Guardianship

Netflix’s popular new movie, I Care a Lot, may be far-fetched in a lot of ways. However, it does highlight some real weaknesses in the guardianship system that make it possible for an unscrupulous guardian to take control of an elderly person’s life and bleed their resources dry. Fortunately, steps can be taken to avoid the guardianship system and the kind of nightmare the film portrays.

What Is A Guardian?

A guardian is someone appointed by a court to make decisions on behalf of an incapacitated individual (“ward”). The guardianship process usually starts when a family member or social worker notifies the court that someone can’t take care of themselves.

The court often appoints a family member as guardian. However, if the family can’t agree on a guardian or there is no family to act as guardian, the court may appoint a public guardian. Public guardians are supposedly neutral individuals who are hired to act in the ward’s best interest.

Guardianship Fraud In I Care A Lot

I Care a Lot follows one such public guardian who exploits the system to gain control of her wards’ estates. The guardian, Marla Grayson, typically petitions for an “emergency guardianship” without notifying the ward.

In the case that takes up most of the film, Marla appears on the doorstep of a very surprised Jennifer Peterson with a court order declaring Peterson incompetent (she is nothing of the sort) and forcing her to relocate to a long-term care facility. Marla has already arranged for Jennifer’s doctor to declare Jennifer incompetent, and Marla also has a deal with a long-term care provider to admit Jennifer to his facility. And because it is an emergency guardianship, Jennifer is not required to be notified to appear in court to defend herself.

Without Jennifer’s knowledge or consent, Marla takes control of her life and finances. After Jennifer is moved to the care facility, Marla begins the process of selling her house and belongings, taking a generous cut of the proceeds.

From there, the movie takes a lot of twists and turns that we won’t reveal here. However, the starting premise is unfortunately not Hollywood fantasy.

The Case Of April Parks

The film’s premise is in fact quite similar to a real-life case involving Nevada public guardian April Parks. As guardian for hundreds of wards, Ms. Parks, took over their lives, sold their belongings, and charged their estates hundreds of dollars an hour.

Over her 12 years as a public guardian, Ms. Parks built relationships with hospitals and medical providers to refer patients to her. She found doctors who were willing to declare her targets incompetent. Families often found out too late that their loved one was under guardianship and beyond their legal control.

How Pervasive Is Guardianship Abuse?

Ms. Parks is clearly at the far end of guardianship exploitation and has been sentenced to 16 to 40 years in prison, but there are other unscrupulous guardians still exploiting the system. Unfortunately, in many states, the lack of court oversight combined with poorly trained guardians leads to abuse. Courts often do not have the resources necessary to provide proper oversight, and only a small minority of states certify their professional guardians.

However, not all states are equally vulnerable to guardianship exploitation.

• New York’s guardianship system requires that an independent evaluator meet with the ward before an incapacitation hearing
• Arizona requires that its professional guardians be licensed through the state and that the ward have an attorney present during the incapacitation hearing, among other protections
• Florida’s governor signed a law in 2019 requiring guardians to report details of payments
• Nevada has enacted a number of reforms, including requiring that individuals subject to guardianship be represented by an attorney

In a rare display of bipartisanship, Congress passed a bill in 2017 that empowers federal officials to investigate and prosecute unscrupulous guardians and conservators appointed by state courts.

Guardianship Law And The Ugcopaa

While some states have begun passing reforms, there is more to be done. The Uniform Law Commission, which provides states with model legislation, has proposed the Uniform Guardianship, Conservatorship, and Other Protective Arrangement Act (UGCOPAA). The law would allow a court to order a protective arrangement rather than a full guardianship when appropriate, require that notice of the guardianship be sent to family, and prevent the guardian from barring family members from visiting the ward, among other things. So far only Washington and Maine have enacted the model law.

Regardless of your state’s laws, the best approach is to avoid the need for guardianship and conservatorship entirely by putting durable powers of attorney and health care proxies in place ahead of time when you can choose the person you would like to make decisions for you when necessary. Even if you’re not at risk of exploitation because your children or grandchildren would step in, the need for court intervention causes otherwise unnecessary expense and delay.

Britney Spears’s legal fight to wrest back control over her personal and financial affairs has flooded the issue of guardianship in Klieg lights. While a full guardianship may be necessary for many individuals who are incapable of managing their own affairs due to dementia or intellectual, developmental or mental health disabilities, the Spears case underlines the option of more limited alternatives.

Every adult is assumed to be capable of making his or her own decisions unless a court determines otherwise. If an adult becomes incapable of making responsible decisions, the court will appoint a substitute decision maker, usually called a “guardian” or a “conservator,” depending on the state.

