When a person becomes mentally or physically unable to make rational decisions about their health or finances, someone else must step in. Hopefully that person is a close relative or personal friend – someone who has your best interests at heart. Generally, the friend or loved one is the one who goes to court to request such an arrangement, as they must be appointed by the court.
Here’s how it works in most states: The loved one seeking guardianship or conservatorship will ask the court to be appointed a legal guardian and/or conservator. Most courts require certification by at least one medical practitioner that the individual (the “department”) is indeed no longer physically or mentally healthy enough to make their own medical or financial decisions. In many states, the process requires the court to appoint an attorney to represent the district, which makes the process even longer.
This whole process can be very frustrating, expensive, and difficult for everyone involved, even in situations where everyone involved has the best interests of the parish at heart. But imagine a situation where the person who seeks to be the guardian or curator is less than honest, doesn’t have the ward’s best interests at heart, and ends up having complete control over the ward’s body and property. . Sounds like a nightmare, doesn’t it? Yes, it is a nightmare and there are plenty of true horror stories floating around to send shivers down your spine.
Before I get to the part about how to prevent this from happening to you or a loved one, I want to scare you even more by sharing with you what happened when I tried to find out how bad the guardianship is widespread in the United States. The bottom line, I’ve discovered, is “nobody knows.”
Just a few years ago, in response to reports of widespread abuse of the guardianship system, the US Senate Special Committee on Aging began a study of the problem. They launched a survey of current practices, asking for feedback, recommendations and best practices from states, courts and organizations representing older Americans and people with disabilities across the country. In the more than 100 responses they received, there were detailed stories of guardianship abuse across the country.
The committee’s subsequent report contains key findings from meetings with stakeholders, letters from constituents, research and public comments. They identified widespread and persistent challenges that desperately need to be monitored. In a nutshell, their findings included:
- Once guardianship is imposed, there are few safeguards in place to protect wards from abuse, neglect and exploitation.
- There is a lack of education for all involved as to what constitutes appropriate guardianship behavior and responsibilities.
- In the event that the service regains full capacity, there is no process to restore their rights and restoration rarely occurs, leaving them attached to the guardian.
Few states were able to provide specific or detailed data on guardianship. Information regarding the number of guardianship arrangements was not available to the committee.
Pretty scary stuff, isn’t it?
Older single people without children are particularly vulnerable to this kind of blatant abuse of power because there is no clear and obvious guardian for them if and when they lose their ability to care for themselves and take good decisions. That’s why it’s especially important for single seniors to have a plan in place in case they become disabled. A health care advance directive, health care power of attorney, and power of attorney for finances are all documents that can specify exactly who will play this role in your life should it become necessary.
Many single seniors are reluctant to create these documents because they find it difficult to determine who they can name on these documents. Moreover, it is hard to imagine a time like this when we are strong and healthy. However, statistics easily demonstrate how vulnerable many people can become later in life. As you mentally study the landscape in your own network of friends and family, you might be well served to focus on cultivating relationships with nieces, nephews, and younger cousins to fulfill one or more several of the roles in the documents named above. Younger friends you have come to know and trust may also be candidates.
Finding the right person (and two or three backups) is only the first step. Next comes conversations with them. It is not fair for anyone concerned to name people and not discuss it with them. In addition, you or your loved one are much more likely to receive the treatment you would have chosen, if your wishes are well communicated and understood by everyone. The process is very similar to the end-of-life discussion, made popular and socially acceptable over the past decade through the efforts of Ellen Goodman (The “Conversation Project”) and others who help us all understand the importance of these types of talks. Raising the possibility of guardianship is an extension of this discussion.
The most important thing is not to wait too long. Things can happen to us at any age, but the likelihood of serious illness or accident is high as we get older, so waiting for “the right time” or looking for “the right place” won’t serve you as well. than dive in at your first opportunity. These conversations are never easy, but when I think about what’s at stake, I can’t think of a good reason for anyone to wait, can I?