How to Fix Conservatorship in America

Britney Spears' newsy and disheartening conservatorship nightmare has brought to public consciousness the immense power that court-ordered guardians wield over their charges and raised alarms about the potential for abuse. And now — finally — thanks to the sad story of the 39-year-old pop star, efforts are underway to tackle the longstanding problems with conservatorships and guardianships across the country, generally controlling lives of older adults deemed incapable to manage their affairs.

The public policy concern is particularly acute with the aging of the population, since America's oldest elders may be especially vulnerable to abuse and exploitation when they can no longer handle their finances or their medical issues. (The words "conservatorship" and "guardianship" are often used interchangeably. In general, a legal guardian has the power to make a wide range of personal and medical decisions while conservatorship is often limited to financial matters.)

"Whenever you have money being contracted in third-party hands, there is a potential for abuse," says Katherine Pearson, a professor at Dickinson Law at Penn State University.

Adds Pamela Teaster, director of the Center for Gerontology at Virginia Tech University, guardianship represents "a loss of civil rights."

The experience of Britney Spears with her 13-year conservatorship has disturbed Congressional lawmakers from both sides of the political aisle, including unlikely political bedfellows, Senators Elizabeth Warren (D-Mass.) and Ted Cruz (R-Texas).

Warren and Sen. Bob Casey (D-Pa.) want the Biden administration to investigate the sorry state of conservatorship in America. And Representatives Charlie Crist (D-Fla.) and Nancy Mace (R-S.C.) just introduced the bipartisan "Free Britney Act," also known as the Freedom and Right to Emancipate from Exploitation Act.

That bill would: give people under guardianship the right to ask that a court-appointed private guardian be replaced with a public guardian; assign an independent caseworker to those in conservatorship or guardianship and mandate states to update their databases on how many people are in conservatorship. Records about conservatorship are pretty scarce.

"Abusive conservatorships can be an unending nightmare, and tragically we don't know how many people are being held captive against their will under the broken guardianship system," said Crist in a statement. "We do know, however, that we need federal safeguards to protect persons under guardianship from abuse and exploitation."

The pressure for change is building, and not just in the Capitol.

Many of the reforms under discussion largely focus on improving the existing court-centered infrastructure, although there is also backing for alternative approaches to guardianship. (One example of that: a novel process known as eldercare coordination that is being tried in a few states; the Next Avenue article, "Could Eldercaring Coordination Be the Answer to Guardianship Problems?" describes it. )

Among the conservatorship reform ideas circulating are national standards for conservators; improved training of guardians; better legal representation for those unable to afford their own counsel; constant monitoring of conservatorships so rights of people being protected can be restored quickly when necessary and better data collection.

Taken altogether, changes like these require more money and, equally important, greater attention paid to the flawed system, where some conservators take advantage of people they're supposed to be assisting and even steal from them.

"The problems lie in the implementation of the laws and in whether they create the right systems to encourage desired behavior," Teaster said in testimony before the Senate Special Committee on Aging in 2018. (Little has changed to improve the system since then.)

To be sure, guardianship is complicated, and the process involves difficult, nuanced judgments between supporting individual autonomy and protecting the vulnerable.

State and local courts are generally responsible for the guardianship system. Guardians are often family members, but state courts also appoint private guardians for people with assets and public professionals for lower-income individuals. Guardianships include many older people, as well as younger children and adults dealing with intellectual or developmental disabilities or both.

Once a guardian is appointed, it can be difficult to end the arrangement, as we've seen in Spears' case.

Guardianships and conservatorships can be extremely beneficial for families, when handled properly.

"Often, guardianships go well. The people who are managing the money are committed to doing the right thing," says Pearson. "You never hear about the cases that go well."

That said, the guardianship system has a troubled history. And when abuses happen, the stories are chilling.

