By Joe Casey
While I tend to focus on the optimistic aspects of retirement, there are many legitimate areas of concern.
Will I outlive my money?
What will my health be?
What about health care?
How about long-term care?
But there’s another big concern that I was unaware of.
Guardianship is intended to protect people who are assessed as incapable of making decisions in their own best interest. Despite this worthy intention, the laws are currently fraught with loopholes that can be exploited, leading to fraud and elder abuse.
In this compelling piece in The New Yorker last fall, you’ll meet Rudy and Rennie North, married nearly 60 years at the time and living in a Las Vegas retirement community. They were victimized by a professional guardian organization, which had secured a court order to remove them from their home. The scene reads like a home invasion. Kidnapping.
And it was initially found to be legal. But in essence, this was an organized-crime like scheme of elder abuse, with co-opted doctors, nurses and court officials. The Norths’ liberty was immediately stripped away, their possessions were sold, and their estate was billed for services, draining their financial assets. Over time, they were heavily medicated by the physicians treating them. Truly horrific and outrageous.
Guardianship is administered at the state level in the U.S. and lacks universal standards and practices (Wood, 2016). Anyone can request guardianship of the ward, which grants decision-making powers over all aspects of a person’s life (Cox, 2015). Many guardianship hearings are not even attended by the person who is the subject of the hearing. In fact, many people are not represented by a lawyer (Rabiner, O’Keeffe & Brown, 2006).
The primary focus should be on what is in the older person’s best interests. However, in the North’s case, the professional guardian, the doctors and even the county court, were compromised by a predatory profit motive. In my view, all of these participants went far beyond having a conflict of interest to sheer greed and corruption. A simple ethical standard of doing what is right is a much higher bar than doing what appears to be legal. And it is sadly lost on some people.
Longer term, there are a number of policy reforms that can improve guardianship and provide greater protection.
States should level the playing field by requiring that people be present at their hearing and represented by legal counsel. Stronger evidence should be required to deem someone incapacitated (Falk & Hoffman, 2014) with a minimum of two independent evaluations (Wood, 2016). Guardians should be subject to reasonably rigorous background checks and more in-depth training (Wood, 2016). The guardians must be fully vetted and trained.
Court monitoring is inconsistent, primarily due to resource constraints (Wood & Quinn, 2017). Expanding the use of trained volunteers to check in periodically and formally report back to the judges can alert them earlier to fraud (Wood, 2016). Using volunteers keeps costs low. In my opinion, enhanced oversight should also include monitoring judges to ensure that their process is not just a cursory “rubber stamp” one. The guardians must be guarded.
Raising awareness of the signs of elder abuse, including guardianship fraud, can be helpful in detection and prevention. Many seniors interact with multiple types of professionals, such as doctors, lawyers and social workers. Enhanced training of those professionals can also be helpful (Rabiner et al., 2006). Professional advisers should be better informed.
Two alternative processes have been recommended that offer more flexibility – mediation and Supported Decision-Making. The latter leverages family members and friends to help the person better understand their choices and the ramifications (Wood, 2016). Both processes seek to increase the odds that decisions are better aligned with the values of the individual. and The individual needs a larger voice in the outcome.
Returning to the Norths, there’s some good news. First of all, their daughter Julie Belshe has become a Guardian Reform Advocate pushing for change. Second, the Norths have been awarded a judgment of $8.5 million by a Nevada court. While it won’t make up for what they endured, it does send a message. Third, April Parks, the “Professional Guardian”, has been indicted, along with others. She’s in jail and awaiting a trial in May.
I high recommend reading the The New Yorker article. If you’re retired, planning for retirement, and/or caring for aging parents, it offers a sober warning that’s wise to heed.
In the meantime, we’ll continue to applaud and root for Julie Belshe’s efforts to prevent others from suffering this type of abuse and we wish her parents well.
Joe Casey is an executive coach, who also helps people think through and create their Second Acts, at retirementwisdom.com
Cox, C. B. (2015). Social Policy for an Aging Society: A Human Rights Perspective. New York, NY: Springer, pp. 57-60.
Falk, E., & Hoffman, N. (2014). The role of capacity assessments in elder abuse investigations and guardianships. Clinics in geriatric medicine, 30(4), 851-868.
Rabiner, D. J., O’Keeffe, J., & Brown, D. (2006). Financial exploitation of older persons: challenges and opportunities to identify, prevent, and address it in the United States. Journal of aging & social policy, 18(2), 47-68.
Wood, E. F. (2016). Recharging adult guardianship reform: six current paths forward. Journal of Aging, Longevity, Law, and Policy, 1(1), 5.
Wood, E., & Quinn, M. J. (2017). Guardianship Systems. In Elder Abuse (pp. 363-386). New York: Springer.