By Jessie Arnold

What is a Guardianship of an Adult?

Guardianship is intended to help elderly and disabled people who cannot live independently or make good decisions about their care. It has long been a worrisome institution for advocates of these groups, and there are special risks during COVID given the rampant nature of nursing home abuse.

The Probate Court gives the guardian the power to make certain decisions for another person, known as the ward. A petition for guardianship is filed in the county where the potential ward resides.

Guardianship law is jurisdictionally-specific, but there are some commonalities. A physician must establish the potential ward’s inability to care for themselves, their health, and their safety. Sometimes this is routine, but as discussed herein, sometimes unscrupulous potential guardians go “shopping” for the answer they want.

If the guardianship is granted, the guardian can then make personal decisions for the ward. In some cases, this protects someone with advanced dementia, but there is no doubt it is infantilizing. In general, the guardian has the same rights, powers, and duties over his ward as parents have over their minor children.

What Decisions Can a Guardian Make for Their Ward?

The guardian has various rights and responsibilities

• Provide or manage care and support, food, shelter, etc. (from the estate) including asking to court to transfer the ward to a nursing or assisted living facility
• Provide “informed consent” for most medical, dental, and psychiatric care
• Consent to experimental care if the court allows it
• Provide informed consent to social and supported living services
• Release records
• Initiate a divorce
• Advocate for the ward
• Other powers as provided by the court
• Provide an annual report to the court
• Protect, preserve, manage, and dispose of the estate according to law and for the best interest of the protected person. 

What is the Difference Between a Power of Attorney and a Guardianship?

An individual can choose to give someone power of attorney, either immediately or triggered by certain events, such as the inability to speak or act for themselves. A person can choose who you want to hold power of attorney, whereas when a guardian is appointed, the incapacitated person does not have that choice.

A power of attorney is not as expensive for the estate than a guardianship, because you must only privately get papers drawn up.

A guardian, on the other hand, is appointed in an expensive legal proceeding and is paid out of the estate. The court oversees these payments but tends to be very deferential to the guardian.

There are a couple of drawbacks. Whereas a guardianship is a court order, a power of attorney is a private document, and not everyone will accept it. Furthermore, granting power of attorney may lead someone to start guardianship proceedings.

The powers held by POA are set out in the legal document creating it, and can be limited or sweeping.

What is the difference between a conservator and a guardian?

A court-appointed conservator manages only finances, while a guardian manages all of the decisions in the ward’s life including medical decisions. A conservator has the power to invest the funds of the estate and use the proceeds for the ward’s care.

When Will the Court Appoint a Guardian?

The court will look for medical evidence that the individual in question cannot care for themselves or make appropriate decisions. Unfortunately, certain cases make it appear that it sometimes enough that a random doctor whom the patient has seen once calls them “confused” in her notes; rarely is actual cognitive testing required.

Other evidence is admissible as well. Third-party guardians have used as little as a few unpaid pills or a temporarily low-stocked kitchen pantry to obtain guardianship.

Who Can Petition the Court for Guardianship?

If a court finds an individual incapacitated, they can be moved to a nursing care facility against their will. Not only third parties, but unscrupulous family members sometimes exploit guardianship law.

Relatives, hospitals, government agencies, and even third parties who barely know the person in question can petition for the state to appoint a guardian. The guardian can be family or a “professional” guardian, and this individual will make both health care and financial decisions for the charge. Laws vary, but few states or municipalities require any kind of licensing for guardians. The desire of wards to live with willing family members is often dismissed out of hand.

In one case, a realtor who barely knew the elderly person in question petitioned the court to appoint a guardian. The family wasn’t even informed of the guardianship or that their loved one was taken away to a nursing home. The family wasn’t even given a chance to choose amongst themselves for someone to become a guardian.

A court’s decision to appoint a guardian is usually final, as appeals are costly and complex, and appellate courts are highly deferential to the lower court’s initial findings.

According to the ABA, The authors wrote that “guardianship is generally “permanent, leaving no way out—‘until death do us part.’ ”

So, while some individuals have their assets and health protected by guardianship, the process is rife for abuse and has served as just another way the elderly and even mentally ill can be exploited and taken advantage of, losing their freedom and their finances.

