Who Guards the Guardians of the Vulnerable Elderly?

Photos by Yuri Dojc and Tessa Codrington/Getty Images

For decades, the news media have reported horror stories of unscrupulous or neglectful court-appointed guardians who take advantage of vulnerable elders. As a result, many states are making significant improvements in their laws, aimed at preserving older people’s autonomy as long as possible and protecting them from harm if guardianship is imposed. At the same time, legal experts warn that, unless jurisdictions allocate sufficient funds to train, educate and monitor court-appointed guardians, problems will persist and people will suffer.

“The laws have improved exponentially, but implementation is always a problem,” says Pamela Teaster, professor in the Graduate Center for Gerontology and the Department of Health Behavior in the College of Public Health at the University of Kentucky. Too many programs are simply underfunded and understaffed, she adds.

Being placed under guardianship is the last resort for older people who are unable to make decisions for themselves. Once appointed, guardians (also called conservators) have the authority to manage their wards’ finances, health care and life choices. With that authority comes serious legal responsibility. “Under the law, guardians have a very high duty of care and accountability, which is a very serious matter,” says Erica Wood, assistant director of the American Bar Association’s Commission on Law and Aging. The problem, however, is that very little information exists to document how well—or how poorly—most guardians perform.

Indeed, basic information regarding guardianship is surprisingly scarce. Nationally, no one knows how many people are under guardianship or who is serving them. And although several states have taken active steps to improve guardianship laws, few use computers to track actual cases.

In January, for example, a report in The Boston Globe found that due to Massachusetts’ “antiquated computer system,” there was no way to know how many individuals were being placed under guardianship. The reporters discovered that many people had improperly lost their independence but felt they had little recourse to get it back. Other problems included a lack of legal representation for those alleged to be incapacitated and poor enforcement of requirements intended to keep guardians accountable. Reformers are trying to tackle both issues.

Because of recent changes in their laws, many states now require legal representation at court hearings for people who are alleged to be incapacitated. In addition, some states, including Florida, require that three professionals, such as a psychologist, a nurse and a social worker, individually visit the person and make a recommendation to the court. Even then, says Michelle Hollister, executive director of the Statewide Public Guardianship Office in Florida, a person doesn’t automatically get a guardian simply because he or she is incapacitated. “They look at less restrictive alternatives,” Hollister says, such as appointing a trusted friend or relative to hold a power of attorney or to act as a health-care proxy.

If guardianship must be imposed, some courts show a willingness to limit guardians’ authority, when feasible. In 2007, for example, Connecticut significantly improved its guardianship law to ensure that individuals are given proper notification of court hearings and that they receive legal representation—or knowingly waive that right. To impose guardianship, the court now must find that the individual’s financial affairs are not being adequately managed and that guardianship is the least restrictive option available.

In 2006, Wisconsin passed a landmark reform that strengthens due process protections and requires the court to consider a number of factors before imposing guardianship. Such factors include: How well does the person manage the activities of daily living? Might his medication be impairing his behavior or judgment? And what are his preferences about having a guardian?

“Guardianship is a tremendous intrusion into someone’s life,” says attorney Naomi Karp, strategic policy adviser with the AARP Public Policy Institute. “We want to maintain people’s autonomy as much as possible. Let’s make the remedy fit the need.” A person who is unable to handle complex financial transactions, she adds, may nonetheless be able to make medical decisions.

States are also beginning to raise the bar on who becomes a guardian. Guardians may be family members, professionals who are paid by the individual’s funds or public guardians for the indigent.  

Several states have adopted professional standards of practice and a code of ethics developed by the National Guardianship Association, a Bellefonte, Pa.-based nonprofit dedicated to promoting standards of excellence. Other states are requiring non-family guardians to take an exam developed by NGA’s sister organization, the Center for Guardianship Certification. It tests their skills and knowledge of guardianship principles.

Wisconsin and Florida are among the states that now require background checks of guardians. Michigan is now considering legislation to restrict a guardian’s ability to sell his ward’s property or assets and, in some cases, require that the guardian be bonded. AARP Michigan testified on behalf of the legislation.

Other states are creating systems to improve accountability once guardianship is ordered. “Some courts just wash their hands of [guardianship cases],” says Wood. “They don’t really have much, as far as monitoring. Other courts take a stronger role in tracking the cases and making sure they receive annual reports.”

In a 2007 AARP Public Policy Institute report, Guarding the Guardians, Karp and Wood identified several promising examples of court monitoring. They point out that most jurisdictions now require annual reports on the status of wards and an accounting of their finances. And although nearly three-quarters do not use basic computer technology to make sure guardians are complying, some do. Ramsey County, Minn., and Broward County, Fla., are among those using computers to red-flag problems or to remind guardians by e-mail to file reports. In Maryland, a public guardianship review board keeps tabs on all incapacitated people served by a public guardian. It reviews cases every six months to consider whether the guardianship should be modified or terminated. The board includes both medical, legal and social services professionals and members of the public, including one person who has a disability.

Another area that has seen some improvement involves visiting. Although many courts have no “eyes and ears,” says Karp, Florida is one state that requires guardians to visit their wards at least four times a year. Rockingham County, N.H., recruits AARP members as volunteer visitors to check in on those who are incapacitated.

While welcoming steady improvements in state laws, experts stress that the system in most states is chronically underfunded. The federal government could assist cash-strapped states by funding guardianship monitoring practices, training and education programs, and computerized data collection, among other pressing needs.

“This is your decisional life,” says Teaster, of the University of Kentucky. “When you take that away, you’ve taken away a person. If we’re going to do that, we better do it right. We owe people no less.”