THE GUARDIANSHIP TRAP: Protecting elders, or exploiting them?
15th June 2016 · 0 Comments
By Emily Gurnon
Contributing Writer
First in a series
(Special from PBS NextAve-nue/New America Media) – Ginger Franklin was just shy of her 50th birthday when she fell down the stairs of her Nashville-area townhouse in 2008. A marketing representative for Sam’s Club, she was taken to the hospital with a severe brain injury. Doctors weren’t sure if she would survive.
Since Franklin had not designated anyone to make decisions for her if she became incapacitated, and with no immediate family, her aunt was advised to petition the court for a guardian. The guardian, a lawyer appointed by the county, placed her in a group home for seriously mentally ill adults.
But Franklin was not mentally ill. And she did what no one expected her to do: She recovered.
Lost Her Home, Freedom
When she returned home from a rehabilitation center seven weeks later, however, the guardian “told me that I didn’t have a home anymore and that my townhouse was empty,” Franklin said.
As is common in guardianship cases, the court granted permission for the guardian to sell Franklin’s home and its contents.
The owners of the group home where she was placed then put Franklin to work: She was forced to do the grocery shopping, cook, dispense medication, watch over the other residents of the house and clean the owners’ personal home — for no pay, Franklin said.
Meanwhile, she was paying $850 monthly rent to the owners, plus $200-per-hour attorney fees to the guardian for such tasks as writing checks for Franklin’s expenses and leaving phone messages, according to a court document.
With the help of an advocate, and media attention, Franklin fought the guardianship in court, winning her freedom in 2010 after two long years of having no legal rights. She now lives independently in the Nashville area and has sued the guardian.
“It’s quite an understatement to say I was devastated,” she told Next Avenue. “I don’t trust people anymore. I lost everything — because I fell down the stairs.”
More Will Enter
‘The Danger Age’
Franklin’s situation, originally investigated by The Tennessean newspaper, is just one of many cases of guardianship and conservatorship abuse across the country.
In a 2010 report, the U.S. Government Accountability Office (GAO) found hundreds of allegations of physical abuse, neglect and financial exploitation by guardians in 45 states and the District of Columbia between 1990 and 2010. Guardians also stole $5.4 million in assets from their wards in that period, the GAO said. (The GAO is currently working on an updated report.)
As the boomer population moves into old age, the numbers of people affected by guardianship and conservatorship will rise “tremendously,” said Jennifer Wright, a professor at the University of St. Thomas School of Law in Minneapolis who directs the school’s Elder Law Practice Group.
“There are more of us who are going to enter the danger age,” she said.
With as little as a single document — and in some cases, not even a court hearing — older adults can see their most basic rights stripped away. They cannot vote, get married or get divorced. A family member or a stranger appointed by the court will decide where they will live, how their money will be spent, what health care they will get or not get, when they will go out, when and where they may travel and whom they are allowed to see.
Guardianships Difficult to Challenge
Rarely is an “incapacitated person” or ward able to get a guardianship or conservatorship terminated — until death, that is. Franklin was, in that sense, very lucky.
“Go ahead and see what you can do, because you have been deemed incapacitated, so everything you say or do is meaningless,” said Brenda Uekert, principal court research consultant with the National Center for State Courts. “You can’t even get an attorney, because a judge has already determined that you don’t have the ability to make decisions for yourself.”
Those who do try to fight often end up paying exorbitant amounts of money.
“Many families go bankrupt because they believe if they hang in there long enough the system will work for them, and it doesn’t,” said Elaine Renoire, a director of the National Association to Stop Guardian Abuse in Loocootee, Ind., a victims’ rights group. The No. 1 complaint she hears: guardians who try to isolate older adults from their loved ones.
In her 2014 book, The Con Game: A Failure of Trust, business professor T.S. Laham of Diablo Valley College in the San Francisco Bay Area wrote that America’s guardianship system is “an open invitation to potential abuse.”
Reasons for the Abuse
The principle behind guardianship and conservatorship is noble: Make sure that someone who cannot take care of himself or herself has another person or institution watching out for their interests.
And in most instances, it works the way it should, say professionals who have pursued reform efforts.
But dig into the details and a more complicated picture emerges.
“The system is underfunded. There’s not enough judges who understand what to do and how to do it. There’s not enough volunteers to do the work. And there’s not enough money to pay people to do it on a compensatory basis,” said Bernard A. Krooks, founding partner of the New York law firm Littman Krooks.
Courts need — but often lack — the money for staff to oversee guardians and conservators and to review the periodic reports they are required to submit. There may be a shortage of judges to handle cases of all kinds, including guardianships. Counties often lack the funds to appoint public or professional guardians when the ward is indigent.
“And you’re dealing with the most vulnerable segment of the population,” including the elderly and disabled who cannot stand up for themselves, Krooks said. “So you’ve just got a recipe for disaster, and that’s what’s happening in a lot of states.”
This series is adapted from a longer version by Emily Gurnon for PBS Next Avenue, where she is Health and Caregiving Editor. The projects had support from the Journalists in Aging Fellows Program of New America Media and the Gerontological Society of America, sponsored by the Retirement Research Foundation.
This article originally published in the June 13, 2016 print edition of The Louisiana Weekly newspaper.
