Legalized Elder Abuse: Guardianships And Conservatorships

The American legal system has establishedGreer, approaching her 86th birthday, four years
"guardianships" for the specific purpose of protectingafter she and her family members battled the
vulnerable individuals--called "wards"--when a judge orMinnesota judicial system to free her from a
judicial officer determines that the ward'sguardianship/conservatorship nightmare that cost two
decisionmaking capability is so impaired that anotheryears of her life and drained her entire life
person--the "guardian"—needs to be given thesavings--nearly $700,000.
right to make these decisions. A guardianship isPeggy Greer’s situation is fairly typical. In 2004,
particularly appropriate for wards who are sufferingjust after she turned 81, her life was in crisis. Her
from Alzheimer's disease and related dementia, aseldest son, a drug addict, was living with her. After
well as advanced alcoholism and similar afflictions thatsuffering a back injury, she also became
render the person unable to care for his or her healthdrug-dependent. That summer, her daughter, Judith,
and other needs. A "conservatorship," twin to thepetitioned the local probate court to appoint her and
guardianship, is set up to conserve the ward's assets;her brother as Ms. Greer’s guardians and
the conservator acts as a custodian.conservators, claiming that her mother was "suffering
The legal obligations of the guardian and conservator.from dementia and chemical dependency," rendering
As defined above, these legal vehicles seemher "unable to arrange to her medical care," and
completely sensible and necessary. After all, people"unable to manager her estate (and) vulnerable to
who are so incapacitated that their decisionmaking isfinancial exploitation." The latter claim was particularly
unreliable obviously need professional assistance; leftrelevant, because Peggy Greer was about to inherit a
unprotected, their health and wealth are at risk. Thesubstantial amount of money.
law considers the connection between the guardianSubsequently, a local firm was appointed as the
(or conservator) and the ward to be "fiduciary" inguardian, and Wells Fargo was named as conservator.
nature, a legal relationship of confidence or trustDespite the fact that her condition had improved--she
between two or more parties. Indeed, for legalwas considered to be neither chemically dependent
purposes, a "fiduciary" duty requires the highestnor suffering from dementia--Ms. Greer was sent to
possible standard of care. It recognizes that the wardlive in a nursing home, at a cost of $5,700 per month.
needs to have utmost confidence, reliance and trustShe complained that she wanted to return to her
in the guardian or conservator, whose aid orhome, but her chemically-dependent son was still
protection is essential. The fiduciary, therefore, isliving there, and the guardian refused her request to
required to act at all times for the sole benefit andgo home.
interests of the ward, with absolute loyalty to thoseThe family, realizing that at least an interim solution
interests.was required to stem the outflow of funds from the
The reality of guardianships and conservatorships.inheritance, attempted to relocate her into a less
Unfortunately, vulnerable individuals are easy targetsexpensive assisted living facility; the guardian declined
for the unscrupulous. Equally unfortunate is the factthe request, arguing that "It would cost a lot to get
that the legal system, having established theseher discharged from one nursing home and admitted
processes, frequently fails to supervise how theyto a new one when we all anticipated she would be
actually work. Not surprisingly, when there is a lack ofreturned to her home pretty quickly."
oversight, as Elaine Renoire, a particularly experiencedPerhaps not surprisingly, that didn’t happen. The
observer of guardianships and conservatorships,family filed a petition to replace the guardian. Legal
warns in her website "(The system) operates toexpenses consequently skyrocketed. After a year of
ensnare the most vulnerable people in a larger andthe conservatorship, these fees totaled at least
larger trawling net, . . . a feeding trough for unethical$45,000; adding in the other costs, including the
lawyers and other 'fiduciaries' appointed by the courtsnursing home rent, the $226,800
to protect, but many of whom become nothinginheritance—which was one of the justifications
more than predators."for the conservatorship itself—was exhausted.
Victims of guardianships and conservatorships. Ms.Additional funds would be necessary.
Renoire argues that wards are easily exploited by theThe conservator, Wells Fargo, petitioned the court to
system, frequently forfeiting their freedom, property,sell Peggy Greer’s home, despite the fact that
"and their very lives," because, first, judges and courtthe guardian was trying to move her back into it.
administrators fail to monitor these processes, andNonetheless, Wells Fargo pursued the sale, claiming
second, the state legislatures and the federalthat "The protected person is not able to return to
Congress fail to regulate legal practices. The result?independent living."
According to Ms. Renoire, judges, who she claims areThe probate judge finally agreed to a "reverse"
either "uncaring" or "corrupt," fail to provide adequatemortgage, whereby a bank captures the equity in a
due process to the wards, who in turn fail to gethome in exchange for making periodic payments that
adequate notice of the proceedings that will result inallow the homeowner to remain in the home. In the
the determination of their competence. Even whencase of Ms. Greer—again, not particularly
they are notified, Ms. Renoire reports that they aresurprisingly—the bank that received the reverse
rarely defended by attorneys. And in those instancesmortgage was Wells Fargo.
for which counsel is provided, these lawyers, again inAt this point, Charles Heintz, the chemically-addicted
her words, "(Are often) too closely affiliated withson, died, which allowed Ms. Greer to return to her
other professionals who make their living in thishome.
special area, and do not properly represent theAlthough she was able to take care of most of her
victims' interests. Corrupt judges do not apply theown needs, she received constant, 24/7 care from a
required evidentiary standards in (adjudicatinghome health agency. The cost? $26,000 a month!
incompetence), and frequently fail to obey theAlthough her nursing home doctor recommended that
protective statutes . . ."this assistance be discontinued, the guardian refused.
So, what's the bottom line? According to "(GuardiansFinally, in January, 2007, the guardian agreed that this
and conservators) are given power of life and death,care, now totaling more than $55,000, should be
burying their wards in nursing homes where they arescaled back, a decision that neatly coincided with the
kept chemically restrained with unnecessary andliquidation of her funds. As her son described the
dangerous drugs; family members are denied any saysituation, "Once the money ran out, almost to the
in their care, and sometimes (they're) deniedday, suddenly the care was no longer needed." Peggy
visitation, except under guard at their own expense!"Greer summed it up this way, "My money was all
Is the system abusive? Is it possible that theused up, was all gone, without my knowledge or OK
guardianship/conservatorship system is as flawed asor anything."
is claimed? According to the February 15th, 2009The final tally, as of October, 2007, reported that
edition of the "Minneapolis Star-Tribune," the processthe total spent on her behalf since March 2005 was
is at least as ineffective as Ms. Renoire believes, and$672,808. The guardian and the conservator each
can be negligent--and perhaps corrupt--in practice.earned more than $11,000, with the conservator
The front-page headline blares: "2 years andearning an additional fee from the reverse mortgage.
$672,808 gone," with an accompanying picture of aThe amount owed by Ms. Greer: $ 48,388. Total
now-smiling older lady. She’s identified as Peggyassets remaining: zero.