These high-profile cases have led to growing calls for reform. Disability rights organizations also have long advocated for less restrictive alternatives to guardianship for people with disabilities. Guardians, in some states called conservators, impact a large swath of the population: In 2018, there were an estimated 1.3 million active guardianship or conservatorship cases nationwide, according to a National Council on Disability report.
While the systems vary by state, a guardian or conservator is a court-ordered representative who makes financial or healthcare decisions for a person deemed incapable of properly caring for themselves. People with intellectual and developmental disabilities, the elderly or those who have experienced traumatic brain injuries are most likely to have guardians appointed.
A National Center for State Courts study of Minnesota’s conservatorship system found that women were disproportionately exploited by their conservators, and that the majority lived in assisted living, memory care or skilled nursing facilities. Most of the cases involved people taken advantage of by their own family, primarily their children, and half the affected people were under 65, the study found.
Nina Kohn, a Syracuse University law professor and a distinguished scholar in elder law at Yale Law School, spoke with the Center for Public Integrity about abuse in conservatorship, reform efforts and how people can protect themselves.
The interview with Kohn has been edited for length and clarity.
Q: Who is disproportionately impacted by financial guardianships?
We know that some guardianships happened very early in life. Historically, guardianship has been treated almost like a rite of passage for young adults with intellectual disabilities, who were assumed to be incapable of making decisions for themselves.
Increasingly, today there is recognition that that’s not proper and that even individuals with substantial cognitive and intellectual disabilities can make decisions for themselves, especially with support.
Another category of people you often see this with are people with dementia who have progressive cognitive decline that’s making it harder and harder for them to manage their own affairs. And then a third primary category is individuals who are experiencing some level of mental illness or non-progressive cognitive challenge acquired later in life, and that could be through a traumatic brain injury.
A common pattern you see with petitions for conservatorship or financial guardianship is that you have an individual who has substantial funds and other people are expecting to benefit from those funds. Then the individual does something, which puts those who would be beneficiaries on edge, and they become concerned that those funds they were expecting to benefit from won’t be there for them. Often these are family members expecting to inherit from an older family member.
Legally, nobody has a right to inherit from you, except for some very limited protections for dependent children and spouses.
You also sometimes see that with non-family members outside of an inheritance concern. That could be business partners, it could be service providers.
The fact that you’ve been the victim of one thing [like a financial scam] doesn’t mean that you don’t have the ability to make decisions for yourself. And when it starts to be treated as enough to show that a guardianship has to be imposed, you risk double victimization. First the individual is victimized by being exploited and then they’re victimized by having their rights removed as a consequence of victimization.
Q: Is there any data that shows the demographics of who’s vulnerable to financial guardianships?
We have woefully inadequate data in the United States on this issue. There is no national source of guardianship data. Many states are not keeping data on who’s under guardianship, how many people are under guardianship or why they’re under guardianship — it’s a major problem in terms of understanding this issue.
We do know that guardianship is a common intervention offered by Adult Protective Services. Guardianship is sometimes the right choice. It’s rarely the right choice, but sometimes it is.
So older people with progressive cognitive decline and individuals who haven’t done advanced planning are at increased risk.
Let’s imagine that I developed dementia in my 60s — will I need a guardian? That’s going to depend on what else I’ve put in place to handle my affairs. If I have a power of attorney in place or a trust in place — things that are adequately taking care of making decisions for my body and my property — I don’t need a guardian.
Individuals who haven’t done that advanced planning, which is disproportionately going to be less privileged members of our country — think about just access to legal services — are more likely to be at risk of having a guardianship imposed.
Unlike advanced planning tools, in which the person isn’t giving away the right to make decisions, once a guardian is put in place, the individual loses the right to make any decision and the only way to reverse that is to go to court.
And we know that courts are doing, unfortunately, a highly inadequate job by and large at monitoring these arrangements, making sure the guardians are making the decisions that are right for the individual, that are sensitive to that person’s preferences, wishes, values, culture.
Q: What are some other ways in which a financial guardianship can be abused?
A guardianship being imposed where it is not in fact necessary to meet the person’s needs or where a guardianship is imposed that is broader than it needs to be.
Let’s imagine a hypothetical person who has lots and lots of money. If they are put under a broad financial guardianship, they may lose the right to manage any money whatsoever. For this individual, $1,000 a week may be chump change. And thus putting a guardianship into place that doesn’t even allow them to spend smaller amounts of money, or control things that don’t put them at risk, should be seen as abusive.
And for your lower-income individual, there may still be an amount of money that they could manage without any substantial risk of undermining their ability to meet their own needs.
Then there’s the bad acts by guardians category. For example, laws will typically require the guardian to make the decision the person would make if able. If the guardian says, “I’m just going to make the decision that I think’s best, regardless of what you would have wanted,” or “I’m going to make whatever decision is easiest for me,” that could be abuse.
