The Guardianship System Has Risks You Should Know

As people age, their health declines and they may start having struggles with their mental faculties. Many families consider options like guardianship or conservatorship. But the court system used to appoint guardians is full of risks – including unscrupulous people out to steal your aging relative’s money. If you are aging or have an aging loved one, you need to know the potential dangers before you make decisions.

See When Conservatorships Go Wrong with Diane Dimond for a complete transcript of the Easy Prey podcast episode.

Diane Dimond is an investigative reporter who has worked in print, radio, and TV for many years. She has covered Capitol Hill and the White House, wrote and read the newscast for NPR’s All Things Considered, and even spent some time as a news anchor on Fox. This experience has given her a good working knowledge of how government works and how it doesn’t. Fourteen years ago, she started writing a syndicated column about crime and justice, her preferred topic. She has also written four books. Her latest is We’re Here to Help: When Guardianship Goes Wrong.

What Is Guardianship?

Guardianship is confusing. Diane wonders if it is deliberately so sometimes. To start with, different states use different terms. While some call it “guardianship,” others call it “conservatorship,” even though both names refer to the same thing. The whole process is managed by individual states, which means there can be vast differences from one state to the next.

Whatever it’s called, it happens when a court orders outside help for a vulnerable person. This could be because they are unable to care for themselves or are otherwise at risk. The person put under guardianship becomes a “ward of the court” and is often referred to as a ward. And to make matters even more confusing, there can be multiple guardians within the system. While frequently a single guardian handles all the affairs of the ward, that’s not always the case. Especially when the ward has a lot of money, the court may appoint multiple guardians to handle different aspects of the ward’s affairs.

When someone is put into guardianship … they immediately lose their civil rights because they’re declared incapacitated.

Diane Dimond

The aspect of guardianship that concerns many people is the fact that everything the ward has is confiscated by the court. The ward has been declared legally incapable of making their own decisions. All their money, estate, property, holding, investments, heirlooms, assets, and everything else are taken away and given to a guardian to manage on behalf of that person. The system has grown to the point where state courts confiscate $50 billion of property and estates from wards every year. That’s a lot of money – and naturally, it attracts a lot of criminals.

Problems in the Guardianship System

Guardianship is meant for scenarios where someone truly needs help. They may have memory issues or Alzheimer’s, be disabled, or have had a traumatic brain injury or stroke. In these cases, the system is designed so that a concerned person can file a petition saying, “This person needs help and I want to help them, so please give me the legal means to do so.” It is a necessary system, and it works very well when a loving, trusted family member is appointed guardian.

Unfortunately, Diane discovered that family members often aren’t appointed guardians. Many judges assume that if the case has come to the courtroom, the family is too dysfunctional to figure it out among themselves and a court-sanctioned stranger is a better choice. Sometimes that works – there are a lot of compassionate and caring guardians and conservators out there. But there are also a lot that are only in it for the money. And that’s where the problems happen.

How Cases Work

Judges are not trained in guardianship or conservatorship cases. It’s unique – not criminal or civil court that many judges are used to, but equity court, an entirely different entity. There is no trial, no due process, and often no witnesses called.

The process begins in the court when the judge receives a paper from a lawyer or other court officer. The paper is a petition saying that such-and-such a person needs a guardian for such-and-such reasons. Many petitions are exaggerated or contain complete lies designed to get guardianship in process. This petition, whether or not it’s true, is the only tool a judge has to decide to start the process or not.

Once the process begins, court-sanctioned guardians, the court visitor who reports to the judge, and medical people involved all work together. If they are all in it for the money, there is an element of collusion. Whether or not the ward needs guardianship, it’s best for all of their pocketbooks to get guardianship established. No one reports on the wrongdoing of anyone else involved, because the one who was reported would be excluded from the case and not get to charge their fees. These fees are paid by the ward. And considering that some guardians charge as much as $600 per hour, the estate can vanish quickly.

Guardianship can be a good thing, but … billions and billions of dollars over the decades have been quite literally stolen from wards of the court.

Diane Dimond

At this point, nobody keeps track of where the ward’s money is going. Guardians are supposed to file audits every year reporting where the money went. But many don’t file for years, or ever. And even when they are filed, nobody looks at them. Once guardianship is established, the ward has no rights and no protections from greedy guardians.

