they may end up in the guardianship system regardless of how many 'honest conversations' they have," she says. 'Executing both a power of attorney for healthcare, the healthcare proxy, and a power of attorney for finances is a front-end defense against guardianship."

But just as guardians can steal or abuse their power, so can the agents that people appoint, she warns. "Adults executing these documents need to make sure that they are appointing people who are trustworthy and are comfortable making the decisions that adult wants made. Where state law provides the option, they should consider appointing another person to monitor the agent."

Rappaport also notes that powers of attorney are important, but they can be abused, and they need instructions attached to them. "The idea of writing a piece a paper and signing it without understanding the complexities of a power of attorney is very frightening, and opens up the way to problems as well," she says. "Instructions for decisions when one can no longer make them are needed for both financial matters and healthcare."

It is far preferable, says Rappaport, to take control of who will help you and put the right legal papers in place than to have the court appoint a guardian. "But this is a process that needs to be done right and thoughtfully," she says. "This is also connected to estate planning generally."

Oliver, says Rappaport, "fails to acknowledge the importance and value of guardianship when it is needed and the situations where it is important."

And, one of the huge challenges, which Oliver did not acknowledge, is that some older people who have cognitive decline and need help are in denial and they let things get into a very bad state before anything is done, says Rappaport. "In some situations, a 'disaster' may be the trigger for action," she says.

Resources

Society of Actuaries: Managing Retirement Decisions

National Adult Protective Services: How APS Helps

Stanford University's Center on Longevity: Fraud News

The National Academy of Elder Law Attorneys

Protecting Seniors From Financial Exploitation ' FINRA.org

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