Problems with Guardianship Abuse Leading to Calls for Reform

March 18, 2016

A growing problem with adult guardianship abuse is causing calls to reform the system. Vulnerable elderly can get caught in the guardianship system, being harmed and exploited by the very process that is supposed to protect them.

A guardian is someone appointed by a court to make decisions on behalf of an incapacitated individual (“ward”). The guardianship process usually starts when a family member or social worker notifies the court that someone can’t take care of him- or herself. The court often appoints a family member as guardian. However, if the family can’t agree on a guardian or there is no family to act as guardian, the court may appoint a public guardian. Public guardians are supposedly neutral individuals who are hired to act in the ward’s best interest.

Unfortunately, in many states, the lack of court oversight combined with poorly trained guardians has led to reports of abuse. Once the court appoints a guardian, that guardian has complete control over the ward’s property and finances. Guardians can block family visits, determine where the ward will live, and sell property. In addition, guardians charge fees for their services that are payable from the elderly person’s bank account, which can cause corruption. When a senior gets caught up in the guardianship system, it can be very difficult to get out. There are many stories about seniors who are confused and overwhelmed after losing control of their lives to a guardian they don’t know.

In response to complaints by advocacy groups about guardianship abuse, Florida passed a law in March 2016 instituting changes to its public guardian system. The law creates an Office of Public and Professional Guardians that is required to create standard practices and rules for public guardians. The office also has enforcement power to revoke a guardianship.

If you think a loved one needs a guardian, consult with your attorney to determine the best steps. There may be less restrictive alternatives to guardianship.

In addition, if your family can’t agree on the best course of action for your elderly loved one, before fighting over guardianship in court, consider elder law mediation.

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What Is Undue Influence?

Saying that there has been “undue influence” is often used as a reason to contest a will or estate plan, but what does it mean?

Undue influence occurs when someone exerts pressure on an individual, causing that individual to act contrary to his or her wishes and to the benefit of the influencer or the influencer’s friends. The pressure can take the form of deception, harassment, threats, or isolation. Often the influencer separates the individual from their loved ones in order to coerce. The elderly and infirm are usually more susceptible to undue influence.

To prove a loved one was subject to undue influence in drafting an estate plan, you have to show that the loved one disposed of his or her property in a way that was unexpected under the circumstances, that he or she is susceptible to undue influence (because of illness, age, frailty, or a special relationship with the influencer), and that the person who exerted the influence had the opportunity to do so. Generally, the burden of proving undue influence is on the person asserting undue influence. However, if the alleged influencer had a fiduciary relationship with your loved one, the burden may be on the influencer to prove that there was no undue influence. People who have a fiduciary relationship can include a child, a spouse, or an agent under a power of attorney. For more information on contesting a will, go here.

When drawing up a will or estate plan, it is important to avoid even the appearance of undue influence. For example, if you are planning on leaving everything to your daughter who is also your primary caregiver, your other children may argue that your daughter took advantage of her position to influence you. To avoid the appearance of undue influence, do not involve any family members who are inheriting under your will in drafting your will. Family members should not be present when you discuss the will with your attorney or when you sign it. To be totally safe, family members shouldn’t even drive or accompany you to the attorney’s office. You can also get a formal assessment of your mental capabilities done by a medical professional before you draft estate planning documents. For more information on preventing a will contest, go here.

July 14, 2016

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