Combating Guardianship Abuses Against Older Adults

/ Blog Post

By Allie Yang-Green, senior program manager of public programs, and 2020 Fellows Barbara Harris and Amy Perry. Barbara is hosted by Montana Legal Services Association and Amy is hosted by Equip for Equality.

Guardianship* or other forms of supportive decision-making may become necessary to ensure the safety and quality of life when individuals lose the capacity to make decisions about their health care, finances, or other aspects of life. This may occur due to dementia, stroke, brain injury, or other serious health issues. When a guardian or an otherwise authorized agent fails to act in a protected adult’s interest and undermines their ability to direct their own life, legal advocacy is a critical resource safeguarding their rights.

In rural Montana, Jerry* lived in his own house while experiencing physical and mental health declines as he grieved the loss of his wife. One of Jerry’s sons convinced Jerry to put his name on the home’s deed and allow him to move into the house. As Jerry’s health further deteriorated, his son and grandson tried to move Jerry to a long-term care facility, reporting false claims to law enforcement that he exhibited signs of violence and dementia. They also spent Jerry’s money for their own uses. Jerry’s medical providers did not believe the claims of the son and grandson and supported his independence, giving Jerry the opportunity to leave his home and stay with another relative to avoid the abuse.

To exert a greater control, Jerry’s son and grandson petitioned the court for guardianship, alleging Jerry’s deteriorating abilities. Although a temporary guardianship was granted, 2020 Fellow Barbara Harris intervened to represent Jerry’s interest and prevent the son and grandson from becoming Jerry’s permanent guardians and moving him into a long-term facility against his wishes.

Another common tool used to help manage older adults’ affairs is a power of attorney (POA), where a person designates someone as their agent and determines which powers to give to them. POAs can be created easily without a lawyer. However, abuse can occur through POAs when an agent fails to honor their duty to act consistently with the directions and interests of the principal. Moreover, the private nature of POA’s can also lead to abuse being undetected.

Following a stroke, Jim* had appointed his relative as a POA for healthcare decisions, but this POA agent breached fiduciary responsibility by not paying three months’ worth of charges for Jim’s residential rehabilitation facility. With help from the local Area Agency on Aging, Jim was able to get the POA agent revoked and name new agents for his healthcare and Social Security benefits. In response, Jim’s relative petitioned the court for guardianship so that he could gain greater control over Jim and his estate. Jim was referred to 2020 Fellow Amy Perry, who was able to successfully argue before the court to prevent the agent’s request to access the client’s medical information, protecting Jim’s right to privacy. Amy continues to litigate the case and protect Jim’s independence and financial well-being.

Upholding the rights of older adults to make their own decisions based on their own values and preferences to the greatest extent possible is central to client-centered legal advocacy.

Certain situations may call for attorneys to assess the client’s mental capacity and even take reasonable protective actions but upholding the rights of older adults to make their own decisions based on their own values and preferences to the greatest extent possible is central to client-centered legal advocacy. Amy notes that ageism and ableism present in our society can result in systemic prejudice against older clients, and advocates must always take steps to support the maximum empowerment of all clients and their rights to direct their own lives.

Visit here to learn more about the work of Elder Justice Program and the work of Fellows who are addressing the gap in civil legal services for victims of elder abuse and exploitation.

* The term “guardianship” is often used interchangeably with “conservatorship” and any other term for the judicial process of appointing a fiduciary to manage all or part of the financial and/or personal affairs of an individual.

** The name of the client has been changed to protect privacy.

This program is supported by the Office for Victims of Crime, Office of Justice Programs, U.S. Department of Justice, Award Number 2019-V3-GX-K033. The opinions, findings, conclusions or recommendations expressed are those of the author(s) and do not necessarily represent the official position or policies of the U.S. Department of Justice or Equal Justice Works.

Resources on Guardianship and Supportive Decision-making: 

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