Problems with Guardianship Abuse Leading to Calls for Reform

A growing problem with adult guardianship abuse is causing calls to reform the system. Vulnerable elderly can get caught in the guardianship system- being harmed and exploited by the very process that is supposed to protect them.

A guardian is someone appointed by a court to make decisions on behalf of an incapacitated individual (“ward”). The guardianship process usually starts when a family member or social worker notifies the court that someone can’t take care of him- or herself. The court often appoints a family member as guardian. However- if the family can’t agree on a guardian or there is no family to act as guardian- the court may appoint a public guardian. Public guardians are supposedly neutral individuals who are hired to act in the ward’s best interest.

Unfortunately- in many states- the lack of court oversight combined with poorly trained guardians has led to reports of abuse. Once the court appoints a guardian- that guardian has complete control over the ward’s property and finances.  In Virginia- a guardian controls an incapacitated person’s health care and living arrangement decisions- while a conservator is typically appointed to manage their property and finances.  In some states- Guardians can block family visits- determine where the ward will live- and sell property. Effective July 1- 2016- Virginia law will provide that a guardian shall not unreasonably restrict an incapacitated person’s ability to communicate with- visit- or interact with other persons with whom the incapacitated person has an established relationship.  See- Virginia Code Section 64.2-2019(E).   In addition- guardians and conservators charge fees for their services that are payable from the elderly person’s bank account- which can cause corruption. When a senior gets caught up in the guardianship system- it can be very difficult to get out. There are many stories about seniors who are confused and overwhelmed after losing control of their lives to a guardian they don’t know.

In response to complaints by advocacy groups about guardianship abuse- Florida passed a law in March 2016 instituting changes to its public guardian system. The law creates an Office of Public and Professional Guardians that is required to create standard practices and rules for public guardians. The office also has enforcement power to revoke a guardianship.

If you think a loved one needs a guardian- consult with your attorney to determine the best steps. There may be less restrictive alternatives to guardianship.

In addition- if your family can’t agree on the best course of action for your elderly loved one- before fighting over guardianship in court- consider elder law mediation.

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