Like many, we at NCALL recently watched Netflix’s “I Care A Lot,” a thriller whose antagonist uses the guardianship system to exploit older adults and enrich herself. While we will leave movie reviewing to the experts, we can offer some insight and resources into the world of guardianships, and how they can both protect and endanger older adults.
Guardianship is a legal process by which someone – a guardian – is given the authority to make decisions on behalf of another person – a ward – due to the ward’s infancy, incapacity, or disability. The guardian is required to act in the ward’s best interest. Among older adults, guardianship can be appropriate when an individual no longer has the capacity to make or communicate responsible decisions due to mental illness, physical illness or disability, dementia, or other causes. Once appointed by a court (and guardianships can only be established by court order), the guardian possesses the same powers, rights, and duties as a parent to a child – they can determine where the ward will live, what personal property they may own, where and how they will receive medical treatment, and how their finances are managed.
In the context of elder abuse, a well-intentioned guardian can protect an incapacitated victim from future harm and can pursue abuser accountability on the victim’s behalf. However, it can not be stressed strongly enough that establishing legal incapacity and placing an individual under guardianship is a serious deprivation of autonomy that can be difficult to reverse. It grants a huge amount of power to the guardian, which, in the wrong hands, can be a means to exert power and control. While safety measures – such as annual reviews by the court – exist, they can be hard to monitor and enforce.
While “I Care A Lot” is not based on a true story, it is reflective of the fact that the guardianship system can be manipulated and used to exploit and abuse older adults. Fortunately, many states are taking steps to review and update their guardianship laws, mostly with an eye to safeguarding rights; detecting, addressing, and preventing abuse; and preserving autonomy where possible. We encourage you to review your state’s guardianship statutes and to learn more about how guardianship can be used to harm, not protect, older adults.
For more about guardianships, please watch this video featuring the Confidentiality Institute’s Alicia Aiken. The American Bar Association Commission on Law and Aging maintains an excellent page of resources on guardianship and supported decision-making. Last, the National Center on Law and Elder Rights has some excellent resources on guardianship and elder abuse — including issue briefs, checklists, and recorded webcasts — that are part of their Elder Justice Toolkit.
Written by Ann E. Laatsch, JD, Justice System Coordinator, National Clearinghouse on Abuse in Later Life