A Broken System? A Look into Guardianships and How States Look to Reform the System

by Caroline Hardig, Associate Member, University of Cincinnati Law Review Vol. 91

I. Introduction

There are nearly two million active guardianship and conservatorship cases in the United States.¹ Guardianships are court-ordered relationships where an adult acts on behalf of and makes decisions for another person.² In a guardianship, a person loses their legal rights and the ability to act for oneself.³ Because of the control that a guardian has over someone else’s daily decisions, the most vulnerable can be taken advantage of through fraud and abuse.⁴

This article explores guardianships in the United States. Part II provides background on guardianships, the fraud and abuse that can occur because of relaxed laws and policies, and Nevada’s step to reform the broken system. Part III calls for guardianship reform and Part IV concludes by urging all individuals to be informed about guardianships.

I. Background

A. Broken System

Traditionally, courts grant guardianships for adults who have disabilities, mental health crises, or the elderly who are unable to care for themselves.⁵ Guardians take control of the person’s finances and health care decisions.⁶ Legal rights are completely lost for adults under guardianship, which often requires them to need permission for both significant and inconsequential decisions.⁷ For example, they may need permission from their guardian to marry, visit friends, or to have their own debit card.⁸ Often, adults who need to be placed under guardianship will have a family member or loved one as a guardian.⁹ However, if no family exists or wants to be a guardian, other people can fill the role.¹⁰

Guardianships are a big business and experts estimate guardians manage over fifty billion dollars in assets.¹¹ In Indiana, Debra Woods has been named a guardian in more than 420 since 2016.¹² Woods is a professional guardian and is nationally certified, even though certification is not required in Indiana.¹³ Most of her clients live in nursing homes where she oversees their “care, custody, and property.”¹⁴ Since Indiana does not limit the number of cases a guardian can have, she is able to earn over thirty dollars a month for each client she oversees.¹⁵ In one year, if Woods had two hundred clients, she would make almost ninety thousand dollars.¹⁶

In addition to individuals who can serve as guardians, corporations can as well.¹⁷ Like individuals, corporations are court-appointed.¹⁸ One nonprofit, Ayuando Guardians, received over $300 per month for each client from a contract with the State of New Mexico.¹⁹ In addition, Ayuando had private clients, where they charged over $900 a month.²⁰

B. Fraud and Abuse

The Department of Justice lists guardian abuse to be “financial, physical, emotional/psychological or any other type of abuse of an older person or person with a disability.”²¹ While it is unknown how many cases year involve guardianship fraud and abuse, more than one million cases are filed annually with Adult Protective Services.²²

The nonprofit Ayuando Guardians engaged in fraud when it stole nearly twelve million dollars from clients.²³ In addition to stealing money, Ayuando Guardians subjected its clients to abuse.²⁴ It placed one victim “into a boarding home where he was beaten in the face and swarmed by bedbugs.”²⁵ The victim’s mother later found her son living in a garage with no shower and exposed wiring.²⁶ While Ayuando Guardians was recommended by her lawyer, she was outraged when a judge assigned the company as her son’s guardian.²⁷ Eventually, an investigation into Ayuando Guardians by the Department of Justice led to the prosecution of the nonprofit’s directors.²⁸ CEO, Susan Harris, pled guilty to aggravated identity theft, mail fraud, money laundering, and conspiracy.²⁹

Fraud and abuse can also occur from individuals who serve as guardians. One woman in Florida was charged with abuse and neglect after she obtained an order to cap her seventy-four-year-old client’s feeding tube.³⁰ This order, against doctor’s advice, led to the man’s death.³¹ Furthermore, April Parks, a court-appointed guardian from Nevada, stole more than half a million dollars from her clients.³²

C. Nevada’s Solution

Since 2017, Nevada has required an independent lawyer to be assigned to each person to whom a petition for guardianship is filed.³³ While many state laws say that people under guardianship have a right to counsel, Nevada requires a lawyer to be assigned before a petition is approved.³⁴ These lawyers are like public defenders, in that they are court-appointed and the legal representation is free.³⁵ In Ohio, the person to whom the petition is against may have an attorney at no cost, but the representation is not required.³⁶

In 2022, an American Bar Association survey examined state laws concerning guardianships.³⁷ In Maine, counsel is appointed only upon request.³⁸ Twenty-one state statues say “counsel ‘shall’ be appointed” and twenty-five states say, “entitled to,” “right to be represented,” or “can request counsel.” However, Nevada uses more strict language and goes further by saying the “court must appoint counsel.”³⁹

In addition, Florida has followed Nevada’s lead and requires courts to appoint a lawyer unless the person wishes to retain their own counsel.⁴⁰ Florida also sets rigid standards for guardians to protect those potentially placed under a guardianship.⁴¹ For example, the guardians must pass a criminal and financial background check, complete training and continuing education courses, and submit annual reports “regarding medical care, treatment, and finances, and outlining any activities that enhance the capacity of the person they are helping.”⁴²

III. Discussion

Guardianship reform is needed to protect the most vulnerable.⁴³ First, each state should follow Nevada’s lead and require legal representation for each person to whom a guardianship petition is filed. This legal representation can adequately protect due process rights and ensure their voices are heard.⁴⁴

