This week here on the Blog, we’re focusing our attention on guardianships, a legal ruling in which an adult deemed by the court to be vulnerable or at risk is placed under the total control of another person. You and your family may never have dealt with a guardianship, but estimates are that over 1.5 million U.S. adults are presently living under this type of arrangement.
Sometimes a guardianship (referred to in some states as a conservatorship) attracts public attention, as in the case of former pop music icon Britney Spears featured in a companion Blog article this week. But more often these are family affairs that never draw outside scrutiny. Many guardianships are legally necessary and managed with care and compassion. But others leave vulnerable adults locked in legal limbo, their rights curtailed and their finances decimated.
Investigation Reveals the “Dark Side” of Guardianships
Our look into the laws governing guardianships drew us to this article from Bloomberg Law, first published a few years ago as part of a comprehensive investigative series. Reporters Ronnie Greene and Holly Barker produced this six-part series documenting major abuses and lax rules surrounding guardianship cases nationwide.
We lack the space to delve into individual stories – for that, we refer you to the original Bloomberg Law article – but we did want to share some of the more general findings that Greene and Barker uncovered in their investigation. They paint a damning picture of a system designed to protect the vulnerable but instead allows, and even facilitates, their victimization.
Blatant Greed Combined with Substandard Protection
The article begins with these stark words from Greene and Barker: “Nationwide, guardianships are often dogged by ripe greed, scant scrutiny, scattershot rules, and flimsy protections for the vulnerable people put under court-ordered control.”
They then outline for us some of the specifics from their investigation:
Unqualified Officials: In some states, they note, judges and other officials in charge of issuing adult guardianship orders are not required to have law degrees. “In Georgia,” write Greene and Barker, “a former Realtor turned probate judge improperly revoked a young adult’s right to vote without first holding a hearing and restricted her rights on everything from driving to spending money. When the woman’s mother challenged the system, the judge threatened to throw her in jail.”
No National Standards: There are only 14 states that certify guardians, Greene and Barker tell us, and no national standards as to caseload limits. “In Indiana, one professional guardian has taken at least 420 clients since 2016, most referred by nursing homes. Experts say that signals a system lacking meaningful controls,” they write.
Promise of Big Payoffs: Guardianships have a reputation for generating substantial fees as court battles drag on for years, regardless of the person’s wealth. Greene and Barker explain, “In New York, lawyers serving as guardians and counsel for famed artist Peter Max each bill hundreds of thousands of dollars a year, with one charging $550 an hour. The more they tangle with Max’s family for control of his priceless art, the more they seek in fees.”
Inadequate Oversight: “The system needs more oversight,” Greene and Barker state. “More than 1.3 million abuse claims are filed each year with local Adult Protective Services offices, but no one is counting how many involve guardians. Few states require independent attorneys to represent people facing guardianship.”
Guardianships are “Big Business” with Billions at Stake
At the time of the article, experts estimated that there were 1.5 million active adult guardianship and conservatorship cases nationwide. It can be a very lucrative business, too, with guardians managing what some estimates say is $50 billion or more in assets for those under their control.
While the guardianship industry came under scrutiny in recent years with the case of pop star Britney Spears, thousands of Americans remain trapped in these arrangements without the means or the voice to escape or fight back.
“The insiders have no interest in optimizing this system. They love its dysfunction because in this dysfunction they make millions or billions of dollars,” says Rick Black, who took on the mantle of full-time guardianship reformer after helping to expose abuse against in father-in-law in an arrangement in Nevada.
“The system is a profit center,” he adds. “It is not benevolent. It is not altruistic.”
When Family is Unavailable, Strangers Can Assume Control
The original intent of guardianships was positive, says Greene and Barker. Guardianships are meant to help adults in need, from young adults with disabilities or insurmountable mental health problems, to older adults who are no longer able to make healthy decisions for themselves.
“Family members often step in and serve as legally appointed guardians, watching over the finances and health care for their loved ones,” they write. “Yet when a family member is unwilling or unable to step in, or when there is no surviving kin, a professional or lawyer often takes the role.”
“Fewer Rights Than Convicted Felons”
The shocking but oft-repeated idea among experts, that American adults under guardianship can find themselves with fewer rights than convicted felons, comes from late Florida Congressman Claude Pepper, who pushed for tighter standards in the industry in the late 1980s.
“Bloomberg Law’s examination reveals that assessment to be on point,” write Greene and Barker. “Adults under guardianship often need permission to marry, to go to the store, to visit friends, to have their own debit cards or use their money for anything from fixing the roof to buying video games.”
Public interest lawyer Morgan Whitlatch concurs, adding, “People are rendered to a state of non-personhood, in the name of protection.”
Guardianship is Intended to be a Last Resort
Whitlatch, along with others deeply acquainted with the system, say that these arrangements really should be a last resort and a vast majority are too restrictive, leaving a “protected person” suddenly without a whole slew of rights as a result of a judge’s order.
“That can be a person’s right to make medical decisions, financial decisions, where they want to live, who they want to marry, driving a car,” says Kayla Puga, senior team attorney with Disability Rights Texas.
Denied the Right to Visit Family, Make Basic Decisions
Ruby Campos, one of Puga’s clients, knows how this feels firsthand. She was placed under guardianship after growing up in the foster system and was frequently denied requests to visit relatives, or to have her own debit card.
“I felt I wasn’t living my own life,” she recalls. “What about my opinion? Does it matter?”
In 2022, after more than a decade in the system, Campos succeeded in petitioning the courts to terminate her guardianship. “I actually felt like a new person,” she says. “Like I finally could live my life like I have always wanted to.”
Car Accident Leads to Nine-Year Guardianship
Greene and Barker tell us about Nicholas Clouse, an Indiana resident who was placed under guardianship with his mother and stepfather in 2012, when a car accident right before his nineteenth birthday left him with a traumatic brain injury.
By 2016 he had recovered. He went on to marry, to have a child, and even to maintain full-time employment as a welder and an HVAC technician. Even so, the guardianship was still in place, and Clouse still needed approval to make purchases for himself.
Clouse says, “I thought I would have a lot more freedom than I did. I had to ask for permission to really go anywhere or do anything. My stepdad would limit how much money I could even spend on my daughter for formula and diapers.”
The final straw—being unable to choose his own new or used car when his SUV’s engine failed—led him to work with Justin Schrock, a lawyer with Indiana Disability Rights. In 2021, nine years after it began, Clouse won court approval to end the guardianship.
Guardianships Can Often “Outlive Their Usefulness”
Clouse’s case demonstrates how guardianships can outlive their usefulness, creating abuse where there was only meant to be support.
Schrock says, “If someone like Nick [Clouse] can remain under guardianship, a full guardianship at that, for several years beyond the time it was necessary, who isn’t at risk of potentially being placed under guardianship?”
He adds that probate courts provide very little legal protection for people at risk of guardianships. Those protections get even weaker once the process is already underway: “The level of scrutiny that is applied to these filings is extremely low.”
Even so, Greene and Barker conclude, oversight is essential to prevent abuse.
Anthony Palmieri, former president of the National Guardianship Association, agrees, and his wise words end the article: “A guardianship is supposed to be a benevolent act to protect someone when all else has failed. It’s not supposed to be a business.”
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