In defense of guardians: responding to "i care a lot"

​One of the greatest frustrations for those working with elder abuse victims is standing idly by when abuse is occurring or imminent  and not being able to stop it. It’s not for lack of caring. Sometimes, even the most skilled and well-intentioned service providers don’t have the authority they need to do what needs doing. ​

​For example, when someone has highjacked a cognitively impaired older person’s assets using a contract, deed, or power of attorney and the elder isn’t able to revoke the agreements or recover their losses. For others to intervene, they need legal authority, and guardianship (called conservatorship in California) is often the only option. Guardianship is also often used when isolated, cognitively impaired people are languishing in their homes because nobody has authority to arrange care. Or, when family members are feuding over elders’ care or estates, while their health declines and assets dwindle.  ​

As someone who coordinated an elder abuse multidisciplinary team for over 16 years, I can attest to the many times our members breathed a collective sigh of relief when cases that had us stymied were referred to the probate court.

As someone who coordinated an elder abuse multidisciplinary team for over 16 years, I can attest to the many times our members breathed a collective sigh of relief when cases that had us stymied were referred to the probate court. We knew that they would be carefully investigated by professionals with expertise in cognitive impairment, accounting, elders’ needs, and community services. Court investigators could go beyond what protective service workers or law enforcement could do to secure evidence. Once conservatorship was granted, the court could call for accountings by alleged abusers and override powers of attorneys or other documents that had become licenses to steal. It could order feuding families into mediation.
 
Granted, our court was among the best. The judges and commissioners who heard cases were known for being smart and fair. Proposed wards were accorded due process. Investigators visited them in their homes to inform them of their rights, which included the right to attorneys, to contest the process, or even to jury trials. They could tell the court who they wanted as their conservators--under California law, courts are required to give priority to family members unless they deem them to be unsuitable. Investigators also advise courts on whether guardianships are actually needed or if less restrictive alternatives would do the trick. When questions about mental capacity arose, they made referrals for neuropsychological assessments. 

Admittedly, the system doesn’t always work the way it’s supposed to. Cognitively impaired individuals, especially wealthy ones, are tempting targets, and abuses are not uncommon. But it pains me when friends who have seen I Care a Lot, the 2020 Netflix release that depicts a diabolical plot by a private guardian and her accomplices to take control over elders’ lives and fortunes, ask “is it really like that?” Or when I hear calls for tearing down the system in toto. I am a vocal advocate for guardianship reform, but when, as is the case in the TV parable, the problem is clueless judges or corrupt  guardians, doctors, and nursing homes, shouldn’t we start by holding bad actors accountable and educate those who hold others’ freedom in their hands? Having seen the system at its best and worst, I’d start by asking what good programs are doing right.
 
For the record, prior to the rise of private professional guardians in California, “unbefriended” adults (those who met guardianship criteria) usually ended up with public guardians (PGs). As the only game in town, PGs served the affluent and non-affluent alike. Because courts allow guardians (both public and private) to charge fees from the estates they manage based on a percentage of the assets, they generated income from some, which helped underwrite services for others.  
 
Although the system worked relatively well, it placed public guardians in the position of offering tiered services. Clients who could afford expensive assisted living facilities and generous personal care received them, while those who lacked assets received a level of care commensurate with public resources. This was as it should be--the law demands that wards’ assets be used for their care. But the two-tiered system placed PGs in the position of treating clients differentially. It wasn’t a good look.
 
The court responded by encouraging known, trusted private case managers to become conservators to take the load off the public system and accommodate a growing new market. It helped develop training programs for professional conservators, oversaw their fees, and held them to a higher standard of care than families. Members of the new field championed accountability measures, forming a professional association and proposing certification and training standards. Clearly, they knew it was in their interest to keep the Marla Grays (the culprit in I Care a Lot) out of the field.

Guardianship is a blunt force instrument that is often applied when surgical approaches are better suited to cognitively impaired elders’ needs.

There’s a flip side to the guardianship problem, which isn’t the stuff of TV thrillers. As the field of private professional guardians grew, PGs lost a source of revenue that was never replaced. In Calfornia, PGs are even restricted from charging  the nominal fees that the federal government allows for managing public benefits. Many PGs today are woefully underfunded and forced to turn away those in need,  leaving a critical gap in the safety net for America’s vulnerable. Also lacking are adequate funds for court investigators, “elder courts” (a model designed to address elders’ special needs), and effective mechanisms for holding professionals at all levels of the process accountable.

​Perhaps the most critical gap is alternatives. Guardianship is a blunt force instrument that is often applied when surgical approaches are better suited to cognitively impaired elders’ needs. In some abuse cases, for example, limited authority may be all that’s necessary to prevent an elder’s bank account from being pillaged, evict an abusive family member from a victim’s home, arrange for new housing or services, or to serve as a “responsible party,” without which nursing homes won’t accept residents. What we need is a continuum of decision-making options to address the continuum of needs. 
 
It is surprising and ironic that while the thought of losing freedom and independence strikes terror into the hearts of everyday Americans, so little attention has been paid to finding ways to preserve autonomy in the face of cognitive decline. ​

Lisa Nerenberg

Lisa Nerenberg is the Executive Director of the California Elder Justice Coalition and author of Elder Justice, Ageism, and Elder Abuse (Springer, 2019).