Famous Conservatorship Cases

There are a lot of famous people who have become wards of the court and were appointed guardians. Many of them worked out well. Actor Peter Falk, musician Glen Campbell, and Broadway producer David Merrick all became wards. But the most well-known case of guardianship is Britney Spears. She was a ward for almost fourteen years.

Diane doesn’t claim to know if there was a valid reason for it or not. But it finally was terminated because the Free Britney Movement brought her case to the headlines. She was able to testify in front of a judge, which is nearly unheard of. Often judges don’t see the wards they’re deciding about. She gave a heartfelt testimony and finally had her conservatorship terminated. But most people are unable to get it terminated once it’s established.

Getting Out of Guardianship

It is nearly impossible for someone under guardianship to get out because they have been declared incapacitated. They no longer have civil rights. There are only three states where wards have the right to their own lawyer during the proceedings.

Why doesn’t it change? Why doesn’t the state legislature pass laws or revamp the whole guardianship system? The answer is lobbyists: Lawyer lobbyists, guardian lobbyists, hospital lobbyists.

Diane Dimond

Many people ask why states don’t just do something about the problems with the systems. The answer is lobbyists. Hospitals, nursing homes, lawyers, conservators and guardians, and whole guardianship companies stand to make a lot of money from the system just as it is. They are all at the state legislatures saying that nothing needs to change – they’re here to help, the only people who want change are dysfunctional families who would do an even worse job caring for these vulnerable people.

Not all of them are corrupt. But in every state Diane looked at in eight years of investigation, she found groups dedicated to making guardianship as profitable as possible. They even have national conferences where they get together to give each other tips. A common tip lately is that guardians should become real estate agents, then they can use various tricks to convince the judge that the ward’s house should be sold and they can get commission on the sale. It has nothing to do with caring for the ward and everything to do with taking as much of their money as possible.

People who worked hard all their lives, saved their money, got their wills in place … got a daughter who loves them dearly and wants to take care of them in their old age, and poof, it’s all gone.

Diane Dimond

How to Protect At-Risk Loved Ones

If you have a loved one who is elderly, disabled, having memory difficulties, or otherwise at-risk, you can take steps to protect them. Get together as a family before it becomes an emergency. Discuss the options and what you might do. If there is dissent, don’t go to a lawyer right away. Try family mediation first. It’s cheaper, and maybe it will work.

A lot of guardianships start after family squabbles. Realize the person you’re hurting is the person you’re trying to protect.

Diane Dimond

Also keep in might who fighting will hurt the most. If you’re fighting over the best way to care for your elderly mother and she ends up with a court-assigned guardian fleecing her for every cent she has, she’s the one suffering most. Aim for family harmony if at all possible.

If you are elderly or otherwise at-risk, take a video of yourself explicitly saying what you want. Do you want a guardian, and if so, who? Have you set aside money to pay for 24/7 care so you never need a guardian? Who is your designated Power of Attorney? What do you want?

Put it all on video, because that video can be compelling to judges when it’s introduced to the court. Unfortunately, it can be difficult to get that into court since evidence isn’t required for guardianship hearings. You or your family members will need to hire a lawyer to take on the case and present it to the judge.

Ultimately, you can mitigate the risk, but you can’t entirely eliminate unscrupulous individuals. Just like you can’t stop scammers from calling you on the phone or emailing about that lottery you definitely won, you can take precautions, but you can’t eliminate all risk.

You can’t control the scams and fraudsters out there, but I’ll tell you want can be done. Prosecutors can start prosecuting these people.

Diane Dimond

How to Fix the Guardianship System

Right now, attempts to deal with the problems in the guardianship/conservatorship system are unfocused and scattered across different states. Some states have more problems than others. Florida, for example, has a huge problem because so many rich elderly people retire there. Some states are passing reform laws against isolating the ward – the guardian has to let family come visit. Some are trying to get caps on court fees.

Diane calls these laws “band-aid laws.” They’re trying to help and fix things a little, but they are small band-aids being put on a big open wound of a system with a lot of problems. There are no federal laws requiring anything because this is a state’s issue.

