Use Estate Planning To Avoid Conservatorships and Protect Against Elder Abuse – Part 1 of 2
Elder abuse can take a wide variety of forms, but we think the worst of the worst is caused by unscrupulous conservators or adult guardians appointed by a court to care for seniors who are no longer able to care for themselves. And though you may not want to believe such a thing could happen, you need to know that without the right planning in place, even your loved ones in your own family who are seniors could be at risk.
In fact, there are currently 1.5 million American adults under conservatorship (or adult guardianship, depending on the state), with an estimated 85% of them over age 65. All total, these conservators control nearly $273 billion in assets. And a 2010 report by the Government Accountability Office (GAO) found hundreds of cases where conservators were involved in the abuse, exploitation, and neglect of seniors placed under their supervision.
EXPLOITATION DISGUISED AS PROTECTION
Although most of the reported abuse was committed by family members, an increasing number of elder abuse cases involving professional fiduciary conservators have made the headlines. The New Yorker exposed one of the most shocking accounts of elder abuse by professional guardians, and the abuse suffered by these victims is so horrendous, it’s hard to believe.
The case involved the owner of a Las Vegas adult guardianship agency, who was indicted on more than 200 felonies for using her guardianship status to swindle more than 150 seniors out of their life savings. The craziest part of this is that many of those seniors had loving and caring family members, who were unable to protect their senior family members.
That case and similar cases of criminal abuse by professional conservators and guardians across the country has shed light on a disturbing new phenomenon — individuals who seek conservatorship to take control of the lives of vulnerable seniors and use their money and other assets for personal gain.
These predatory conservators or guardians search for seniors with a history of health issues, and they’re often able to obtain court-sanctioned conservatorship with alarming ease. From there, they can force the elderly out of their homes and into assisted-living facilities and nursing homes. They can sell off their homes and other assets, keeping almost all the proceeds for themselves. They can prevent them from seeing or speaking with their family members, leaving them isolated, and even more vulnerable to exploitation.
What’s more, though it’s possible for a conservatorship to be terminated by the court if it can be proven that the need for conservatorship no longer exists, a study by the American Bar Association (ABA) found that such attempts typically fail. And those family members who do try to fight against court-appointed professional fiduciaries frequently end up paying hefty sums of money in attorney’s fees and court costs, with some even going bankrupt in the process.
AN OPEN DOOR FOR POTENTIAL ABUSE
Obviously, not all professional fiduciaries and conservators exploit the seniors (known as conservatees or wards) placed under their care. But with the combination of the exploding elderly population — many of whom will require conservatorships — and our overloaded court system, such abuse will almost certainly become more common. Indeed, as the swelling aging population strains court resources, strict oversight of professional conservators is likely to become increasingly more difficult, enabling shady adult guardians to more easily slip through the cracks.
Facing these facts, it’s critical for both seniors and their adult children to take proactive measures to prevent the possibility of such abuse. Fortunately, there are multiple estate planning tools and strategies that can dramatically reduce the chances of you or your elderly loved ones being placed under the care of a professional conservator against your or their wishes.
What’s more, because any adult could face court-ordered conservatorship if they become incapacitated by illness or injury, it’s crucial that every person over age 18 — not just seniors — have planning vehicles in place to prepare for their potential incapacity.
Should you become incapacitated and not have the proper planning vehicles in place, your family would have to petition the court in order to be granted conservatorship or guardianship. And it’s this lack of planning that leaves you vulnerable. In most cases, the court would appoint a family member as conservator, but this isn’t always the case.
If you have no living family members, or those you do have are unwilling or unable to serve or deemed unsuitable by the court, a professional fiduciary would be appointed conservator. And in certain cases, particularly when your family doesn’t live close by, conservatorship can be granted without your loved ones — or even you — being aware of it.
In the Las Vegas abuse case, for example, unscrupulous professional guardians were able to file emergency “ex-parte” (in secret) petitions seeking adult guardianship of vulnerable seniors they sought to exploit. The ex-parte status meant that neither the seniors, nor their family members were notified of the conservatorship hearing. Behind closed doors, the nefarious guardians convinced a judge that immediate adult guardianship was necessary to prevent their elderly victims from harming themselves.
When family members realized what had happened and tried to contest the guardianship and seek guardianship themselves, they were disparaged in court as being neglectful and only interested in their elderly relatives’ money. This led the court to deem those family members unsuitable, leaving the professional adult guardianship in place indefinitely.
A TOTAL LOSS OF AUTONOMY
Once you’ve been placed under court-ordered conservatorship or adult guardianship, you essentially lose all of your civil rights. Indeed, whether it’s a family member or a professional, guardians have complete legal authority to control every facet of your life. A few of the primary powers conservators/guardians have include the following:
Determining where you live, including moving you into a nursing home
Complete control over your finances, real estate, and other assets
Making all of your healthcare decisions and providing consent for medical treatments
Placing restrictions on your communications and interactions with others, including family members
Making decisions about your daily life such as recreational activities, clothing, and food choices
Making end-of-life and other palliative-care decisions
Given the extreme power conservatorship affords, courts are supposed to exercise tight oversight over conservators, yet most states provide only cursory supervision. What’s more, states often don’t even keep complete records of conservatorship cases, and those states that do keep records typically keep the records sealed from public view.
Indeed, the 2010 GAO report noted,
“We could not locate a single Website, federal agency, state or local entity, or any other organization that compiles comprehensive information on this issue.”
With no government agency tasked with preventing abuse by conservators acting in bad faith, it’s up to you to protect yourself through proactive estate planning.
Tomorrow, we’ll continue with part two in this series on how to avoid conservatorships and potential elder abuse — through proper estate planning.
Our Personal Family Lawyer® can guide you to make informed, educated, and empowered choices to protect yourself and the ones you love most. Contact us today to get started with a Family Wealth Planning Session.
This article is a service of J.A.A. Purves, Personal Family Lawyer® . We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That's why we offer a Family Wealth Planning Session™, during which you will get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session.