Tales of relatives fighting over Mom to access her savings, professional guardians draining an estate through high fees, or nursing homes filing for guardianship to keep their beds filled have been regular occurrences.
When a judge imposes legal guardianship or conservatorship, the ward or "incapacitated person" may no longer be allowed to decide where to live or whom he or she will see. If a guardian is appointed, that individual gets to decide whether the ward is allowed spending money. He or she won't be able to enter into contracts, including marriage, or demand a different guardian—even if the guardian is abusing the ward or stealing his or her money.
A report by the Commission on Law and Aging of the American Bar Association stated that the changes were on issues like background checks on guardians, access of the ward to visitors and phone calls, health care decision-making by guardians, fees, and rights of people under guardianship.
There are no reliable statistics on exactly how many guardianships there are nationwide. Today, experts believe that there are 1 million to 2 million. Some of the changes in recent years include these requirements:
- The would-be "incapacitated person" is notified of the guardianship hearing and the right to be present if desired;
- He or she has the right to an attorney;
- There must be "clear and convincing" evidence that the person is incapacitated and, in some states, that guardianship is necessary to avoid harm; and
- A medical expert must assess the proposed ward.
But many states are resistant to change. One major push in new legislation in the U.S. has been to require judges to grant limited guardianship orders whenever possible, instead of a complete and total termination of the ward's rights. A preference for limited orders is the statutory mandate in almost every state, but there are an excessive number of removals of rights in too many cases. There's a strong push for judicial efficiency against them.
Many advocates think that it's way too simple to get a judge to sign off on a guardianship or conservatorship. The evidence stating that the older adult can't handle his or her own affairs is supposed to be "clear and convincing," but it really may only be one of the following:
- a brief letter from a general practitioner who's taking the word of an adult child;
- a statement from a doctor who doesn't know the difference between delirium (temporary) and dementia (permanent);
- a court petition from a proposed guardian or conservator with a conflict of interest;
- a petition from a nursing home that wants a regular, paying client; or
- a statement from an adult child who wants to take over the decision-making from a parent instead of determining necessary care.
Another issue with efforts to reform guardianship and conservatorship is the difficulty of monitoring. Most states require guardians and conservators to keep records of their activities and file regular reports with the judge, but compliance can be a mystery. Many courts simply don't have enough resources to hire staff to track the reports and investigate potential problems. The Commonwealth of Virginia has no such problem with making sure the accounting is timely provided to the Commissioner of Accounts office with a fee that must accompany this filing; usually $750 annually. We can help you with this; give us a call to schedule your complimentary consultation or use our easy online 'request for a consultation' process.
Reference: nextavenue.com (May 24, 2016) "Guardianship Laws: Improving, But Problems Persist"