How to Protect Yourself (and Others) From Forced Guardianship
Aging can be bittersweet. On the one hand, you (hopefully) reap the rewards of a lifetime of work and look forward to a comfortable retirement . On the other hand, this transition often comes with its own financial, medical, and psychological challenges, especially if you have few close relatives.
One thing you probably aren’t worried about is that you will be declared incompetent and a complete stranger will come to your home to force you into a care facility, then seize your property and assets and start paying himself handsomely for something to take care of you , whether you want (or need) it or not. But it happens—it’s called involuntary conservatorship, and it’s estimated that between 1 million and 3 million older adults are languishing in it today.
In fact, it is very easy for a professional caregiver to declare you unable to run your own affairs and take control of every aspect of your life—where you live, what doctors you see, and how often you interact with friends and family. Here’s what you need to know.
What is involuntary guardianship?
State laws vary , but the process is generally similar. The concept of adult guardianship falls under the concept of the powers of government parens patriae , giving the state the power to act as a “parent” to those who are unable to care for themselves. There is nothing wrong with this, and it is often necessary for people who are truly unable to cope with their lives.
This power allows someone to ask a court to have someone declared incompetent if they pose a danger to themselves because they cannot manage their medications, finances, or other aspects of their life. Under the current system, a medical professional is usually required to provide a written statement to this effect. If the court agrees that the person needs supervision, a professional guardian is appointed and is given full control over the competent person’s life (including his money, health care decisions, where he lives and who he can contact). The guardian bills the person’s assets for their time and can—and usually does—sell their assets to pay for their care (including their own compensation).
While this can be a godsend in some cases (for example, if an elderly person who is no longer able to care for themselves has no relatives to care for them), the current system is ripe for abuse due to several factors:
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Simplicity. It’s ridiculously easy to label someone as incompetent. The need for a health professional statement simply means that any doctor, nurse or therapist you interact with can assess your competency, and it has been documented that many professional caregivers maintain “whisper networks” among health care professionals who are willing to provide these statements – even if they only met you once. And many hearings to grant these motions are held only at the last minute , as judges or judge-appointed supervisors rush through these cases, accepting the statements of professional guardians as fact without any resistance.
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Secrecy. The proceeding to have you declared incompetent is often an emergency ex parte petition , which means you do not need to be notified and your presence is not required. In other words, you could be declared incompetent and have your life taken without warning and without being able to speak for yourself.
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Lack of supervision. In most parts of the country, becoming a professional caregiver is extremely easy—in New York City, for example, you must take a one-day course to become certified , and they don’t even require a background check.
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Durability. Once under guardianship, it is almost impossible to leave it. Even if your family supports your cause, most people will never go free after being declared incompetent. Court records are usually secret and there is no government agency that tracks guardianships, so even getting information about a loved one under guardianship can be a challenge.
These are just some of the reasons why up to two million people are currently under involuntary guardianship in this country, with their professional guardians overseeing some $300 billion in seized assets. If you are an older person who has any assets at all, you may become a target.
How to protect yourself from forced guardianship
Protecting yourself or a loved one from the possibility of involuntary guardianship can be quite simple, depending on where you are in the process.
Before there’s anything to worry about
When everything is in order, the possibility of forced custody seems unlikely, but that’s when you should prepare.
Start by consulting with a probate and probate attorney to appoint a health care proxy . This person will have the legal authority to make health care decisions for you if you are incapacitated or found incompetent to make those decisions for yourself. Choosing someone you trust will save you from appointing a professional who may or may not have your best interests in mind. Next, create a durable power of attorney , appointing someone to manage your finances and other aspects of your life.
These two documents will make it very difficult for a guardian to barge in and force you or your loved one to become the guardian, and will make it much easier to challenge them if that somehow happens .
During the process
If you or your loved one is visited by a professional guardian and removed from your home, at some point there will be a hearing where a judge or a judge-appointed supervisor will decide whether the guardianship should be made permanent. You can challenge the guardianship at this hearing, but it is often very difficult to do so because these hearings are very short and the person under the guardianship usually does not have an attorney to assist them. Even if family members are present in court and say they want to take responsibility and are capable of doing so, the judge or manager may not pay attention to this .
If this has already happened
If you or someone you love is in involuntary custody, getting them out can be very, very difficult, but there are some resources available to you . You can contact your local adult protective services agency to report caregiver abuse, or contact your local safety and security system if you or your loved one is disabled (but still able to care for themselves).
You should also contact local law enforcement. Although guardianship is legal and is processed through the court system, abuse of this system is not legal. In 2018, for example, April Parks was sentenced to 40 years in prison for illegally coercing people into custody and profiting from their property.
Most likely, you will never have to deal with an unscrupulous guardian and forced guardianship. But ensuring this never happens to you requires just a little planning.