Preventing Abuses in Guardianship Cases

Although the appointment of guardians can be traced back to Roman times, the development of guardianship in the United States was influenced most heavily by English common law. In its earliest form, the lord of the manor in England or, in some cases, the king took over management of the person and property of orphaned minors, as well as of people with mental illness or intellectual disability when their condition rendered them unable to manage their own affairs. The courts gradually assumed oversight responsibilities, appointing guardians who were charged to protect the best interests of their wards (4). As adapted in the United States, guardianship is regulated by state law, with all jurisdictions providing for court appointment of guardians in appropriate cases.

A petition for guardianship can be brought by an interested party, often a family member. Such petitions are usually accompanied by a physician’s or mental health professional’s certification of the respondent’s incapacity. In some states, an independent investigator will be appointed to assess the validity of the claimed incapacity. All states require a hearing, usually with the allegedly incompetent person present, at which evidence of incapacity is presented and can be contested. If the standard of proof is met for a determination of incapacity, the court will appoint a guardian to act for the incompetent person. Most guardians are family members, but when no family member is willing or available to assume the responsibility or when there is some contraindication to familial involvement, courts can appoint unrelated persons to fill the role. In some states, courts maintain lists of attorneys who are willing to serve as guardians. Other jurisdictions rely on business entities that offer professional guardian services to large numbers of people or on elected or appointed public guardians (5). Guardians’ fees are typically charged to the assets of the person under supervision, although states may make special provisions for people who are indigent.

Guardianships can be plenary—that is, the guardian can be granted full decision-making powers over a ward’s person and property—or limited to those functions that the incapacitated person is unable to perform. When a person is deemed able to make personal decisions, such as about where to live or when to seek medical care, a guardian’s powers may be limited to managing the person’s assets. All states permit, and some states require, courts to consider tailoring the powers of a guardian to the specific deficits manifested by the allegedly incompetent person. For example, a person experiencing hoarding disorder, whose difficulty in parting with possessions has repeatedly resulted in unsanitary and unsafe living conditions, could have a guardian appointed solely to manage their living space. However, although comprehensive data are not available, there are indications that limited guardianships are used far less frequently than they could be. A study in the District of Columbia, for example, found that 84% of guardianships were plenary, and Iowa data showed that limited guardianships were used in only 1%–2% of cases (6).

The highly decentralized nature of the guardianship system in the United States makes the system hard to characterize. Roughly 1.3 million Americans are under guardianship, with perhaps 180,000 new petitions filed each year, although these figures are based on extrapolations of data from the small number of states that keep comprehensive tallies. Estimates of the assets under the supervision and control of guardians, based on similar extrapolations, are approximately $50 billion (7). Data on the frequency or extent of exploitation by guardians are similarly inadequate. A 2014 survey of a nonrepresentative sample of local courts reported that “two-thirds of court respondents (64%) indicated that the court had taken actions against at least one guardian for misconduct, malfeasance, or serious failure to fulfill his or her obligations in the past three years” (7). However, media reports of abuses by guardians, such as the examples at the beginning of this column, suggest that malfeasance can go undetected for extended periods and affect large numbers of vulnerable persons.

Over the past half century, largely as a result of media exposés, legislatures and courts have become more sensitive to the possibility of misconduct by guardians entrusted with ensuring the well-being of persons who are unable to act for themselves (8). The most commonly used tool for preventing financial abuse is a requirement for guardians to file an annual accounting with the courts, which roughly 80% of states mandate (the remainder either require biennial reports or allow the judge to determine the interval) (9). However, reports are not a perfect method of oversight. Many courts lack personnel with accounting experience who can meaningfully review the reports. Sometimes court personnel are so overwhelmed with filings that they are unable to review the reports in a timely fashion. A common format may not be required, leaving court personnel to hunt through the accounting reports for relevant data. And in many cases, because courts may lack the information technology to track when filings are due or to notify guardians who are tardy with their submissions, reports can simply go unfiled, sometimes for years (9).