And then another category of abuse is a guardian charging unreasonable fees.
Q: Are there ways in which the laws or the rules of different states exacerbate these abuses?
This is an area where substantial law reform is needed urgently.
One issue where there’s a need for reform is the standard for appointment of a guardian or conservator in the first place. Every state in the nation allows for limited guardianship, which is a guardian appointed to only make some decisions and not all decisions a guardian could be appointed to make under state law.
But many states don’t prohibit courts from imposing plenary [or absolute] guardianships, even when a limited guardianship would meet the person’s needs. So we need to make sure that it is unlawful for courts to strip more rights than is absolutely needed.
And we need to make sure that, before any rights are stripped, all less restrictive alternatives have been ruled out as possibilities. Another thing we need to do is really make sure that there are good due process protections in place for individuals.
Typically, states will provide a hearing, a notice and evaluation before a guardian is imposed. But often, a lot of those critically important civil rights protections can be circumvented by requesting a temporary guardianship, or sometimes it’s called an emergency guardianship. And so the individual can be stripped of the right to make decisions before those important due process protections are provided. That is especially a problem if the standard for appointing emergency guardianship is too lax, or the emergency guardianship can trundle along for a long time.
Court monitoring is a huge issue. What are courts doing to make sure that guardians are doing the right thing by those that they’ve been appointed to protect and to make sure that abusive practices aren’t happening?
Right to counsel is another tremendously important issue and something I think the Britney Spears case showed people. Some courts are denying individuals the right to choose their own counsel.
Another problem is around restoration of rights: Once you’ve been stripped of your right, what do you have to show to get it back?
There is model legislation that would address each of these concerns: The Uniform Guardianship, Conservatorship and Other Protective Arrangements Act created by the Uniform Law Commission. I served as the reporter for that act, which means I was the principal drafter.
Q: That leads me into my next question, which is on efforts to improve the system. Could you talk more about this model legislation and any other state efforts to try to improve the system?
At least since the early ’80s, we’ve seen efforts in place to try to improve guardianship. Initially, we saw an effort to try to change the rules, and increasingly, I think we need to change systems and incentives within the systems. My work really focuses on trying to realign incentives so that it’s easier to do the right thing and harder to do the wrong thing.
The most significant efforts, right now, are around adoption of the Uniform Act on guardianship, an act that was created with input from all the major stakeholder groups — entities representing older people, people with disabilities, judges and state courts, attorneys, family members aggrieved by guardianship.
The U.S. Senate [Special] Committee on Aging has recommended its adoption. The barrier to adoption is … that some of the reforms would take additional money or court time, and courts typically don’t want anything that’s going to take additional time and money unless they’re going to get a lot of money to do it. And then I think often people don’t understand why these changes are necessary.
Because guardianship has gotten, in some cases legitimately, a bad rap, sometimes the advocates say, “Let’s just get rid of all guardianship.”
I understand that perspective, but unfortunately sometimes the desire to abolish gets in the way of true reform.
Q: You mentioned that service providers have triggered guardianships. Are there examples of financial institutions doing this?
I teach a case that is really egregious where an attorney petitioned for guardianship over his own client, and his evidence was that his client had fired him, and “who could possibly fire me?” Bad decision-making isn’t a basis for guardianship. We get to make really bad decisions. Guardianship is only when we’re at real risk because of those bad decisions and we don’t understand that we’re at risk.
One of the issues here in trying to understand the guardianship system is that many of these cases are under seal.
This can be very stigmatizing and traumatizing, and putting out all this really private information can benefit fraudsters, who can then use it to engage in exploitation. But it also makes it really hard to get visibility and accountability.
If you can’t see what the courts are doing, how do you hold the courts accountable?
As the person on the street, it is really important to put in place advanced planning documents. The most important one is called a power of attorney for health care, or sometimes called a health care proxy, that says who will make health care decisions for you, if you can’t make them for yourself. It’s a very low risk document because it’s only used when you lose capacity. Unlike a power of attorney for finances, it can’t be used until you lack capacity.
There are major racial gaps on who completes advanced directives. In part, that’s consistent with distrust of health care providers, often well-founded.
This is one sort of advanced planning tool that has low costs and can be done by lay people that can avoid guardianship. For older adults, or people who are anticipating more decline in abilities in the near future, then a power of attorney for finances may also be a very good idea. Putting that in place and trusts are good ways to avoid guardianship. Trusts tend to be for higher-net-worth individuals who are typically middle class and up.
Q: Is there anything else about financial guardianships that you’d like our readers to know?
If these issues concern you, I really encourage people to reach out to their state legislature.
I think we’ve seen enough problems to know that we need to fix the systems, and we need to change the incentives so that individuals aren’t stripped of their basic liberties unnecessarily. To the extent that seeing some of these horror stories can be a call to action, maybe there’s a silver lining.
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