Guardianship and Elder Mistreatment
Guardianship and Elder Mistreatment
Guardianship is a relationship created by state law in which a court gives one person or entity (the guardian) the duty and power to make personal and/or property decisions for another whom the court has found unable to make such decisions. Terms vary by state, but frequently a “guardian” makes personal and health care decisions, and a “conservator” makes financial decisions. In this summary, the generic term “guardianship” refers to both, unless otherwise indicated.
Guardians are appointed by the court to protect an at-risk individual, and often to prevent or address abuse. While many guardians act in the individual’s best interest, some take advantage of those they were named to protect — making guardianship both a solution to and a source of elder abuse.¹
Despite tragic media exposés,² the extent of guardianship abuse is unknown, as data is scant to nonexistent. Courts need data to monitor guardianship practice, and policymakers need data to target necessary improvements.
Most states lack even basic information on the number of adults subject to guardianship. Given insufficient state data, national figures have been estimates at best. In 1987, the Associated Press referenced “300,000 to 400,000 elderly people” under guardianship.³ In 2011, researchers from the National Center for State Courts (NCSC) calculated there may be 1.5 million adults subject to guardianship across the country,⁴ and in 2016, estimated 1.3 million open cases.⁵
There are significant challenges in collecting consistent court data, for example:
- State and local courts have different technology, databases, and definitions
- Many courts lack funding for technology to track guardianship cases
- There may not be a distinct field for adult guardianship data, separate from probate data or from minors
- Data may be collected going forward, but older open cases are not included
- Data may be collected on the number of filings, but not on the number of open cases, demographics, the number of limited orders and restorations of rights, or key monitoring events
- There may be no data indicating abuse or exploitation, such as the number of removals of guardians for cause
- It is difficult to track use of less restrictive options used instead of guardianship
Recent recommendations and resources have recognized and begun to address the compelling need for adult guardianship data:
- In 2020 NCSC released a report⁶ on Guardianship/Conservatorship Monitoring: Recommended Data Elements, to provide guidance on consistent collection of data.
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The U.S. Administration for Community Living developed a National Adult Maltreatment Reporting System (NAMRS) as a national reporting system for Adult Protective Services that includes elements on abuse by surrogate decision-makers including guardians.⁷
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The Fourth National Guardianship Summit, convened by the National Guardianship Network in 2021, made a number of recommendations to improve guardianship practices nationwide. Recommendations included statewide data collection systems, standardized forms for financial management plans and personal care plans, regular reviews and verification of guardians’ reports, periodic visits of the ward to assess their well-being, annual in-person court review, and the establishment of a complaint process supported by an independent statewide investigative body to investigate alleged malfeasance by guardians.⁸
¹ Wood, E. (Fall 2012). The Paradox of Adult Guardianship: A Solution to – and a Source for – Elder Abuse. Generations, Vol. 36, No.3, 79-82.
² Aviv, R. How the Elderly Lose Their Rights, The New Yorker, October 9, 2017; Balch, B., Unguarded: A Three-Part Series on How Richmond’s Guardianship Process Leaves Vulnerable People Unprotected, Richmond Times Dispatch, November-December 2019, https://www.richmond.com/news/local/unguarded-a-three-part-series-on-how-richmond-s-guardianshipprocess-leaves-vulnerable-people-unprotected/article_d39e242e-9213-5600-8150-da9566c143b7.html
³ Bayles, F. & McCartney, S. (1987). Guardianship of the Elderly: An Ailing System, Associated Press, September 20, 1987.
⁴ Uekert, B. & Van Duizend, R. (2011). Adult Guardianship: A ‘Best Guess’ National Estate and the Momentum for Reform, National Center for State Courts, Future Trends in State Courts 2011.
⁵ Montgomery, L. (2016). State Court Leaders Strive to Improve Guardianship and Conservatorship Oversight, National Center for State Courts, Backgrounder.
⁶ National Center for State Courts (2020). Guardianship/Conservatorship Monitoring: Recommended Data Elements. Retrieved from http://www.eldersandcourts.org/__data/assets/pdf_file/0029/54758/GuardianshipConservatorship-Monitoring-Recommended-Data-Elements.pdf
⁷ U.S. Administration for Community Living. National Adult Maltreatment Reporting System. Retrieved from https://namrs.acl.gov/
⁸ Fourth National Guardianship Summit: Maximizing Autonomy and Ensuring Accountability, May 2021. Recommendations adopted by summit delegates. Syracuse Law Review, 2022; 22:29–40.