Guardians of What? Premature Death?

Caroline* called us after her mother’s care was taken over by a court-appointed guardian. The guardian does not know the family and has never visited the woman—yet she has the power to liquidate the woman’s assets, enter into contracts on her behalf, determine where she will live, and make life and death decisions about her health care.

Last week, the guardian decided to put Caroline’s mother in hospice over Caroline’s objections, even though she is not terminally ill. Caroline is terrified that the guardian will soon authorize the withdrawal of her mother’s food and water.

Caroline has tried to have the guardian removed, but the judge who would make that decision is the one who appointed the guardian to begin with—and he is not likely to acknowledge that the appointment was a mistake.

Even though the U.S. Senate and the U.S. Government Accountability office have published reports on fraud, neglect, and outright abuse of adults under guardianship, very little is being done to remedy the problem.

This type of arrangement is rife with the potential for fraud. In 2018, the U.S. Senate Special Committee on Aging issued a report urging greater court oversight of guardians, as “no other court process infringes upon an individual’s personal liberties more significantly than guardianships.” But the same Committee acknowledged that even when complaints are made, guardians are rarely removed.

The U.S. Government Accountability Office (GAO) has published several reports on financial exploitation, neglect, and abuse of seniors who are under guardianship. Here are just a few examples of the types of abuse the GAO found:

  • A professional guardian misappropriated over $200,000 from persons under his guardianship to support his drug addiction.
  • In Nevada, professional guardian stole at least $200,000 from her wards’ accounts, in part, to support her gambling habit.
  • A New York lawyer serving as a court appointed guardian reportedly stole more than $4 million from 23 wards, including seniors suffering from mental and physical impairments as well as children suffering from cerebral palsy.
  • In Arizona, court-appointed guardians allegedly siphoned off millions of dollars from their wards, including $1 million from a 77-year-old woman whose properties and personal belongings were auctioned at a fraction of their cost.
  • In 2001, a Texas probate judge was appointed a guardian for a 91-year-old woman who displayed signs of senility. She later changed her will for the first time in 40 years, bequeathing $250,000 to the probate judge, the court appointed guardian, the judge’s personal accountant, and the court-appointed attorney associated with her case.
  • A professional guardianship agency stole at least $454,000 over four years from at least 78 victims in Alaska. The director of the agency used the funds to pay off credit card bills, mortgage payments, and camp for his children. No criminal charges were filed.

Some of our own cases are even worse.

Two years ago, we received a call from Samantha* whose disabled sister Charlotte* was placed under guardianship. Charlotte had been in the hospital and doctors wanted to release her. Samantha believed her sister needed additional medical care and begged the hospital to continue to provide Charlotte with treatment. The hospital filed a complaint against Samantha, resulting in the appointment of a law firm to oversee Charlotte’s care. Instead of allowing Charlotte to return home with Samantha, the firm’s lawyers placed her in a long-term care facility. Soon, they severely restricted Samantha’s visitation. We learned of the case when the law firm sought to withdraw Charlotte’s food and water and found two attorneys to represent Samantha. Initially, our attorneys were able to get the guardianship firm to back off and Charlotte continued to receive care. But ultimately, in spite of our efforts to save Charlotte’s life, the judge signed an order allowing the firm to end Charlotte’s life.

In another case, a young woman suffered a stroke that left her incapacitated. Her mother decided she “wouldn’t want to live like this” and authorized the hospital to remove her food and water. Because the woman was an organ donor, the hospital only removed her food to slowly starve her to death, but continued to hydrate her to preserve her organs. Yes, this actually happens in hospitals all across the U.S. We learned about the case and immediately found an attorney to intervene on her behalf. The court appointed a guardian to act in the woman’s “best interest.” To the doctors’ shock, the woman began to recover as soon as her nutrition and hydration were restored. When she was able to walk and talk again, we petitioned the court to dissolve the guardianship. The hospital fought hard to keep the guardianship in place—they did not want the woman to have the capacity to sue the hospital for trying to kill her. In that case, we were blessed with a very empathetic judge who actually admonished the hospital for attempting to control the woman’s life and eventually he did release the guardian. Ultimately, we succeeded in restoring the woman’s life and freedom, but not without a tremendous amount of pushback from a very well-funded hospital system.

The rampant abuses of professional court-appointed guardians is the subject of a dark comedy recently released on Netflix called “I Care A Lot.” The film is Rated R for language and violence and features a lesbian attorney as the guardian, so we do not recommend it, but it is interesting to see that even Hollywood acknowledges that fraud and elder abuse are natural by-products of our current guardianship regime.

The American Bar Association (ABA) recently published an article finding that “Guardianship restricts essential legal, constitutional, and human rights, and all too often the cases move through the courts with minimal regard to due process protections.” Hollywood and the ABA—hardly bastions of conservativism—recognize the problem with commercial conservatorships, yet the systemic abuse of wards continues.

Life Legal is seeing a marked increasing in cases involving professional guardians. In most cases, family members and the wards themselves are not even aware that a guardian has been appointed until it is too late. I recently spoke with an attorney regarding a commercial guardianship case who said it is not uncommon to receive only an hour’s notice before a court hearing appointing a guardian. As a result, most families—if they can make it to court at all—do not have representation to fight for their rights. It is difficult to imagine another context in which people’s most basic civil and human rights are stripped from them without any due process whatsoever.

Once a guardian has been appointed, it is extremely difficult to remove him or her. The abuses cited by the GAO continued for years before they were discovered. It is rare for a guardian to face criminal charges for plundering a ward’s estate. It is even rarer for the ward to recover assets that were stolen, let alone be compensated for the trauma inflicted by an abusive guardian.

In order to address the systemic problems inherent in commercial guardianship, Life Legal is collaborating with other organizations through a task force we helped form last year. In addition to providing legal representation in guardianship cases, we are working together to expose guardianship abuse and to change laws that allow people to be starved and dehydrated to death without their (not their guardian’s) express consent.

In Caroline’s case, above, we were able to find an attorney who was willing to petition the court to become her mother’s guardian to ensure that she continued to receive the care she needs.

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*Names have been changed to protect privacy.

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