America has a large population of adults who are approaching advanced age — and many of those adults are vulnerable to exploitation and abuse through the guardianship process.
In theory, guardianship should be a “last resort” option that’s only used when an adult is incapable of making important decisions. No one should be stripped of their rights to make their own personal decisions without an extremely good reason.
In reality, the courts sometimes rush to judgment and assign guardians in cases where it isn’t really necessary. For example, an individual might suffer a temporary illness or injury that leaves him or her incapacitate. Anxious relatives may petition the court for guardianship — and have it granted — even though there hasn’t been sufficient time to determine if the incapacitated individual will recover. By the time the individual does recover, his or her legal rights as an independent individual are gone.
Why do guardianship abuses happen? All too often, a guardianship petition has less to do with the welfare of the incapacitated person than it does the greed of the guardian. Sometimes, relatives are eager to access any money they believe will eventually become theirs anyhow when the incapacitated individual dies. They see guardianship as a good way to control the assets (and keep other relatives from pouncing). In other cases, professional guardians — who operate with little oversight — make their living charging their wards exorbitant fees for menial tasks.
There are a few steps that every adult should take to protect against guardianship abuses:
- Create an advance directive for health care.
- Obtain a durable power of attorney.
Putting your wishes in writing and electing someone to act on your behalf if the worst happens won’t guarantee your safety against guardianship abuses — but it will help. The person you name to act on your behalf will have an easier time managing your affairs and his or her presence may negate the apparent need for a guardian at all. At the very least, he or she can also use the documents to demonstrate your wishes to the probate court if it becomes necessary to contest the appointment of a professional guardian.