Are Guardianships Vehicles of Abuse?

I recently watched a docuseries.  This particular show was about guardianships.  The theme of the docuseries is to expose the ways in which people in power or the-know steal from others.  The theme of this particular show was about how people serving in the role of guardians steal from their wards, the incapacitated individuals.

Throughout the series, the director played ominous background music and made it sound as if a great many wards don’t need a guardian and how many guardians steal from their wards.

I have been an elder law attorney for over twenty years now.  I have served in the role of guardian hundreds of times.  I have been appointed to represent potential wards in guardianship actions over a thousand times.  I have filed hundreds of guardianship actions on behalf of my clients.  Given my education and experience, I think it is fair to call me an expert when it comes to guardianship actions.

Given my self-proclaimed expertise, here is my take on guardianships and guardianship actions:  The vast majority of people for whom a guardianship action are filed clearly need a guardian.  Most potential wards are, without question, unable to manage their financial, health, and residential affairs.

Some of the potential wards are questionably in need of a guardian.  If you didn’t know better, and many people don’t, you would talk to the ward and think he/she is a bit off but basically with it.  For instance, in this show I watched, there were two guardianship stories that were presented.

One involved an eighty year old man who owned a business.  He was described as having a “common law wife.”  The wife appeared substantially younger than the ward.  The ward was clearly elderly whereas his common law wife was vibrant and very well put together.  The impetus for the guardianship action occurred when the ward attempted to buy a home for himself and his common law wife with a pile of cash.

Now, I don’t know if my assumptions are correct because the show was clearly slanted towards proving that all guardians are thieves and the ominous background music was playing very loudly so I may have missed a few details, but since I’ve seen situations such as this, my take is this.
The ward definitely was beginning to miss a step.  His well-coifed, much younger common law wife moved into his house.  She wanted her own house, so the ward took a pile of cash and was going to buy her a house.  Now, people don’t buy houses in cash, unless they are drug lords, so that triggered a red flag.  Adult protective services, a government agency responsible for investigating potential abuses committed against the elderly, investigated and thought the “wife” may have been financially exploiting the ward.  After a hearing the court thought so to and appointed a guardian for him.

Once a guardian is appointed in New Jersey, the guardian is responsible to account to the court and the interested parties, the ward’s family.  The surrogate’s office reviews the guardian’s accountings.  The surrogate’s office is staffed by a very capable accountant who reviews the accountings and the backup material—the bank statements.  Finally, there is an independent board of non-attorneys who review guardians and the actions of guardians.

Do I think that some guardians steal from their wards?  I do.  But in my experience, more incidents of theft occur when people appoint friends, family members, or professionals as their power of attorney agents or trustees of trusts they create and fund.  These type of arrangements have no oversight, so the opportunity for theft is far greater.

For this reason, I do not serve as clients’ power of attorney agents or trustees.  I like the idea of oversight.  It protects the client and me from abuse or the allegation of abuse.

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