CHAPTER SUMMARY • June 2019
Dari Pogach and Erica Wood, American Bar Association Commission on Law and Aging
Introduction
Courts name guardians to protect adults from abuse, neglect, or exploitation; however, in some
circumstances, guardians are the perpetrators of such actions. Guardians wield immense power over adults in
their care. More information is needed on the extent and consequences of abuse by professional and family/
non-professional guardians. Recent government and media reports have highlighted egregious cases in which
guardians have taken advantage of their positions. What can an advocate do when a guardian is a perpetrator of
abuse?
In this issue brief, the generic terms “guardian” or “guardianship” refer to guardians of the person as well as
guardians of the property, frequently called “conservators,” unless otherwise indicated. The term “abuse” refers to
abuse, neglect, or exploitation, unless otherwise indicated.
Case Examples1
EXAMPLE 1
Mr. G, injured at birth, receives monthly settlement and periodic lump sum payments, and has had
a guardian his entire adult life. The court ordered that all Mr. G’s money be placed into a trust and a
professional fiduciary appointed to handle the finances. During the 12 years of the trust, the professional
fiduciary made numerous interest-free “loans” to himself, to his friends, and to his speculative business
ventures. The fiduciary paid himself trustee and accounting fees, without accounting to the court. An
attorney appointed to represent Mr. G subpoenaed and combed through years of bank records to uncover
the fiduciary’s actions; appointed a special master to perform a forensic accounting; and brought a recovery
action against the fiduciary, obtaining a judgment of over $300,000. The fiduciary has since been charged
criminally.
EXAMPLE 2
Mr. S became comatose after a serious fall. His adopted daughter, appointed as temporary guardian,
withdrew $60,000 from his personal savings account, made approximately $20,000 in cash advances from
his credit accounts, and hired a locksmith to enter Mr. S’s home and remove valuable items. When Mr. S’s
biological daughter learned of the guardianship case, she informed the court that Mr. S was no longer in
a coma and guardianship was unnecessary because Mr. S had previously granted her powers of attorney.
Mr. S’s adopted daughter claimed the powers of attorney were the product of undue influence. The court
appointed an attorney for Mr. S who confirmed the biological daughter’s claims, and filed a petition to
remove the adopted daughter as guardian and recover the money she stole. The adopted daughter is
currently being investigated for criminal fraud.
1 Case examples from Legal Aid Center of Southern Nevada.
EXAMPLE 3
Ms. H, 87, has advanced Alzheimer’s. Her son is guardian, and related to the court his belief that her estate
had been plundered by her former guardians—her daughter and nephew. The court appointed an attorney
to represent Ms. H, who discovered that the nephew had stolen $100,000. Her daughter had coerced her
mother to sign over ownership of 40 acres of valuable land, had stolen an heirloom diamond necklace, and
had forced Ms. H to sign over ownership of shares of stock. The attorney filed a recovery action, demanding
the return of all of Ms. H’s stolen assets. The judge ordered that the daughter return the land and assets;
imposed double damages for the nephew’s bad acts; and awarded Ms. H $200,000.
EXAMPLE 4
Ms. W’s private professional guardian filed a petition to resign as guardian, and a legal aid attorney was
appointed to investigate the guardianship. Upon review of the accountings, it became clear that the
guardian had misappropriated funds. The attorney petitioned the court for an Order to Show Cause and
ultimately proved that the guardian had misappropriated funds and had breached her fiduciary duty. In
addition to obtaining an order disgorging all guardianship fees and misappropriated funds, the guardian
was sanctioned for two counts of civil contempt, one count for misappropriating funds and one count for
breaching her fiduciary duty. The guardian is currently incarcerated.
Key Lessons
1. Court appointment of a guardian may, but does not necessarily, safeguard an adult from abuse, and in
some cases the guardian may be the source of abuse.
2. Anyone working with older adults or adults with disabilities should be aware of signs of guardianship
abuse.
3. If you suspect abuse by a guardian, take action. Actions may include investigating, reporting, and
petitioning the court to intervene.
4. Courts can take a range of actions to investigate and address guardianship abuse.
Guardian as Safeguard Against—But Possible Source of—Abuse, Neglect, and
Exploitation
Fiduciary role
Guardianship is a court appointment of a person or entity to make personal and/or property decisions for
an adult whom the court finds unable to make decisions for themselves. Guardians are fiduciaries, which means
they have a high duty of trust, care, honesty, and confidentiality. They must avoid conflicts of interest and even
the appearance of a conflict. Guardians have a dual duty – to the individual in their care and to the court.
Removal of rights
Appointment of a guardian removes basic rights from the adult, and should be considered a last resort after
other less restrictive options have been considered and tried. Advocates should be alert to avoid unnecessary,
inappropriate, or overbroad guardianship appointments.
Statutes and standards
All states have statutes requiring guardians to submit accountings and personal status reports to court
annually or for another specified period, unless the court directs otherwise.2 For professional standards, see the
National Guardianship Association’s Standards of Practice.3 See also state standards for guardians and guardian
certification programs.4
Guardians as perpetrators
While many guardians are trustworthy fiduciaries, some are the perpetrators of abuse. They use their
authority to take advantage of an adult in their care. Abuse by guardians may be financial exploitation, physical
abuse, emotional or psychological abuse, and/or neglect. Guardians committing abuse may be family members
or other non-professionals, or professional individuals and agencies. Some states are implementing guardian
criminal background checks.5 There are no universal background checks or mechanisms for guardianship courts
to share results with each other or other relevant institutions.
