Involuntary guardianships are a problem for ANYONE in the 70+ age bracket. But they are even more a problem for:
- Those living alone — because you don’t have that spouse/partner as a first level of defense.
- Anyone who appears (to a casual observer or a cyber stalker) to have a nice nest egg.
Involuntary guardianships were established to help people who can no longer care for themselves. But they have become, according to The Con Game — A Failure of Trust, “An open invitation to potential abuse.”
Here are just some of the problems that make this legal procedure unconscionable in how it is administered:
- It’s impossible to know how many people are under guardians — because many states don’t keep good records. AARP guessed 1.5 million in 2013, but admitted they don’t really have a clue.
- There’s a shortage of judges, so many judges making these decisions don’t even have a law degree. Your “judge” could be the owner of a local car dealership.
- About 40% of all states & municipalities don’t do criminal background checks on people they appoint as guardians(!!)
- Forbes — in a great article on this topic — found 60% of guardians never had a credit or financial check run. Yet they are given total access to and control of your money! They can sell your house, your stocks, etc. and charge you exorbitant “fees” for everything — fees that quickly move your money into their pockets. And it’s a LOT of money. Forbes found total dollars controlled by guardians in just Idaho and Minnesota to be over $1 billion.
- Courts in all states allow exparte hearings on involuntary guardianships. This means that only the petitioner (the one who wants to steal your money) has to be there. The judge doesn’t even have to see — much less talk to — the person whose life s/he is about to ruin.
- Almost every single petition for involuntary guardianships is granted by the courts.
- Once you have been involuntarily assigned a guardian — it’s 99.5% impossible for you to reverse it.
- You can no longer hire an attorney to try to reverse such a ruling — because the court has already declared you incompetent to do anything such as hire an attorney(!) AND your new guardian controls all your money so you couldn’t pay one(!)
- The courts have almost no money to monitor guardians — so almost nobody is.
- And… abusive guardians isolate their “wards” by selling their houses out from under them — then moving them to cheap nursing homes away from family or friends.
After a spate of irate articles, and studies showing how bad this system is, many states have passed new laws trying to protect seniors. The federal government after decades of squashed bills finally enacted an Elder Abuse and Prevention Act in 2017. It says “DOJ must publish best practices for improving guardianship proceedings and model legislation related to guardianship proceedings for the purpose of preventing elder abuse.” But nowhere does it provide funding to monitor whether or not these guidelines are actually being followed.
These problems have come to light through investigative journalism — a profession that has fewer and fewer practitioners and resources as newspapers shrink. Until funds exist in each state for investigators to monitor guardianships, these abuses can continue.
How you can protect yourself
There’s no complete protection for any of us. There are, however, things we can do to make this less likely:
- Drawing up a POA (Power of Attorney) that gives control of you and your affairs to a trusted friend or family member (who is younger than you!) is the only guaranteed method of preventing an unknown crook from targeting you for an involuntary guardianship. It’s too late, once someone else files and receives guardianship of you, to try to get it transferred to a friend. The person now holding the guardianship can always find a reason why the friend or family member would be a risk.
- However, with this strategy, you then run the risk of abuse from that friend or family member. About 80% of all guardianships are with relatives — and some of the worst abuses come from those same relatives.
- Research cited in The Con Game shows the most likely relative to isolate and financially abuse a senior is a son or daughter who lives with the senior and is dependent upon them for support.
- Reducing the assets that can be stolen. Primarily these tactics include annuities and reverse mortgages. The goal is to turn your assets into monthly income instead of large balances. Crooks can’t sell your house for money if you already have a reverse mortgage. And they can’t remove money from your accounts if you already used that money to buy single-premium annuities — immediate and/or deferred. This makes you much less attractive to a professional crook in cahoots with a crooked judge — who file for emergency involuntary guardianships so they can strip out your assets.
- If you have money you want to leave to people or non-profits, you can still utilize this tactic. Just set up an irrevocable trust for those you want to inherit from you, then use your remaining assets to buy income streams.
- Make sure if you are considering the above to talk first to an estate attorney!
- Limit knowledge to people/organizations who could file against you “for your own good.” Social security, veterans organizations, and many, many others keep a look out for seniors who, in their subjective opinions, might be “slipping.” You want to avoid coming to their notice. Here are some ways to do that:
- Make sure any checks you receive regularly are automatically deposited. This way nobody can assume you’re slipping because a check wasn’t deposited –while you’re hanging out somewhere warm for the winter.
- Make sure your monthly expenses (rent, mortgage, electricity, real estate taxes, etc. etc.) are automatically deducted from your bank. Not paying a utility bill for a month or two can be used as proof you’re slipping.
- Don’t let mail build up in a PO Box or a home mailbox. If you’re going to be away for 10 days plus, hold the mail or have it sent to your new location.
- Never let a hospital do an MRI of your brain — for ANY reason unless you’re considering brain surgery. (See post here on “Your Brain is Shrinking” for how this normal shrinkage of your brain can be used to show you’re incompetent — even when you are not.)
- Watch out for neighbors. Some people think anyone who is a little frail or occasionally forgetful should be in a home — for their own good. I had church members tell me — vehemently! — I should put my mom in a home when she was perfectly capable of living and managing on her own.
- Neighbors may mean well, but have this fear — “What if something happens?” That fear of theirs should not be able to override what each individual wants. If a senior wants to be in a home or assisted living because s/he’s afraid something bad might happen — great. If the senior wants to stay at home — that should also be great.
- Just because we’re old and maybe a little forgetful doesn’t mean someone else should be able to take over our lives. Consider some of the young and middle-aged idiots you know who regularly harm themselves from the stupid decisions they make. Then consider that our society thinks it’s fine those people are in charge of their own lives — but we shouldn’t be?
Note: Of course there are instances where seniors truly can’t take care of themselves. We can all sympathize with children and friends struggling with this problem. But there are entire industries eager to jump in and help you protect seniors who truly can’t help themselves. This blog is one of the few voices for the 75% of seniors who should be allowed to make their own damn decisions.
Another note: I tried to get two different elder law firms to discuss this with me, and they both refused. Most elder law firms make their money from elders making estate plans and from their children setting up voluntary guardianships. Criminal attorneys are more likely to get involved. My father had several cases where he represented seniors whose kids were trying to have them declared incompetent so they could access their money.
Author bio
Marlene Jensen, at 73-years-old, just retired from being a full-time marketing professor. Previously she was a VP at CBS and ABC and spent decades as an entrepreneur and pricing author/consultant. Sadly, none of these prepared her for the onslaught of marketers who now think her daily interests/needs consist solely of hearing aids, wheel chairs, adult diapers, medi-alert buttons, medications, and bath tubs you walk into.