Guardianship is a legal relationship between a competent adult (the “guardian”) and a person who because of incapacity is no longer able to take care of his or her own affairs (the “ward”). The guardian can be authorized to make legal, financial, and health care decisions for the ward. The National Center for State Courts says that about 1.3 million adults are living under guardianships or conservatorships with some $50 billion in assets.

The standard under which a person is deemed to require a guardian differs from state to state, and because guardianships are subject to state law, data on them is hard to collect and protections against abuse vary widely. Netflix’s popular movie, I Care a Lot, spotlighted some weaknesses in the guardianship system that make it possible for an unscrupulous guardian to take control of an elderly person’s life and bleed their resources dry.

The Spears Case: An Unusual Situation

Britney Spears has been under a court-ordered conservatorship that has controlled her career and finances since 2008. Her father, Jamie Spears, was appointed her temporary conservator when the pop singer was allegedly struggling with mental health issues and had been hospitalized, and a Los
Angeles court later made the conservatorship permanent.

On July 14, a Los Angeles judge approved the resignation of Spears’s courtappointed lawyer and granted her request to hire her own lawyer. The 39-yearold singer told the judge that she wants to end the long-running conservatorship that put her father in charge of her estimated $60 million
fortune and business affairs, and others in control of such personal decisions as whether she can marry and have a baby. “I’m here to get rid of my dad and charge him with conservatorship abuse,” she said.

Whatever the merits of this controversial case, what makes Spears’s situation so unusual is the fact that she does not appear to be incompetent, at least when it comes to her professional accomplishments. In the 13 years since the conservatorship was put in place, she has continued her career as a pop star, earning millions from a four-year concert residency act in Las Vegas and serving as a judge on the television reality show “The X Factor.”

Another anomaly is the fact that until now Spears was represented by a courtappointed attorney who, she argued, did not represent her wishes or interests. However, while the media has given wide coverage to Spears’s side of the dispute, we have heard almost nothing from the professionals handling her affairs, who are constrained from publicly disclosing confidential information.

It’s easy to see why conservatorship, which takes away a person’s right to make decisions about significant aspects of his own life, is considered among the most restrictive legal remedies in the American judicial system. For this reason, courts are legally required to seek alternatives that will safeguard the ward’s finances and wellbeing but with the fewest restrictions, in an effort to protect that person’s rights.

Protections Without Total Loss of Control

In the case of an elderly person who may no longer be able to handle some or all of her own affairs, there are various approaches that provide protection without stripping that person of control over all decisions, as in Spears’s case.

Many people in need of help can make responsible decisions in some areas of their lives but not others (such as making major financial decisions). Families might consider setting up what’s called a “limited guardianship.” Most states allow judges to appoint guardians with limited powers that are specifically tailored to the alleged incapacitated person’s needs. For example, a court can appoint a guardian to oversee a person’s housing and health care, but not to manage the person’s bathing, eating, and socialization. Conservators can be appointed to handle the financial affairs of someone who is not good with money, without having any power to manage health care decision making—the options are almost infinite.

Alternatives to Guardianship

Sometimes, guardianship isn’t the answer at all. If a person can execute estate planning documents, she can also sign a durable power of attorney and a health care proxy, which allows someone to assist her with decisions without court involvement. “Supported decision making” is a growing alternative to guardianship in which trusted advisors like family, friends or professionals assist in making decisions, although the individual retains the ultimate right to make their own decisions.

Trying an alternative to guardianship can be important for several reasons. First, it prevents a court from ruling that someone is “incapacitated,” which carries with it a stigma and can be hard to undo, as Britney Spears is finding. Second, it puts the person in the driver’s seat. Third, it is much less expensive and time-consuming.

Another option is a revocable or “living” trust that can be set up to hold an older person’s assets, with a relative, friend or financial institution serving as trustee. Alternatively, the older person can be a co-trustee of the trust with another individual who will take over the duties of trustee should the older
person become incapacitated.

Experts say that Britney Spears faces a long, difficult path if she seeks to terminate her conservatorship. She would need to file a formal petition, which would require presenting evidence in hearings and depositions. She could face objections at every stage from attorneys representing her father and others involved in her care. (Spears has indicated her unwillingness to submit to a mental evaluation or test in her effort to end the conservatorship.)

If you have questions about what type of guardianship may be right for your family member, or if you are currently under guardianship and are looking to gain control of your affairs, talk to your elder law attorney today.

For an article on what may lie ahead in the Britney Spears case, click here.

For an article by University of Virginia Family Law Professor Naomi Cahn on how guardianships can lead to abuse, click here.