Guardians & Guardianships: A Primer
Imagine what life would be like if you couldn’t go to the doctor, pay your gas bill, or live in your home without another person’s permission. Imagine if a stranger appointed by a court could move you into a nursing home against your will, sell your house, choose your doctor, spend your money and even rewrite your will. Imagine if that person were able to stop your family members from visiting you and could consent to or refuse medical procedures in your name.
As scary as this sounds, this is daily life for the hundreds of thousands of Americans who have been declared incapable of handling their own affairs and placed under the supervision of court appointed guardians. Although guardianship is a valuable institution that can help protect those who are no longer able to protect themselves, it is also a system that is uniquely open to abuse. Guardianship places one adult’s rights in another’s hands, and most states do little to monitor these arrangements.
This Citizens Legal Guide offers basic facts about how the guardianship system works and provides information that can help you protect yourself and your loved ones. If you are involved in an unwanted guardianship, we recommend finding out what the guardianship laws are in your state either at your local law library or by visiting www.retirementnightmare.com which includes a summary of the state codes and statutes nationwide.
What Is a Guardian?
A guardian is a person appointed by a court to make important decisions on behalf of someone (called a ward) who is unable to make responsible decisions for him or herself. With baby boomers aging and Alzheimer’s cases increasing, a loss of capacity is a real prospect for many of us. If you are smart, you will plan ahead and create documents like a durable power of attorney that provide direction for the management of your money and your physical care. Even if you have a loving and supportive family that is ready to help, it is important to identify who exactly will be in charge of your affairs—and who will step in as a substitute if your original selection is no longer available. If you do not plan ahead in this way, a professional guardian could be appointed who views you as just one of many “cases” that need to be handled.
Once appointed, a guardian’s authority over you is similar to that of a parent over a minor child. Like a parent, a guardian normally has the last word and has the duty to act in your best interests, as the guardian understands it. A court may appoint a guardian to make financial decisions (sometimes known as “conservatorship”), to make intimate personal decisions (“guardianship of the person”) or both. In some states, the term conservatorship refers to all adult guardianship arrangements, whether establishing authority over financial or personal decisions. The law allows a guardian to decide how your money will be spent, what doctors you will see, what medical treatments you will receive, and whether you will live in your own house or in a nursing home. In some states, a guardian can even modify your will or trust and must approve changes in your marital status.
How Is a Guardian Appointed?
Most guardianship cases begin with the filing of a “petition for guardianship.” This is a request in which the person seeking to be named guardian tells the court why it is necessary. If you do not believe that you need a guardian, or object to the person who is proposing to be your guardian, you can contest the petition for guardianship. A friend or family member can also file papers with the court to formally contest the guardianship petition.
Before a guardian is appointed, the court must hold a hearing to determine whether you are in fact unable to handle your own affairs. Guardianship cases are usually heard by judges in the probate division of state courts. According to the Uniform Guardianship and Protective Proceedings Act, a court can only declare a person incompetent if that person is “unable to receive and evaluate information or make or communicate decisions,” or unable to “meet essential requirements for physical health, safety, or self-care, even with appropriate technological assistance.” As you can see, this language leaves a great deal of discretion and power in the hands of judges.
The law provides some safeguards against the court mistakenly declaring you incompetent or selecting an undesirable guardian. These are vital because the appointment of a guardian may extinguish all or many of your rights. In most states you have the right to:
• receive notice of a guardianship petition;
• be present at the hearing on your case before a judge;
• be represented by a lawyer (who may be appointed by the court); and
• present evidence of your ability to take care of yourself.
"The principle of limited guardianship, which requires that a guardian “should be appointed only when necessary, only for as long as necessary, and with only those powers as are necessary,” has been adopted in many states."
While the law presumes that guardianships should only be used as a last resort, the sad truth is that courts can and do bypass almost all the usual procedural safeguards for appointing guardians. One particularly egregious example is the frequently-used “emergency guardianship,” which can be established without so much as notice to the proposed ward if the petitioner claims (and the court determines) that delay would be harmful to the ward’s health, safety or welfare. Courts usually make emergency appointments on the basis of statements and information provided by the person petitioning for guardianship. Although these emergency appointments are supposed to be temporary, they tend to become permanent.
The Messy Reality.
Courts often fall short of their own standards for appointing guardians.