The controversy involved in lifelong guardianship can be seen in case of younger adults, as well. Recently, the ACLU offered to fight for Brittney Spears, who has been under a guardianship order since 2008 years.  The ACLU considers it their issue because people under guardianship orders lose virtually all their civil rights. For example, they state, “people under guardianship cannot make their own choices about: where they lie; where they work; what kind of medical care they get- or whether they will get any medical care; what they eat; who they spend time with; and whether they will get married.” Guardianship tends to be incredibly hard to reverse and tends to be for life. Yet there is virtually no oversight of the process.

The Dangers of Guardianship and Forced Care During COVID

Some professional guardians have turned guardianship into an industry. They have hundreds of clients and control of their assets, they can bill the estate at high rates for every small conversation while denying charges for clothing or other requests by the ward.

The problem with the view the courts and guardians take toward wards is that they tend to equate the ward with the estate. When an issue arises, they argue that the estate won’t benefit, without looking at the “softer” needs of the ward.  Individuals come to be defined by their net worth, rather than as social beings who need creature comforts and the contact of family.

Furthermore, in various jurisdictions, what political scientists would call “perverse incentives” have been set up, such as a law in Nevada that allows the county to collect interest on guardianship accounts.

Because of the lack of oversight over the courts’ decisions, during COVID guardianship is particularly dangerous. When third parties get involved, sometimes the family loses their ability to look after their elderly loved ones. Sometimes, these loved ones are hospitalized and die before the family even knows they’re ill. Even apart from COVID, the mortality rate for people who are not cared for in their own home goes up 200-300 percent when they enter a nursing home. Particular risks have been cited as:

• Expedited, Zoom conferenced rubber-stamped guardianship appointments; leading to placement in the nursing home of the guardian’s choosing;
• Inability of the ward to properly isolate, being trapped in overcrowded nursing homes and exposed to COVID when they might have been safe at home alone or with family;
• Inattentive guardians who fail to ensure the ward’s nursing home is safely dealing with the COVID pandemic, including proper testing,
• Lack of communication with the family once the ward gets ill;
• Lack of contact with family, loneliness for the ward.

Guardians, whether family or third-party, have been found guilty of moving money to their personal accounts from their charges, cutting their charges off from other family members, and failing to look after the nursing home patients.

What is Supported Decision Making? An Alternative for Families During COVID times

Supported Decision Making came into existence recently. As a fairly new concept, there is little research behind it to know whether it successfully avoids the potential for corruption that guardianship presents. The intent is to provide an alternative to the drastic way in which guardianship removes so much agency from the individual and separates the individual from their family. As a rights-based approach, SDM is preferable as it better recognizes the humanity of the individual and the abilities they do have.

A person using supported decision-making appoints advisors that they personally trust, whether friends, families, attorneys, and accountants, and chooses when to consult them. A written plan called a “supported-decision-making agreement” is drawn up.

This way of formalizing the options people with less capacity have to consult with their support system may be a good option for families during COVID, who recognize that their aging parents may need a little more help than they used to but for whom a nursing home is a poor choice because of age and pre-existing conditions that make COVID potentially deadly. It avoids the all-or-nothing approach of leaving aging relatives to completely fend for themselves and taking away every civil right they have.

Inherent in the concept of Supported Decision Making is the Right to Fail, a right that every adult has.

Supported decision making is not available in every jurisdiction, but more states are passing it into law.

How Can Family Know if a Guardian is Looking After a Ward in a Nursing Home During COVID?

Look for these factors to see if a guardian is taking appropriate care of their ward during COVID.

• Encourages visits by friends or family where appropriate, including through windows and doors and on the telephone and videoconference;
• Keeps you updated on the ward’s health,
• Follows up on getting the ward a COVID test when requested;
• Returns phone calls promptly;
• Has a backup plan for guardianship in case the guardian gets sick.

Conclusion

Guardianship is one way to protect the elderly who might have difficulty making decisions for themselves. However, it presents dangers when wards are forced into nursing home situations where the risk of COVID is extremely high. Families have to recognize the risk that their loved ones might be forced into a guardianship situation and try to protect their elderly in that instance. One way to show that the family is involved in supporting their family is by drawing up a supported decision-making agreement.

 For advice to guardians on how to handle the COVID epidemic, click here.