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Helping Older Adults Escape Guardianship and Assert Independence
/ Fellows in Action
2020 Elder Justice Program Fellow Amy Perry shares client stories from her work helping older adults exploited as subjects of guardianship.
When an individual has lost the capacity to make decisions about their health care, finances, or other aspects of life, forms of supportive decision-making granted by courts, such as guardianship*, can be useful tools for ensuring safety and quality of life. Beneficiaries of guardianship often have serious health issues which may impact their decision-making ability, such as dementia, stroke, brain injury, or substance use disorder. However, subjects of guardianship are also vulnerable to exploitation because their court-appointed guardians have the authority to make personal and financial decisions on their behalf. 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 for asserting the protected adult’s rights.
2020 Elder Justice Program Fellow Amy Perry is a zealous advocate for older adults and has seen firsthand how guardianship can be wielded against the very people it is intended to protect.
In one of Amy’s cases, Tamara** was placed under plenary guardianship during the pandemic, but the guardian was using their authority to financially exploit Tamara. With Amy’s representation, Tamara successfully contested the guardianship. Since escaping the oppressive guardianship, Tamara has reclaimed her independence by moving into her own housing and obtaining a drivers license. Tamara is grateful for Amy’s help in attaining her goals at a time when she had been separated from both her resources and her rights.
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 POAs can also lead to abuse remaining undetected.
Amy also represented Zach**—a client with aphasia, dementia, and paraplegia—whose wife had a power of attorney, which she used to mortgage their shared mobile home and property. She received all the cash proceeds for the mortgage and didn’t inform Zach about any of the financial affairs, thereby violating her fiduciary duty as POA. With Amy’s help, Zach was able to testify in court in a divorce action filed by his wife. Zach’s testimony laid the foundation for the admission of 20 exhibits illustrating how he was financially exploited by his wife. Amy was successful in representing Zach and helping to make him whole after financial exploitation: the court issued a divorce and ruled that Zach’s ex-wife must pay him over $80,000 as his share of the mobile home and real estate.
Amy completed her Fellowship in April 2023 and continues her work to help older adults escape predatory guardianships and regain independence as an attorney for the Illinois state government. Due to her tireless effort advocating for older adults, she was recently appointed to the Office of State Guardian (OSG) Legislative Committee by the Illinois State Director of OSG. One of Amy’s personal goals is to draw attention to the right of persons under guardianship to direct notice of all proceedings in their guardianship case.
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. Visit here to learn more about Amy’s project and continuing work.
*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.
**Client names have been changed to protect privacy.
This program is supported by an award from 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: