Mar 5, 2021 • Richard Dahl; FINDLAW/BLOGS/LAW AND DAILY LIFE
Elder Abuse: Do We Need to Better Guard Against Court-Appointed Guardians?
The popular Netflix movie “I Care a Lot” tells a sordid tale about an evil fraudster who enriches herself by victimizing elderly people.
The icy villain, Marla Grayson (played magnificently by Rosamund Pike), is a court-appointed legal guardian for the elderly. She has built a busy and thriving agency that supposedly assists old people in the autumn of their lives, but the reality is nothing so noble. The movie makes it clear early on that Marla is a scam artist whose only interest in her elderly “clients” is how much money and how many assets she can extract from them.
Her method is simple: She bribes a physician to say that an elderly patient is unfit and then gets a judge to appoint her as the senior’s guardian. Just like that, Marla is free to place her clients in nursing homes. Once that’s done, she has total control over their lives, including draining their bank accounts and selling their property.
Guardian Abuse in Real Life
It’s a disturbing tale, to be sure. But hey, it’s just a movie, right?
The creepiest part of “I Care a Lot” is that – at least in many states – this kind of court-sanctioned elder abuse is real.
Certainly, most court-appointed guardians do properly protect the people under their care. But legal authorities point out that it’s a big system – 1.3 million adults under the care of guardians who control $50 billion of their assets – with remarkably little oversight, protections, or transparency.
The extent of guardian abuse is unknown, but authorities familiar with the issue say it’s a problem. In an article for The Hill, law professors Nina A. Kohn and David M. English say that reports of abuse like those depicted in the movie are all too common. And that, they say, is because our laws are too weak.
First, state laws allow courts to appoint “emergency guardians,” who have no obligation to notify the elder person or their family or friends of their appointment. Although some states say that individuals are entitled to notice before a guardian is approved, Kohn and English say courts frequently waive the notice. They also say that guardians are routinely appointed without the subject of the proceeding being present in court.
Second, guardians’ practice of immediately placing their wards into nursing homes and selling their homes is generally legal.
Third, even though courts are supposed to oversee guardians, they often fall under the guardians’ assurances that everything is fine and therefore fail to detect wrongdoing.
Karen Buck, executive director of the SeniorLAW Center in Pennsylvania, told The Guardian: “It is the state coming in and taking away your most fundamental decisions, your fundamental right to autonomy, and giving these decisions to someone else who may be a total stranger to you. So it is a very drastic measure and it just simply doesn’t get that much attention until there is crisis and scandal.”
Small Legislative Pushes
Although the movie’s writer and director J Blakeson says that he developed the screenplay based on multiple media accounts of elder abuse by guardians, the story of one grifter guardian does resemble that of the movie’s fictional Marla. In 2018, a Nevada legal guardian named April Parks pled guilty to six felony charges, including two for elder exploitation, that earned her 16 to 40 years in prison. Like Marla, Parks got leads from medical staff, secured emergency orders from courts, and showed up unannounced at her victims’ homes to tell them to pack their bags for their new home, an assisted-living facility.
Stories like that prompted the U.S. Senate Committee on Aging to call for an overhaul of the guardianship system in 2018, but not much has come of it. The committee issued a report that urged states to pass legislation including specific actions such as requiring more stringent monitoring of guardianships and greater protection of individuals subject to guardianship. But only two states, Maine and Washington, have adopted them.
The Uniform Law Commission, meanwhile, has adopted model legislation that lawmakers could consider if they’re thinking of providing their elderly citizens better protection from unscrupulous guardians. But if the past is any guide, most lawmakers don’t place guardianship reform as a very high priority on their to-do lists.
What You Can Do
Laws and legislation aside, there are things that individuals can do or keep in mind if they want to better protect older family members or friends.
The National Center on Law and Elder Rights (NCLER) points out that courts in all states maintain supervisory power over guardians. So if you suspect abuse, you may be able to petition for court action. Some states even have complaint procedures.
This does mean that you may have to do some investigation on your own, and NCLER provides some guidance on how to do that:
Make inquiries. Does the elderly person know and trust the guardian? Is their medical and personal care sufficient? Is the guardian paying the bills? Are there transactions that seem strange?
Review documents and accounts. It may be difficult to obtain court documents, which could be sealed and viewable only by parties to the case. But you may be able to petition a court to review the documents, which could reveal that a guardian is exceeding their authority.
Report to law enforcement or other authorities. A guardian’s breach of fiduciary duty could violate federal, state, or local laws on elder abuse or financial fraud. A growing number of states have licensing boards that include guardians; if you suspect abuse, reporting it to those boards may be a smart move. Also, some guardians serve as Social Security representative payees to manage SSA benefits or as Veterans Administration fiduciaries to manage VA benefits, so you might contact those agencies if you suspect abuse.
Most court-appointed guardians do their jobs properly and have their wards’ best interests in mind. Apparently, though, many do not. And, rightly or wrongly, if you suspect that a family member or friend is being abused by a guardian, the task of getting at least initial answers might fall on you.