Exploitation and financial abuse by some guardians and conservators remains a real problem that must be addressed, say U.S. Senators Susan Collins (R-ME) and Bob Casey (D-PA), the Chairman and Ranking Member of the U.S. Senate Special Committee on Aging at last week’s morning hearing, titled “Abuse of Power: Exploitation of Older Americans by Guardians and Others They Trust,” in the Dirksen Senate Office Building 562.
Cases of financial exploitation against older Americans have increased in recent years and have become more complex, and that many of these situations are not identified until the seniors have lost their homes, their savings, and even control of their own lives. Perpetrators include close friends, family, strangers, and, in some cases professionals who have been granted legal authority to control the individual’s life and finances.
Exploitation and Financial Abuse are a Real Problem
Recent press accounts of exploitation and financial abuse of seniors by guardians or others in positions of trust or power have called attention to the need for continued oversight in this area. One article published by the New Yorker in late 2017 titled “How the Elderly Lose Their Rights” documented the horrific story of a couple in Nevada who allegedly lost control of their lives and assets to a private guardian. The guardian was able to obtain a court order appointing herself as the couple’s guardian without providing any advance notice to the couple or their adult daughter.
“These cases highlight shocking breaches of trust by people who obtained positions of power or influence over vulnerable seniors,” said Senator Collins, in her opening statement. “An estimated 1.5 million adults are under the care of guardians, either family members or professionals, who control billions of dollars in assets. Guardianship, conservatorship, and other protective arrangements are designed to protect those with diminished or lost capacity, not to provide an opportunity for deception and financial exploitation.”
“While guardianship is supposed to be protective, and might sometimes be necessary, it can also bring a loss of rights,” said Senator Casey at the one hour and forty-two-minute hearing. “In order to protect seniors and people with disabilities we must ensure that the guardianship system is working on behalf of those under its care. We must all work together to ensure that guidelines are in place for properly vetting and performing background checks on all guardians.”
The Senate panel hearing held on April 18, 2018, continues the Committee’s efforts to identify opportunities to help ensure older Americans are protected from exploitation or abuse by those in positions of power or trust. In addition, the hearing examined the role professionals play in both perpetrating these crimes as well as protecting seniors from predators. It also examined how states are confronting financial exploitation by guardians.
Reforming the Guardianship Program
Four expert witnesses testified, providing their insight on ways to improve the system.
Witness Nina Kohn, Professor and Associate Dean for Research at Syracuse University College of Law, gave an overview of the four fundamental problems she sees with the existing guardianship program: “First, some people who are subject to guardianship should not be. Second, many—indeed, probably most—people subject to guardianship are subject to more restrictive arrangements than they need. Third, a subset of guardian’s act in ways that violate the rights and insult the humanity of those they serve…Finally, existing systems and rules unintentionally create incentives that exacerbate these problems.”
In her testimony, Dr. Pamela Teaster, professor and Director of the Center for Gerontology at Virginia Tech, explained that efforts to improve the guardianship system have been hampered by a lack of data, noting that “despite estimates that some 1.5 million adults are under guardianship, in 2018, not one single state in the country can identify its people under guardianship…” She recommended that reform “take the form of greater clarity and training when persons assume the role of guardians…”
David Slayton, the Executive Director of the Texas Judicial Council, discussed the extent to which guardianships are overlooked at the state level. For instance, in Texas, there are 50,748 active guardianship cases, which are valued between $4-5 billion. Last year, the state legislature passed legislation to create a statewide registration and database that will require all guardians to register, complete an online training course, and undergo a criminal background check, he said.
Finally, Denise Flannigan, a Guardianship Unit Supervisor at Westmoreland (PA) County Area Agency on Aging, described the work her organization does to support up to 80 seniors as either power of attorney or guardian. Her team includes four aging care managers, two case aides, a fiscal officer, and a nurse who are responsible for making decisions regarding the health and well-being of the consumer while permitting as much autonomy as possible.
To watch the Senate Aging panel hearing, go to www.aging.senate.gov/hearings/abuse-of-power-exploitation-of-older-americans-by-guardians-and-others-they-trust_.