Professional Guardian Abuse of the Elderly

Guardianships for the elderly and incapacitated a great help when they work properly. But if a guardianship goes awry, as is portrayed in the Netflix movie I Care a Lot, it can be a nightmare. In some cases, anyone can petition the court for guardianship of an elderly person who seemingly can’t take care of themselves—referred to as a ward—whether because of physical or mental disability. A petitioner for guardianship doesn’t even need to inform the elder for whom they are applying, nor the family or friends of the person.

In other cases, guardians instead must be family-members or be nominated. The court involves itself in determining whether a person needs a guardian by requiring a medical opinion and sending out a visitor to check that the person is in safe living conditions.

Unfortunately, the chances for abuse of the elderly in guardianships may happen in any system, and guardianships can place some of our most vulnerable citizens in terrible circumstances in which abuse can be hard to detect. Abuses often happen when the court appoints a public guardian or when a court does not take the proper steps to ensure an elderly person is really incapacitated. However, these problems are not limited to public guardian programs.

A relative or a close friend can easily resort to abusive behaviors, especially if they can financially exploit an elder. This piece explores guardianships, how they are exploited, and how one can save an elder from an abusive guardianship and recover compensation for them.

Preventing a Guardianship Horror

While anyone can become incapacitated at any time in life, elders are likelier to have the kinds of accidents or illnesses that lead to conditions like mental illness, or physical or developmental disability, which often lead to guardianships. Still, elders can and should have a say in whether or not they are placed in guardianships, and if so, under what terms. Elders can protect themselves by establishing estate plans designed to prevent the scenario of an unethical guardian embezzling or wasting their assets.

A guardian could be a person, agency, or institution. A probate court may appoint a guardian nominated by someone. The guardian has control over all aspects of their ward’s life. The guardian can handle all of the ward’s financial affairs, including selling their home and managing their bank and retirement accounts.

When nominating a guardian in your estate plan, choose someone you know you can trust to take care of your financial well-being. If your loved one didn’t create an estate plan and you find yourself in the position of nominating a guardian for them, nominate someone you can trust to take care of their health and financial well-being.

Guardian vs. Guardian ad-Litem

A guardian is someone who oversees their ward’s life, as described previously. A guardian ad-litem is a third party appointed by a probate court and serving until the court resolves the guardianship case and appoints a nominated guardian.

Since the guardian ad-litem is someone appointed by the court, you or your loved one who is up for guardianship might hire a separate attorney to represent your interests in the guardianship process. This could help avoid guardian nominations of those who might take advantage of you or your loved one.

Requirements for Appointing a Guardian

You can nominate a guardian in your estate plan, or a friend or relative can nominate a guardian. Only a court can appoint a guardian. You should nominate more than one person in case the first person you choose is not fit to serve as a guardian or refuses the duty.

This prevents someone else, perhaps a court itself, from choosing a guardian for you. While a court must have evidence that you are incapacitated, do you really want to leave your assets in the hands of a potential stranger?

The person nominated must go through several steps, including filing a summons and petition and paying the filing fee. The court then appoints a visitor to meet with you to learn more about you and to make sure your living environment is safe. The court then appoints a guardian ad-litem. You have the right to representation by an attorney. You can use the guardian ad-litem as your representative, or hire someone else.

The court must then notify you, your spouse, parents, and your adult children that it is starting the guardianship process. If you have a power of attorney, the court must also notify that person. You have a right to speak at the guardianship hearing—either for yourself or through your attorney.

When You Do Not Need a Guardian

In some circumstances, someone might petition for guardianship over you when you do not require one.

You can tell the court that you reject the guardianship, and should keep the following in mind:

• If you make your own healthcare decisions and take care of yourself, you do not need a guardian.
• Making bad decisions does not mean that you need a guardian or that you are incapacitated.
• If you have a healthcare power of attorney, you might not need a guardian, even if you are dying, as long as your family can make the appropriate end-of-life decisions for you, based on your estate plan.

If your estate plan is insufficient or the person you named in your living will has a conflict of interest or is no longer living, you might need a guardian. It is best to ensure that you keep your estate plan updated and list a second and even third choice for a guardian if your first choice and/or your second choice cannot act as your guardian.