Three common reasons are:
• Judges’ attitudes—Daily exposure to the woes of the elderly and the handicapped leads many judges to presume that all individuals who are the subject of a petition for guardianship are unable to take care of themselves. The judge may view you as incompetent until you are proven competent, even though the law requires the opposite. Similarly, a judge may find it easier to give a guardian complete powers over you despite the principle of limited guardianship which encourages tailoring a guardian’s authority to your specific needs and capabilities.
• Heavy caseloads—Judges who preside over guardianship appointments are often responsible for hundreds of cases at a time. Many cut corners and take a relaxed attitude toward procedure in order to move cases along. They may justify doing so because guardianship proceedings are supposed to be “non-adversarial,” meaning that the court assumes that both sides have fundamentally the same interests at heart—your protection and wellbeing.
• Difficulties of finding an advocate—When faced with an unnecessary guardianship petition you may experience feelings of shock, fear and betrayal. It can be difficult to hire a lawyer and prepare for a court hearing under such circumstances. Moreover, if the court appoints a lawyer, he may not be obligated to follow your instructions. A court-appointed attorney’s obligation is often to your “best interests,” not your personal wishes. As over-burdened as judges, court-appointed attorneys may consent to a guardianship and waive the protective procedures that would otherwise apply. One study found that court-appointed attorneys in Florida waived their clients’ right to a hearing in 90 percent of cases.
"To be wrongfully subjected to guardianship may be the greatest loss of rights a person can experience short of being sent to prison. Although you canusually respond to a guardianship petition or challenge an existingguardianship informally, professional representationincreases your chances of being taken seriously by the court."
Who Can Be a Guardian?
Because there are more elderly and incapacitated members of society than there are family members to care for them, courts sometimes have to rely on government-run guardianship programs. The problem is, these programs usually lack the funds to care for more than the most desperate cases. In Florida, for example, a 2003 study found that even though more that 22,500 residents needed a guardian; the statewide public guardianship office could care for no more than 1,750. Large caseloads and insufficient funds frequently compromise the quality of care and attention provided by public guardians.
Stepping up to fill the void is an industry of professional, or “for-profit,” guardians. Professional guardians profit because they are allowed, under the law, to be compensated for their services out of their ward’s account. Many professional guardians reap huge sums by managing the lives of hundreds of sick and handicapped adults at once.
Although many are lawyers, almost anyone can become a professional guardian. The industry is poorly regulated, and few states require licensing or training. For-profit guardians drum up business by cultivating relationships with doctors, hospitals, lawyers, courts and government agencies responsible for the elderly or the handicapped. There are few hard numbers, but the guardianship industry is growing.
What Powers Does a Guardian Have?
A guardian can...
- Spend your money
- Be compensated from your assets
- Decide where you will live
- Bring lawsuits on your behalf
- Buy and sell property in your name
- Enter into contracts on your behalf
- Consent to your medical care
- Consent to your marriage
- Consent to changes in your will
You cannot...
- Make bank withdrawals or sell stock without a guardian’s approval
- Refuse to pay a for-profit guardian
- Decide where to move without a guardian’s permission
- Bring lawsuits without a guardian’s permission
- Buy and sell a house or car without a guardian’s permission
- Hire or fire a cleaning person or others without a guardian’s permission
- Choose doctors without a guardian’s approval, or reject or consent to medical treatment without a guardian’s permission
- Divorce without a guardian’s permission
- Write a new will without a guardian’s permission
How Can These Powers Be Abused?
A responsible guardian needs these powers to effectively manage your affairs. If you were suffering from dementia and asked to enter into a contract (say, for example, to sell a car you no longer use) you could easily be cheated without a guardian to supervise. Similarly, a guardian needs to be able to protect you from being coerced into making changes to your will when you are very ill.
Unfortunately, guardianship abuse, often but by no means exclusively by for-profit guardians, has become alarmingly common.
The most common kind of guardianship abuse is simple theft. A guardian’s authority to be compensated out of your accounts may become an invitation to embezzlement. In a recent California case, a for-profit conservator whose clients were primarily disabled veterans fleeced more than one million dollars from her wards’ bank accounts. Other guardians may not steal outright, but will charge exorbitant fees for mundane tasks. A professional guardian may charge you hundreds of dollars in hourly fees for having a bag of groceries delivered, or for making brief visits.
Guardianship abuse can be much more extreme, however. An abuser may confine you to a nursing home while pillaging your life savings. He may withhold your food, bar you from leaving your home or block contact with loved ones, sometimes as a punishment. In one case, a for-profit guardianship firm committed felonies against more than 600 of its incapacitated wards, selling at least one person’s home to an employee’s relative for just $500.
No comments:
Post a Comment