While there are many reasons for needing to obtain a guardianship, and the time-consuming petition and hearing process is designed to ensure that all interested parties are in agreement on the terms, problems can still arise after a judge has approved the petition and the guardianship is put into place.
Considering that a guardian has access to the disabled person’s finances and personal information, there is strong potential for abuse in the system. Unfortunately, the reporting requirements discussed in the previous post of this series, as well as laws governing guardianships, are sometimes inefficient to prevent or stop this abuse. In addition, state and local courts often don’t have the necessary resources to thoroughly review all of the guardian reports it receives.
The primary controversy surrounding adult guardianships is the notion of removing decision-making rights from the ward.
A major scandal involving elder abuse by appointed guardians made news in Nevada in 2018. A group of people, including a Las Vegas police officer, were charged with exploiting the state’s guardianship system to steal the life savings of an elderly woman with dementia. While this was an extreme case, it cast a light on smaller scale abuses in guardianships across the country. Legal professionals have since begun advocating for improvements and changes to the adult guardianship system to protect elderly and disabled wards.
(For an in-depth discussion on abuses and oversights in the guardianship system, see Bloomberg Law’s investigative report, “Guardians’ Dark Side: Lax Rules Open the Vulnerable to Abuse.”)
Any interested person named on the original petition can file a Motion to Review Guardianship with the Court if they suspect unethical behavior on the part of the guardian. They, and anyone else familiar with the situation, can also report their concerns to their local Adult Protective Services office or other social services authority, and the organization can investigate and then file a report if necessary.
When a Motion to Review Guardianship is filed, the Court can take any of the below courses of action, based on the content of the complaint and the evidence available:
In 2017, Nevada passed legislation requiring independent attorneys to be assigned to represent adults named as wards in guardianship petitions. While most states stipulate that adults under guardianship have the right to counsel (Maryland requires that the Court appoint counsel for the alleged disabled person if they do not have their own attorney), Nevada’s law explicitly states that representation be appointed before the petition is approved. In addition, the legal costs are paid by the Court, with no charge to the ward, allowing increased opportunity to challenge the petition if desired.
The American Bar Association expresses concern that guardianship is too often used as a first resort rather than a final one. In a 2020 report, the ABA introduced a proposal to improve adult guardianships, using the Child Welfare Court Improvement Program passed by Congress in 1993 as a model. The program promotes “supported decision making” as a less restrictive alternative to guardianships.
Supported decision making is a program that encourages a more interactive and collaborative relationship between guardians and wards. Rather than making decisions for the ward, supporters (a term used in this system in place of “guardian”) function more as consultants, offering advice and direction for individuals with disabilities to make informed decisions. The disabled person chooses their own supporters according to their individual needs, and they execute a decision-making agreement based on these needs.
Like any legal process, guardianship policy is evolving with society. There will always be people who are incapacitated and need outside intervention to handle their personal care and finances. Supported decision making is emerging as a way to keep disabled adults actively engaged in their daily life decisions. Supporters of this alternative believe it will help remove the more controversial and abuse-prone aspects of guardianship and preserve a sense of autonomy.
One way to avoid the need for a guardianship in the future is to plan ahead and take the estate and end-of-life planning steps outlined in Part I of this series. A power of attorney and an advanced medical directive make your wishes for the future clear and legally binding.
Contributed by Elizabeth Green