Fees and expenses for guardians can be another source of abuse. Most states allow “reasonable compensation” but do not set specific standards. Fees are calculated on an hourly basis, which for lawyers appointed as guardians could be as much as $600–$800 or more per hour, typically charged to the assets of the ward. Guardians’ hours may include time spent talking with concerned family members, traveling to see the ward, preparing annual accountings, and even contesting efforts by the ward to terminate the guardianship. The lack of careful oversight of these fees, payment for which guardians themselves may simply draw from the ward’s accounts under their control, can result in exorbitant charges that substantially deplete the assets of the ward. This happened in one Indiana case, in which the guardian’s annual bill totaled 91% of the ward’s limited income, and in a high-profile case in New York City, in which fees charged against the account of a wealthy, elderly artist came to several million dollars (10).

Guardians are often responsible for the welfare of the ward, not just management of the ward’s assets. Yet some professional guardians carry enormous caseloads, exceeding 500 persons under their supervision, making it impossible for them to properly monitor their wards’ well-being. Family members who are concerned about the oversight being provided by professional guardians can be prevented from having contact with their loved one. And life-changing decisions, such as implementing a do-not-resuscitate (DNR) order for the ward, may be made for the convenience of the guardian rather than in the ward’s best interests. Such appears to have been the case for a Florida guardian with hundreds of wards who was arrested for elder abuse and neglect. One of her older adult wards died after the guardian had a DNR order entered for him and then allegedly told the ward’s doctors to cap his feeding tube (3). Although courts generally require annual reports about a ward’s welfare, actions like these, with immediate, drastic, or irreversible consequences, often will not require court review before they are implemented.

Motivated in part by multiple accounts of misconduct by guardians, the Fourth National Guardianship Summit, convened by the National Guardianship Network in 2021, brought together judges, lawyers, advocates, guardians, and others with an interest in the guardianship process to discuss reforms that would improve the methods of ensuring guardians’ accountability. Among the recommendations generated at the summit were to implement statewide data collection systems and standardize the forms for financial management plans and personal care plans that are to be filed at the inception of a guardianship and updated annually. The recommendations also included regular reviews and verification of guardians’ reports, periodic visits of the ward to assess their well-being, an annual in-person review before a judge with independent legal representation for the ward, and establishing a complaint process and an independent statewide investigative body to follow up on allegations of malfeasance by guardians (11).

Various jurisdictions may serve as models for a number of these approaches. Minnesota, for example, has established a centralized audit team to provide statewide review of guardians’ financial reports. To facilitate audits, guardians are required to enter all transactions made on the behalf of their wards into a software program that auditors can monitor in real time (12). Several similar programs exist at the county level in other states as well, which sometimes rely on volunteers with accounting backgrounds to monitor filings (12). Another jurisdiction where volunteers play a role in guardianship oversight is Utah. Utah judges, for example, can appoint volunteer “court visitors,” usually retired professionals, to investigate the status of wards in particular cases, often when guardians have failed to file required reports. Court visitors are empowered with a court order that grants them access to medical and financial records, as well as to the premises where the ward lives (13). By visiting wards in person, court visitors can investigate the wards’ status, hear their complaints, and explore the appropriateness of guardians’ expenditures (13).

Preventing the neglect of wards’ interests and financial abuses is more desirable than detecting such problems after the fact, especially given that misappropriated assets may be unrecoverable from guardians who have spent them. Some courts provide newly appointed guardians, usually family members without previous experience in the role, with instructions and information sheets outlining their duties, and states have developed resources such as videos, Web-based tutorials, and other educational materials on guardianship duties (13). New family guardians in Florida must complete an 8-hour course that addresses legal duties; adults’ rights; local resources; and the preparation of plans, reports, and accounts. Fourteen states require professional guardians, who take on guardianship in lieu of family members, to be certified (which in some jurisdictions involves passing an examination), and they may need to complete continuing education about the role as well. Professional guardians in Florida, a state with a large population of older persons and an extensive guardianship system, must take a 40-hour course before certification; Washington State requires 90 hours of training for professional guardians (13).

The elephant in the room, as the frequent use of volunteer auditors and visitors suggests, is the inadequacy of funding for systems that would educate, monitor, and discipline guardians. In the United States, the number of petitions for guardianship appears to be increasing, a trend that’s likely to continue given the aging of the U.S. population (13). To prevent even more widespread abuse of a system intended to protect the well-being of people who cannot protect themselves, it is essential to invest in approaches that will reduce guardians’ misuse and abuse of their powers.