Second, states should also require strict guidelines for guardians. Limits on how many people a guardian can oversee would ensure that each person receives adequate care. To hold guardians accountable, states should follow Florida by requiring training, continued education, and background checks.⁴⁵ In addition, courts should require frequent reports that thoroughly describe who they are caring for and any updates regarding that person’s care. If the reports are vague or falsified, guardians should face consequences.⁴⁶

While guardianship reform is needed, it is also important to emphasize how guardianship should be a last resort option.⁴⁷ There are many alternatives to guardianships that can provide adequate protection for non-financial matters.⁴⁸ For example, the Ohio Developmental Disabilities Council lists the following alternatives: general powers of attorney, health care power of attorney, education power of attorney, protective services, protection orders, and conservatorships.⁴⁹

IV. Conclusion

Guardianships have the potential to impact a friend or a family member directly.⁵⁰ It is important for people to be informed about guardianships and how to be aware of the fraud and abuses that can occur. As voters, we can look to our state legislatures to push for guardianship reform to ensure that the most vulnerable are protected.⁵¹

Cover Photo by Ave Calvar on Unsplash

Caroline Hardig

Prior to law school, Caroline Hardig attended the University of Kentucky where she received a degree in Psychology and a minor in Spanish. Caroline enjoys writing about various areas in the law. In her free time she likes to exercise, spend time with friends and family, and watch sports.

References

1
Ronnie Greene & Holly Barker, Guardians’ Dark Side: Lax Rules Open the Vulnerable to Abuse, Bloomberg L. (Mar. 6, 2023), https://news.bloomberglaw.com/interactive/guardians-dark-side-lax-rules-open-the-vulnerable-to-abuse.
2
Guardianship in Ohio, Ohio Dev. Disabilities Council (2018), https://ddc.ohio.gov/resources-and-publications/guardianship/guardianship-in-ohio.
3
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4
See Greene & Barker, supra note 1.
5
Greene & Barker, supra note 1.
6
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8
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9
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10
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11
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12
Ronnie Greene, 420 Cases, One Guardian: System Runs Amok on Just $35 a Month, Bloomberg L. (Mar. 8, 2023), https://news.bloomberglaw.com/us-law-week/420-cases-one-guardian-system-runs-amok-on-just-35-a-month?context=search&index=10.
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17
See Greene & Barker, supra note 1.
18
Law Facts: Guardianships, Ohio State Bar Ass’n (Apr. 10, 2014), https://www.ohiobar.org/public-resources/commonly-asked-law-questions-results/law-facts/law-facts-guardianships/.
19
Greene & Barker, supra note 1.
20
Id.
21
Mistreatment and Abuse by Guardians and Other Fiduciaries, Dep’t of Just., https://www.justice.gov/elderjustice/mistreatment-and-abuse-guardians-and-other-fiduciaries (last visited Mar. 28, 2023).
22
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30
David Smith, ‘99% of the World Has No Idea’: Inside the Shocking Legal Guardianship Industry, The Guardian (Feb. 18, 2021), https://www.theguardian.com/film/2021/feb/17/99-of-the-world-has-no-idea-inside-the-shocking-legal-guardianship-industry.
31
Id.
32
Ronnie Greene, Guardians’ Abuses Persist as One State’s Easy Fix Goes Unmatched, Bloomberg L. (Mar. 3, 2023), https://news.bloomberglaw.com/business-and-practice/guardians-abuses-persist-as-one-states-easy-fix-goes-unmatched?context=article-related.
33
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34
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35
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36
Guardianship in Ohio, supra note 2.
37
Representation and Investigation in Guardianship Proceedings Statutory Revisions as of December 2022, Am. Bar Ass’n Comm’n on L. & Aging (Dec. 2022), https://www.americanbar.org/content/dam/aba/administrative/law_aging/chartrepresentationandinvestigation.pdf.
38
Greene, supra note 32.
39
Nev. Rev. Stat. § 159.0485 (2023).
40
Heather Kirson & Howard Krooks, Uniform Guardianship Would Strengthen Adult Protection in Florida, Bloomberg L. (Mar. 15, 2023), https://news.bloomberglaw.com/us-law-week/uniform-guardianship-would-strengthen-adult-protection-in-florida?context=search&index=3.
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43
Dinerstein et al., Modern Laws and Out-of-Court Solutions Can Advance Guardianship, Bloomberg L. (Mar. 9, 2023), https://news.bloomberglaw.com/us-law-week/modern-laws-and-out-of-court-solutions-can-advance-guardianship?context=search&index=8.
44
Kirson & Krooks, supra note 40.
45
See id.
46
See Dinerstein et al., supra note 43.
47
See Ronnie Greene, Senators to Seek Alternatives to ‘Civil Death’ of Guardianship, Bloomberg L. (Mar. 28, 2023), https://news.bloomberglaw.com/us-law-week/senators-to-seek-alternatives-to-civil-death-of-guardianship?context=search&index=2.
48
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49
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50
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51
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