Why Guardianship Abuse Occurs

Many listeners were left shocked by our discussion about for profit-guardians—strangers— knocking on the doors of vulnerable elderly people and taking total control of their finances and lives.

Listeners wondered how people could become guardians in the first place. We asked Pamela Teaster, director of the Center for Gerontology Virginia Tech, and one of the few scholars in the country who studies guardianship, to explain:

Adult guardianship (also called conservatorship or termed fiduciaries) varies by state and is a legal process that occurs when a person can no longer make or communicate safe or sound decisions about his or her person, property, or both.

Typically, a petition (usually created by an attorney) is sent to the court by a person or entity explaining that he or she should have a guardian appointed and recommending who should serve. The petitioner may or may not be recommended or appointed as the guardian; family members are preferred to act in this role.

Requirements for who should serve as guardian differ by state and type: some are required to have training and pass tests; for others, the threshold is a willingness to serve and the absence of a felony conviction.

The court then appoints a guardian ad litem (the eyes and ears of the court) to provide information to help a judge determine whether the petition for guardianship is warranted. A court date is set to hear from all the parties; the proposed protected person may or may not be in attendance, and in all cases, the proposed protected person has legal representation. A judge then hears the evidence from all sides. If the judge determines that a guardianship is warranted, then he or she issues an order appointing the guardian and delineating the scope and duration of the guardianship (e.g., person, property, temporary, emergency).

Every state requires an initial accounting on behalf of the protected person and status reports on the person’s well-being periodically thereafter.

Then, as reporter Rachel Aviv pointed out during the hour, abuse can occur in states where guardians fill out "an emergency ex-parte petition, which provides an exception to the rule that both parties must be notified of any argument before a judge." They come to an elderly person's home, announce that they have become their guardian, and will take over their decision-making.

On top of everything else, there is little data on the guardianship system, including the people who become guardians to prey on elderly people, selling  and profiting off their belongings.

Listen to our full conversation about the abuse of elderly rights here.


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