How to Protect Yourself or a Loved One From an Abusive Guardianship
Getting key legal documents in order is the best bet
Most of us don't think we would ever end up in a nursing home against our will. We can't imagine having our hard-earned savings drained by someone assigned to take care of us. We would never believe that we might someday be kept away from the people we love the most.
Ordered by a judge, a guardianship or conservatorship is ideally a protection for older adults. But too often, it is a drastic measure often prompted by warring relatives, nursing homes that want to get paid or a "friend" who gains the trust of an older adult in order to take advantage of him or her. It's based on a legal determination that the person is "incapacitated" and needs someone else to make decisions.
But there are things you can do now to make sure that becoming a victim of guardianship abuse does not happen to you or a loved one.
Not only can guardianships and conservatorships be exploitive, the process is public, expensive and time-consuming, said Naomi Karp, senior policy advisor at the Office of Older Americans of the Consumer Financial Protection Bureau in Washington, D.C.
The key to avoiding an abusive guardianship — which is likely to be extremely difficult to escape from if it happens — is to plan ahead.
Karp and other experts advise taking the following steps (you can find a list of resources at the end of this article):
- Create a durable power of attorney for finances. This is a document in which you name a person to make decisions for you if you cannot. (A regular, or “nondurable” power of attorney ends if you lose mental capacity.) For instance, if you are severely injured in a car accident or incapacitated by a stroke, your “agent” or “attorney-in-fact” will be able to sign financial documents, pay bills and buy things you need.
- Create a durable power of attorney for medical care. With this document, also referred to as an advance directive, you designate a trusted person to make health care decisions for you if you cannot. The “agent” or “health care proxy” can get access to your medical records, talk to doctors about your condition, make decisions about getting you into a hospital or nursing home and grant or withhold permission for tests and treatments.
- Think carefully about whom you appoint as your agent. Said Karp: “You want someone who has common sense and good judgment. You clearly don’t want to appoint someone who has had money problems,” because that person won’t be able to manage yours if he or she has a bad history managing finances.
- Make sure your prospective agent agrees, and give him or her the necessary information to do the job. One excellent resource: a series of guides from the Consumer Financial Protection Bureau on Managing Someone Else’s Money.
- Build in a safety mechanism. “I like to say, ‘Trust, but verify,’” Karp said. You can require in your financial power of attorney document that the person you appoint provide a periodic accounting with a third person you trust, she said. “It’s another set of eyes,” Karp noted.
- Revoke the document if you change your mind. If you decide the person you chose is no longer appropriate or cannot serve for some reason, you can revoke the original power of attorney and draft a new one naming a different person.
- Don’t put it off. Set aside some time for getting these documents filled out, or make an appointment with an attorney. If you plan to have an attorney draft a will, that’s the perfect time to ask him or her to complete the power of attorney forms as well, Karp said.
Karp acknowledged that this is an unpleasant topic. "A lot of people just avoid the planning and avoid discussing it in their families," she said. But not only does preparing help you protect your interests, it saves your loved ones from confusion, complicated paperwork and heart-wrenching decisions.
You can find useful planning information and other resources here:
- Planning for Diminished Capacity and Illness, by the U.S. Securities and Exchange Commission and the Consumer Financial Protection Bureau
- Giving Someone a Power of Attorney for Your Health Care by the American Bar Association; an easy guide that can be used in all but five states
- Making Medical Decisions for Someone Else: A How-To Guide by the American Bar Association
- Toolkit for Health Care Advance Planning by the American Bar Association
- Mind Your Loved Ones smartphone app by the American Bar Association
- The Conversation Project, begun in 2010 by former Boston Globe columnist Ellen Goodman and others, to help people talk about their wishes for end-of-life care; resources include the Conversation Starter Kit
- Advance Care Planning tips from the National Institute on Aging
- Five Wishes, a living will by Aging With Dignity ($5 charge)
- Living Wills: A guide to advance directives, health care power of attorney, and other key documents by Harvard Medical School (available for purchase)
- Guardianship basics, by Center for Elders and the Courts
- Choosing Your Health Care Agent, by Nolo.com
- Financial protection for older Americans, resources from the Consumer Financial Protection Bureau
For information on guardianships and efforts against abuse, check these websites:
- Guardianship/Conservatorship Resource Guide from the National Center for State Courts
- National Center on Elder Abuse
- National Guardianship Association
- Center for Guardianship Certification
- National Association to Stop Guardian Abuse
If you or a loved one is being abused, call your local adult protective services agency; you can find the appropriate contact for your area at www.eldercare.gov or call 800-677-1116.
This article was written with support from the Journalists in Aging Fellowships, a program of New America Media and the Gerontological Society of America, sponsored by the Retirement Research Foundation.