Wednesday, December 30, 2009

Guardianship = Legalized Abuse ?

Is guardianship legalized elder abuse?

Posted: 30 Dec 2009 03:56 PM PST

Legalized Elder Abuse: Guardianships And Conservatorships
Assisted Living
December 29, 2009
Assisted Living Senior Housing
The American legal system has established “guardianships” for the specific purpose of protecting vulnerable individuals–called “wards”–when a judge or judicial officer determines that the ward’s decision making capability is so impaired that another person–the “guardian”—needs to be given the right to make these decisions. A guardianship is particularly appropriate for wards who are suffering from Alzheimer’s disease and related dementia, as well as advanced alcoholism and similar afflictions that render the person unable to care for his or her health and other needs. A “conservatorship,” twin to the guardianship, is set up to conserve the ward’s assets; the conservator acts as a custodian.

The legal obligations of the guardian and conservator. As defined above, these legal vehicles seem completely sensible and necessary. After all, people who are so incapacitated that their decision making is unreliable obviously need professional assistance; left unprotected, their health and wealth are at risk. The law considers the connection between the guardian (or conservator) and the ward to be “fiduciary” in nature, a legal relationship of confidence or trust between two or more parties. Indeed, for legal purposes, a “fiduciary” duty requires the highest possible standard of care. It recognizes that the ward needs to have utmost confidence, reliance and trust in the guardian or conservator, whose aid or protection is essential. The fiduciary, therefore, is required to act at all times for the sole benefit and interests of the ward, with absolute loyalty to those interests.

The reality of guardianships and conservatorships. Unfortunately, vulnerable individuals are easy targets for the unscrupulous. Equally unfortunate is the fact that the legal system, having established these processes, frequently fails to supervise how they actually work. Not surprisingly, when there is a lack of oversight, as Elaine Renoire, a particularly experienced observer of guardianships and conservatorships, warns in her website, “(The system) operates to ensnare the most vulnerable people in a larger and larger trawling net, . . . a feeding trough for unethical lawyers and other ‘fiduciaries’ appointed by the courts to protect, but many of whom become nothing more than predators.”

Victims of guardianships and conservatorships. Ms. Renoire argues that wards are easily exploited by the system, frequently forfeiting their freedom, property, “and their very lives,” because, first, judges and court administrators fail to monitor these processes, and second, the state legislatures and the federal Congress fail to regulate legal practices. The result? According to Ms. Renoire, judges, who she claims are either “uncaring” or “corrupt,” fail to provide adequate due process to the wards, who in turn fail to get adequate notice of the proceedings that will result in the determination of their competence. Even when they are notified, Ms. Renoire reports that they are rarely defended by attorneys. And in those instances for which counsel is provided, these lawyers, again in her words, “(Are often) too closely affiliated with other professionals who make their living in this special area, and do not properly represent the victims’ interests. Corrupt judges do not apply the required evidentiary standards in (adjudicating incompetence), and frequently fail to obey the protective statutes . . .”

So, what’s the bottom line? According to, “(Guardians and conservators) are given power of life and death, burying their wards in nursing homes where they are kept chemically restrained with unnecessary and dangerous drugs; family members are denied any say in their care, and sometimes (they’re) denied visitation, except under guard at their own expense!” Is the system abusive? Is it possible that the guardianship/conservatorship system is as flawed as is claimed? According to the February 15th, 2009 edition of the “Minneapolis Star-Tribune,” the process is at least as ineffective as Ms. Renoire believes, and can be negligent–and perhaps corrupt–in practice.
The front-page headline blares: “2 years and $672,808 gone,” with an accompanying picture of a now-smiling older lady. She’s identified as Peggy Greer, approaching her 86th birthday, four years after she and her family members battled the Minnesota judicial system to free her from a guardianship/conservatorship nightmare that cost two years of her life and drained her entire life savings–nearly $700,000.

Peggy Greer’s situation is fairly typical. In 2004, just after she turned 81, her life was in crisis. Her eldest son, a drug addict, was living with her. After suffering a back injury, she also became drug-dependent. That summer, her daughter, Judith, petitioned the local probate court to appoint her and her brother as Ms. Greer’s guardians and conservators, claiming that her mother was “suffering from dementia and chemical dependency,” rendering her “unable to arrange to her medical care,” and “unable to manager her estate (and) vulnerable to financial exploitation.” The latter claim was particularly relevant, because Peggy Greer was about to inherit a substantial amount of money.

Subsequently, a local firm was appointed as the guardian, and Wells Fargo was named as conservator. Despite the fact that her condition had improved–she was considered to be neither chemically dependent nor suffering from dementia–Ms. Greer was sent to live in a nursing home, at a cost of $5,700 per month. She complained that she wanted to return to her home, but her chemically-dependent son was still living there, and the guardian refused her request to go home.

The family, realizing that at least an interim solution was required to stem the outflow of funds from the inheritance, attempted to relocate her into a less expensive assisted living facility; the guardian declined the request, arguing that “It would cost a lot to get her discharged from one nursing home and admitted to a new one when we all anticipated she would be returned to her home pretty quickly.”

Perhaps not surprisingly, that didn’t happen. The family filed a petition to replace the guardian. Legal expenses consequently skyrocketed. After a year of the conservatorship, these fees totaled at least $45,000; adding in the other costs, including the nursing home rent, the $226,800 inheritance—which was one of the justifications for the conservatorship itself—was exhausted. Additional funds would be necessary.

The conservator, Wells Fargo, petitioned the court to sell Peggy Greer’s home, despite the fact that the guardian was trying to move her back into it. Nonetheless, Wells Fargo pursued the sale, claiming that “The protected person is not able to return to independent living.”

The probate judge finally agreed to a “reverse” mortgage, whereby a bank captures the equity in a home in exchange for making periodic payments that allow the homeowner to remain in the home. In the case of Ms. Greer—again, not particularly surprisingly—the bank that received the reverse mortgage was Wells Fargo.

At this point, Charles Heintz, the chemically-addicted son, died, which allowed Ms. Greer to return to her home.

Although she was able to take care of most of her own needs, she received constant, 24/7 care from a home health agency. The cost? $26,000 a month! Although her nursing home doctor recommended that this assistance be discontinued, the guardian refused.

Finally, in January, 2007, the guardian agreed that this care, now totaling more than $55,000, should be scaled back, a decision that neatly coincided with the liquidation of her funds. As her son described the situation, “Once the money ran out, almost to the day, suddenly the care was no longer needed.” Peggy Greer summed it up this way, “My money was all used up, was all gone, without my knowledge or OK or anything.”

The final tally, as of October, 2007, reported that the total spent on her behalf since March 2005 was $672,808. The guardian and the conservator each earned more than $11,000, with the conservator earning an additional fee from the reverse mortgage. The amount owed by Ms. Greer: $ 48,388. Total assets remaining: zero.

About the author: Laurence Harmon writes for Great Places.

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