A 1987 year-long Associated Press investigative report into guardianship practices nationwide highlighted the system's deep flaws. "The nation's guardianship system, a crucial last line of protection for the ailing elderly, is failing many of those it is designed to protect," the report noted. The investigation "found a dangerously burdened and troubled system that regularly puts elderly lives in the hands of others with little or no evidence of necessity, then fails to guard against abuse, theft and neglect."

The searing investigation spurred a string of reforms among state legislators in the 1990s, with the American Bar Association, AARP and other organizations weighing in with ideas.

Language evolved, and terms like "ward" were retired; terms like "competency" replaced "capacity." The courts also took a somewhat more active role monitoring guardians.

"This legal momentum brought guardianship law to the fore as one of the leading issues in the developing field of elder law in the U.S.," wrote Israel Issi Doran, a gerontology professor at the University of Haifa.

There's also been a growing desire to bring the person under conservatorship into the process more, to involve them as much as possible in their guardianship arrangements.

"Over the last decade, the trend has been toward giving the protected person as much autonomy as possible, more of a joint process," says Pearson. "Most states haven't moved in this direction as a matter of law, but are taking important steps to encourage this as best practices."

Troubles continue to erupt, however.

Take a 2016 report from the Government Accountability Office (GAO). In "Elder Abuse: The Extent of Abuse by Guardians is Unknown, but Some Measures Exist to Help Protect Older Adults," the GAO documented how little was known about elder abuse by guardians.

The agency identified hundreds of allegations of abuse, neglect and exploitation between 1990 and 2010 and, after scrutinizing 20 of the cases, found guardians had stolen or otherwise improperly obtained $5.4 million from 158 incapacitated victims, "many of whom were older adults."

A frightening 2017 article by Rachel Aviv in The New Yorker powerfully showed how private guardians in Clark County, Nevada took financial advantage of vulnerable older adults.  

There is an agreement about one needed reform: Data. As public policy wonks like to say, we can't understand what we don't measure.

According to the U.S. Department of Justice, there are some 1.3 million adults with guardians who control about $50 billion in assets. But the national data likely understates the enormity of system as well as its problems, experts say.

In the 2017 New Yorker article, Teaster called the guardianship system "'a morass, a total mess," adding that "it is unconscionable that we don't have any data, when you think about the vast power given to a guardian."

Asked over Zoom earlier this week whether she still held that judgment, Teaster responded, "The guardianship system is still a morass. We don't know the people under guardianship in any systematic way."

Until the conservatorship system's problems are addressed, how can you and your loved ones protect yourself from potential abuse?

There are critical steps individuals can take to minimize the odds of ending up in conservatorship.

For example, get a durable power of attorney drawn up to assign someone the authority to manage your finances if you become unable. Similarly, get a health care directive so someone can make health decisions for you if you can't. A 2019 Merrill Lynch and Age Wave survey found that only 18% of Americans 55 years and older had a will, health care directive and durable power of attorney.

Next Avenue recently created a free online resource to help you do things like this with checklists and resources. It's called "Fast-Forward: Take Control of the Rest of Your Life."

With proper estate planning documents in place, "if someone loses capacity, they have set up a mechanism to manage the estate," says Kate Wilbur, a gerontology professor at the Leonard Davis School of Gerontology at USC. "Talk with family members about your wishes. Especially if you want a family member to act as your agent."

Britney Spears has brought welcome attention to America's inadequate guardianship system. She is hardly representative of the typical conservatorship situation, with her fame and her wealth, of course.

But interest in her situation may be what's needed to push legislators to better fund the system and to back needed reforms, especially selecting, training and monitoring guardians.

A comprehensive national database would help, too. After all, does it really make any sense that you can go online and easily track an online package, yet the information to track the safety of vulnerable Americans under guardianship is sparse?

Chris Farrell is senior economics contributor for American Public Media's Marketplace. An award-winning journalist, he is author of the books "Purpose and a Paycheck:  Finding Meaning, Money and Happiness in the Second Half of Life" and "Unretirement: How Baby Boomers Are Changing the Way We Think About Work, Community and the Good Life." Read More