Ending a Guardianship

Guardianship also doesn’t have to be permanent. If an elder overcomes the challenges that originally led to the guardianship, they can ask the court to revoke the guardianship. A guardianship might also end if an elder or their loved ones discover that a guardian is taking advantage of their ward. In such a case, a probate attorney can help end the guardianship. If a guardian is going as far as to physically, mentally, or emotionally abuse their ward, the elder or their loved ones should contact an elder abuse attorney who has experience in guardianship cases. An elder abuse attorney can help wards recover compensation for the abuse.

Signs of Abuse by a Guardian

The unfortunate truth is that some guardians take advantage of or abuse their wards—whether financially, physically, mentally, or emotionally. A guardian may abuse their ward for personal gain or because of their own personal emotional or psychological issues.

Abuse is not always physical. It can also be psychological and financial. Even if the court appointed a family member or close friend as a guardian for your loved one, you should keep an eye out for signs of abuse in any of these forms.

Signs of physical and psychological abuse. You don’t have to see bruises or marks on a loved one to suspect abuse, though if you check for them, do so.

Other signs of physical and psychological abuse may include:

• Your loved one flinching when you get close to him or her or when you touch him.
• Your loved one does not want you to help with dressing, bathing, eating, or other activities he or they can’t do themself.
• You notice a change in your loved one’s personality, such as more aggressiveness or becoming withdrawn.
• Your loved one is losing weight, which could mean that food is being withheld or he or she doesn’t have an appetite because of the abuse.
• You see signs of physical abuse, including unexplained bruises, cuts, and scrapes.
• Your loved one is not sleeping or is sleeping more than usual.
• Unexplained broken bones.
• Signs of being restrained, such as red marks or bruises on the wrists and/or ankles.
• Hair loss.
• Increased trips to the emergency room.
• Your loved one injures themself.

Signs of financial abuse. Unless you have access to your loved one’s financial accounts, signs of financial abuse are hard to detect. However, you may tell through other signs, such as if it appears their needs are not being met (e.g. they do not have food in the refrigerator), or if they are asking friends and relatives for money. In some cases, a loved one’s possessions go “missing,” because the guardian is selling them off.

Additional signs of financial abuse include:

• Changes in your loved one’s estate plan, such as changes in the beneficiaries, assets removed from a revocable trust, or changes in living wills, wills, or power of attorney. If you have power of attorney, you can monitor your loved one’s accounts yourself. If your loved one has an attorney overseeing their financials, the attorney might not share information about changes to the estate plan unless your loved one previously gave the attorney permission to share that information with you.
• Changes in banking behavior, for example, you notice more withdrawals for cash when your loved one would rarely withdraw cash, or more debit and/or credit card charges. Look out for unusual checks as well. Most banks provide online access to accounts. If you have access to your loved one’s account, you can monitor transactions.
• Explanations of financial transactions and finances seem implausible, whether those explanations come from a loved one, the guardian, or another relative.

Guardians may also inflict financial abuse because they have the liberty to charge for their services. If they are making unreasonable charges, that is another method of stealing money from a loved one. A guardian could overcharge your loved one for services or could charge for services he or she never completed. A guardian could even buy items for themself and tell you it was for the ward. You can check by looking for the material assets that match the transactions.

For example, if the guardian charged your loved one $500 for new clothing, your loved one should have that clothing—in his or her size. Beyond these signs, keep an eye on your loved one’s mental and emotional well-being. Financial abuse often goes hand-in-hand with mental and emotional abuse. If your loved one suddenly seems depressed, anxious, or is acting differently in any way, especially if it relates to financial matters, this may be a sign of any kind of abuse by their guardian.

Recoverable Damages in Elder Abuse Cases

You can recover damages on behalf of yourself or a loved one that suffered abuse at the hands of a guardian, including medical expenses, pain and suffering, and emotional distress. You should be vigilant and monitor your finances, or you ask another loved one to help monitor. Document everything your guardian does, including how they spend your money or sell assets, and how they treat you mentally, physically, and emotionally.

If your loved one is incapacitated and you suspect emotional abuse, physical abuse, financial abuse, or a combination of the three, document everything you notice. Elder abuse cases can be complicated, whether it is getting a guardian removed or recovering damages for abuse. If you are being abused by a guardian or are the loved one of an elder you suspect is being abused, contact an elder abuse attorney as soon as possible.

Nathan Hughey

Nathan Hughey, an attorney and fourth-generation South Carolinian, founded Hughey Law Firm in 2007. Before that, he spent five years defending nursing homes and insurance companies. Leveraging his experience, he now advocates for those injured or wronged by such entities, securing over $220 million in verdicts and settlements.