There are groups that are working to do something about this. The Center for Estate Administration Reform (CEAR), for example, has a huge push towards reforming the guardianship system. It’s run by a married couple, Rick and Terry Black, and they have counseled more than 5,000 families across the country on how to deal with terrible guardianships. The National Association to Stop Guardianship Abuse (NASGA), run by Elaine Renoire, is another organization working towards the same thing.

There are steps governments can take to make this system less exploitable and protect the people it’s supposed to protect. These are some things Diane thinks need to happen.

Make Guardianship Harder to Establish

The most startling thing to Diane through her research into guardianship is how easy it is to make it happen. Anyone can go to a lawyer and say, “This person needs help and should have a guardian,” even if they really don’t. Lots of lawyers will write up guardianship petitions.

There have been cases of people using the guardianship system for nefarious purposes. In New York, an 84-year-old woman had lived in her rent-controlled apartment for fifty years. Then her landlord got her guardianized so he could kick her out of the apartment and raise the rent. A mechanic in Texas had a wealthy elderly client who owed him $30,000 and wasn’t paying, so on the advice of his lawyer he petitioned for guardianship and became the client’s guardian. It took two years and a lot of money to fight, but the client’s family eventually got that guardianship terminated.

Anyone can file a petition for guardianship, including lawyers. Diane has found many cases where an elderly person goes to a lawyer to change their Power of Attorney or update their will. The lawyer talks to them and gets their information, then files guardianship for them. People think it can’t happen in America, but it does – all over the country.

Punish Predators in the System

Diane encountered many cases where an unscrupulous guardian was charged with a lot – several hundred counts of fraud, a dozen counts of abuse of an elderly person, a few counts of neglect, etc. But by the time the case got to court, the charges had been reduced to just a few counts of abuse and the predator who took advantage of a vulnerable person only got a few months of probation. If we really want this abuse to stop, we have to start punishing the predators.

It does occasionally happen. One guardian in Albuquerque stole $11 million from wards and eventually got forty-seven years in prison. A different guardian got sixteen to forty years in prison for neglect, fraud, and embezzlement. The latter case shows how little guardians are supervised by the court. This woman was guardian for many wards, and hadn’t ever filed the required audits for most of them. When she went to prison, the contents of her storage locker were auctioned off. When the buyer opened it up, they found the cremains of almost thirty wards. It didn’t matter what the wards had actually wanted, when they died she had them cremated and put them in a storage locker. That’s an example of how powerful and unsupervised guardians can be.

If we started really punishing these criminals that are working within the guardianship system, they would go somewhere else … and stop preying on these people.

Diane Dimond

Alternatives to Full Guardianship

Diane talks at the end of her book We’re Here to Help: When Guardianship Goes Wrong about what we can do, and also alternatives to guardianship. Why are the only options “complete independence” and “completely incapacitated with strict guardianship”? There’s a system called “supported decision-making” that can find a middle ground.

Most people who need help aren’t fully incapable of doing anything for themselves. They may be able to do most things independently, but just need a little help writing checks to pay bills, communicating on the phone, managing their Medicare plan, or getting transportation from place to place. Supported decision-making uses a big brother/big sister system of volunteers to help out these people who just need a bit of help.

Require Guardian Licensing

Another thing that states could do is require guardians to be licensed before they are allowed to hold guardianship for a ward. In her investigation, Diane found that only three states require any kind of licensing for guardians. She also found some guardians who were convicted felons, and others who had just graduated high school. Right now, the plumber who comes to fix your leaky pipe has more certification and licensing requirements than the guardians put in charge of someone’s whole life.

The plumber that comes into your house has to have more training, certification, and licensing than the guardian who takes hold of someone’s entire life.

Diane Dimond

Guardians should be required to get training before becoming guardians. At the very list, they should take courses on managing finances, senior care, and family dynamics. Some guardians have voluntarily gotten themselves certified, but there is no centralized certification board. These certifications could be just watching videos online for a certain number of hours. But at least it’s something – and it’s more than most states require.

Learn more about Diane Dimond on her website, dianedimond.com. You can also find her book, We’re Here to Help: When Guardianship Goes Wrong on Amazon. If you buy it and find it worthwhile, please leave it a review. If you are currently dealing with the guardianship system, there is a page at the top of her website called Guardianship Central that will give you resources. You can also reach out to CEAR or NASGA on Facebook for help.