Vast Majority Of Elder Financial Abuse By Guardians Can Be Prevented, Experts Tell Senate
By: Ted Knutson
Elder Law Associates Newsletter dated July 2, 2018
The vast majority of elder financial abuse by guardians can be prevented, a panel of four experts unanimously told a Senate Aging Committee hearing today.
Among the low hanging fruit they recommended:
- Enacting state laws to provide more often for less restrictive arrangements than guardianship, such as assisted decision making, for seniors and others with disabilities.
- Tell the individual under care and family members that a guardian has been appointed, what the guardian's responsibilities are and how to report guardian abuse.
- Mandate guardians tell the courts when people under their care have become able again to make their own decisions.
As an example, stroke victims can quickly recover that ability, noted Nina Kohn, principal drafter of the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act.
A guardian should be appointed only when a person cannot make their own decisions and is at risk of harm without the aid of someone to oversee their affairs, said Kohn, a Syracuse University law professor.
An estimated 1.5 million adults with billions of assets are currently under guardian care.
Senate Aging Committee Chair Susan Collins said less restrictive care can reduce the likelihood that someone could take advantage of a senior or misuse their assets.
The Maine Republican pointed to a Nevada guardian who was indicted last year on more than 200 felony charges, after having been given the authority by the courts over 400 individuals in 12 years.
Elder financial abuse by guardians can range from outright theft to excessive fees, such as when an attorney charges his or her normal hourly rate for grocery shopping, the hearing was told.
“There is a significant risk potential to an older adult when a family or friend is appointed as a guardian. However, this risk grows exponentially with a guardianship agency who serves multiple adults under guardianship,” said Denise Flannigan, a guardianship supervisor for an area agency on aging in Western Pennsylvania.
A review of 27,000 guardianship cases in Texas regularly found unauthorized withdrawals from accounts; unauthorized gifts to family members and friends; and unsubstantiated and unauthorized expenses, Texas Judicial Council Executive Director David Slayton told the committee.
He added that in over 43% of the cases, guardians failed to meet all court-mandated reporting obligations, including providing information that a bond had been obtained, an inventory of assets in the estate and an annual accounting of transactions.
“Persons under guardianship should enjoy supported decision making whenever possible and have their rights restored in part or totally with all deliberative speed,” said Virginia Tech Gerontology Center Director Pamela Teaster.
The loss of rights makes it imperative guardianship is done right, said Aging Committee Lead Democrat Bob Casey.