Guardianship is difficult for many families. It is especially difficult for those who are just competent enough to realize they are losing much of their autonomy yet not competent enough to carry on their own affairs. So it is even more unthinkable that many guardians every year take advantage of vulnerable seniors and prey on their trust and weakness. As with all forms of greed, the facts tend to show that the greater the wealth, the greater the likelihood of abuse. Here are just a few ways that guardians abuse their wards.
Creating New Estate Planning Documents
Some guardians will have the incompetent person sign powers of attorney or wills and trusts designed to leave everything to the guardian. Typically the goal is to avoid courts, so trusts and powers of attorney – especially property powers – are the most common. One would think ethical attorneys would never participate in helping a guardian do this, but sadly there are many unscrupulous attorneys who have no problem doing so.
Many guardians may need to liquidate tangible property to prepare a house for sale after the ward enters a nursing home or must downsize. They tell their wards, and often the families, that they had a certified appraiser review the tangible property, and the value is $25,000. While family may be quite shocked, they often do not question such an official and certified appraiser. Then, the guardian makes contact with potential buyers from liquidation companies who buy estate property. They in turn buy all the goods, load them into a truck and haul them away. The money is paid, and all seems well. Sadly, what was hidden from the appraiser was $100,000 worth of collectibles and family heirlooms.
Allowing Foreclosures or Other Losses
Any guardian who pays himself before the mortgage is committing a grievous error and is indeed committing fiduciary abuse. However, this is sadly quite common. Even some well-trained professional guardians have allowed homes to be foreclosed and vehicles to be repossessed so that they could ensure their own payment. They do not make diligent efforts to negotiate payments or reduce the impact of financial harm.
It seems crazy to believe that in this day and age doctors would falsify a diagnosis of Alzheimer’s disease or other mental impairment. However, guardians often doc-shop, looking for a favorable diagnosis so that they can remain in power over an affluent incompetent person. There is also the chance of misdiagnosis. Sometimes a guardian will take the ward to dozens of doctors. Eventually, as with any professional opinion, if the person does have even the smallest infirmity, there is a chance a doctor will agree that the person has limited capacity. They get a report, and voila, they now have what they need to justify continuing guardianship.
When a guardian is in place for a loved one, family members should remain diligent and routinely ask for an accounting and inventory of assets, funds, and tangible property. If at any time a guardian refuses, contact an elder law attorney immediately.