Guardianship In The U.S.: Protection Or Exploitation?

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Ginger Franklin was just shy of her 50th birthday when she fell down the stairs of her Nashville-area townhouse in 2008. A marketing representative for Sam’s Club, she was taken to the hospital with a severe brain injury. Doctors weren’t sure if she would survive.
Since Franklin had not designated anyone to make decisions for her if she became incapacitated, and with no immediate family, her aunt was advised to petition the court for a guardian. The guardian, a lawyer appointed by the county, placed her in a group home for seriously mentally ill adults.
But Franklin was not mentally ill. And she did what no one expected her to do: she recovered.
When she returned home from a rehabilitation center seven weeks later, however, the guardian “told me that I didn’t have a home anymore and that my townhouse was empty,” Franklin said.
As is common in guardianship cases, the court granted permission for the guardian to sell Franklin’s home and its contents. The owners of the group home where she was placed then put Franklin to work: She was forced to do the grocery shopping, cook, dispense medication, watch over the other residents of the house and clean the owners’ personal home — for no pay, Franklin said. Meanwhile, she was paying $850 monthly rent to the owners, plus $200-per-hour attorney fees to the guardian for such tasks as writing checks for Franklin’s expenses and leaving phone messages, according to a court document.
With the help of an advocate, and media attention, Franklin fought the guardianship in court, winning her freedom in 2010 after two long years of having no legal rights. She now lives independently in the Nashville area and has sued the guardian.
“It’s quite an understatement to say I was devastated,” she told Next Avenue. “I don’t trust people anymore. I lost everything — because I fell down the stairs.”
More Will Enter 'The Danger Age'
Franklin’s case, originally investigated by The Tennessean newspaper, is just one of many cases of guardianship and conservatorship abuse across the country.
In a 2010 report, the U.S. Government Accountability Office (GAO) found hundreds of allegations of physical abuse, neglect and financial exploitation by guardians in 45 states and the District of Columbia between 1990 and 2010. Guardians also stole $5.4 million in assets from their wards in that period, the GAO said. (The GAO is currently working on an updated report.)
As the boomer population moves into old age, the numbers of people affected by guardianship and conservatorship will rise “tremendously,” said Jennifer Wright, a professor at the University of St. Thomas School of Law in Minneapolis who directs the school’s Elder Law Practice Group.
“There are more of us who are going to enter the danger age,” she said.
With as little as a single document — and in some cases, not even a court hearing — older adults can see their most basic rights stripped away. They cannot vote, get married or get divorced. A family member or a stranger appointed by the court will decide where they will live, how their money will be spent, what health care they will get or not get, when they will go out, when and where they may travel and whom they are allowed to see.
Guardianships: Difficult to Challenge
Rarely is an “incapacitated person” or ward able to get a guardianship or conservatorship terminated — until death, that is. Franklin was, in that sense, very lucky.
“Go ahead and see what you can do, because you have been deemed incapacitated, so everything you say or do is meaningless,” said Brenda Uekert, principal court research consultant with the National Center for State Courts. “You can’t even get an attorney, because a judge has already determined that you don’t have the ability to make decisions for yourself.”
Those who do try to fight often end up paying exorbitant amounts of money.
“Many families go bankrupt because they believe if they hang in there long enough the system will work for them, and it doesn’t,” said Elaine Renoire,
a director of the National Association to Stop Guardian Abuse in Loocootee, Ind., a victims’ rights group. The No. 1 complaint she hears: guardians who try to isolate older adults from their loved ones.
In her 2014 book, The Con Game: A Failure of Trust, business professor T.S. Laham of Diablo Valley College in the San Francisco Bay Area wrote that America’s guardianship system is “an open invitation to potential abuse.” (Next Avenue wrote about the book last year.)
Definitions Inconsistent, Numbers Elusive
What is meant by the terms “guardian” and “conservator” varies depending on the state. National groups working on reform efforts use “guardian” to refer to a person appointed by the court to make decisions over an individual and “conservator” to refer to a person appointed to handle the estate. Some use the terms interchangeably or use one to cover both situations.
It is difficult to impossible to know how many people are under guardianship or conservatorship in the United States, experts said. Many states do not do comprehensive record-keeping. A 2013 AARP report gave a “best guess” estimate of the number of adults under guardianship nationally at 1.5 million, but added the data “are scant and vary in quality.”
Despite the lack of statistics, those familiar with the system say the vast majority of guardians and conservators, perhaps 80% or more, are relatives of the incapacitated person.
Idaho and Minnesota are the only states that track the amount of money being controlled by guardians or conservators; the combined total for just those two states is over $1 billion, according to Uekert.
By David Disponett on 09/25/2017 10:21 AM
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