Role of counsel: pre-appointment and post-appointment (for complaints & restoration)6
The appointment of counsel prior to appointment may allow the person alleged to need a guardian to voice
concerns over a potential guardian. Counsel may also identify concerns to share with the client and discuss
reporting these concerns to the court to avoid the appointment of a guardian with bad intentions. The role of
counsel post-appointment is equally important in giving the person the opportunity to speak freely and with
the guarantee of confidentiality. Counsel may learn of an issue and has the legal authority to report to the
court. Counsel may also use evidence of abuse when submitting a complaint to the court and/or arguing for
restoration.
PRACTICE TIP
Be alert to risk factors that could increase the chances of guardianship abuse:
• Guardianship appointment was contentious—family disputes and/or conflicts of interest are present.
• Individual has no local supports of family or friends.
• Individual has difficulty communicating basic needs.
• Guardian is out of state and has no regular connection with individual.
• Individual has a large estate, OR, little or no estate, garnering minimal attention.
• Individual has complex medical and mental health needs, and guardian is not equipped to address the
needs.
• Guardian is a private agency or professional with multiple cases in several jurisdictions.
• Court is overwhelmed with cases needing guardians, makes rushed appointments, and monitoring is
minimal.
2 American Bar Association Commission on Law and Aging & Hurme, Sally, Guardianship State Statutory Chart on “Monitoring
Following Guardianship Proceedings,” 2018, americanbar.org/content/dam/aba/administrative/law_aging/chartmonitoring.pdf
3 National Guardianship Association, Standards of Practice, guardianship.org/standards.
4 Hurme, Sally, Guardianship State Statutory Charts on “State Standards of Practice” (2016) and “State Guardian Certification
Programs (2018), americanbar.org/groups/law_aging/resources/guardianship_law_practice .
5 As a preventive measure, some states (approximately 20) require a background criminal and/or credit check on a prospective guardian.
The judge retains discretion as to the appointment. See Hurme, Sally, Guardianship State Statutory Chart on “Criminal and Credit
Background Checks,” 2018, americanbar.org/content/dam/aba/administrative/law_aging/chartfelonycreditcheck.pdf .
6 See the following state by state statutory comparisons on the American Bar Association website, americanbar.org/groups/law_aging/
resources/guardianship_law_practice : ABA Commission & Hurme, Sally – “Representation and Investigation in Guardianship
Proceedings,” 2018; ABA Commission, “State Statutes or Court Rules on Guardianship Complaint Process,” 2018.
• Guardian has history of criminal behavior, substance use, or alcohol problems.
• There is no bond between individual and guardian.
• Guardian has debts and/or financial pressures.
Data on the extent of guardian abuse
There is little information on the extent of guardianship abuse, but the anecdotal evidence continues to
grow:
• In 2018, the U. S. Senate Special Committee on Aging found that while data is lacking, “unscrupulous
guardians acting with little oversight have used guardianship proceedings to . . . obtain control of
vulnerable individuals and . . . to liquidate assets and savings for their own personal benefit.”7
• In 2016, the U.S. Government Accountability Office found that “the extent of elder abuse by guardians
nationally is unknown due to limited data,” but profiled eight cases in which guardians financially
exploited or neglected older adults subject to guardianship in the prior five years.8
• Media accounts of guardianship abuse have shown malfeasance and criminal conduct by guardians
in a growing number of states.9 In an unknown subset of cases, guardians are involved in fraudulent
activities.10
Consequences of guardian abuse
Victims of guardian abuse may lose their savings. They may lose their homes or be forced into an
institutional setting. Their health may be affected and they may experience depression. When guardian abuse is
by a family member, family relationships may be irreparably damaged.
Signs of Guardianship Abuse
Lawyers and others who work with older adults should be alert to signs of elder abuse. A NCLER resource
provides a detailed checklist of signs of physical or sexual abuse, emotional abuse, neglect, and financial
exploitation.11 The National Center on Elder Abuse lists seven major types of elder abuse and indicators of each
type.12
7 U.S. Senate Special Committee on Aging, Ensuring Trust: Strengthening State Efforts to Overhaul the Guardianship Process and Protect
Older Americans, November 2018, p. 5.
8 U.S. Government Accountability Office, Elder Abuse: The Extent of Abuse by Guardians is Unknown, but Some Measures Exist to
Help Protect Older Adults, GAO-17-33 (2016), gao.gov/assets/690/681088.pdf.
9 Aviv, Rachel, “How the Elderly Lose Their Rights,” The New Yorker, October 9, 2017, at newyorker.com/magazine/2017/10/09/
how-the-elderly-lose-their-rights ; John Oliver, “Last Week Tonight,” June 5, 2018, at youtube.com/watch?v=nG2pEffLEJo ; Susan
Garland, “Calls for Court Reform as Legal Guardians Abuse Older Adults,” New York Times, July 28, 2017, nytimes.com/2017/07/28/
business/calls-for-court-reform-as-legal-guardians-abuse-older-adults.html; National Center for State Courts et al, Background Brief
— Examples of Conservator Exploitation: An Overview, 2018, at eldersandcourts.org/~/media/Microsites/Files/cec/OVC%20Briefs/
OVC-Brief-1.ashx . Also see National Association to Stop Guardian Abuse, nasga-stopguardianabuse.blogspot.com/2019/01/thenegative-
effects-of-elderspeak.html .
10 See Aviv, Rachel, note 9 above.
11 Godfrey, David, “Signs of Abuse, Neglect, and Exploitation: The Checklist,” Chapter Summary, January 2019, ncler.acl.gov/
NCLER/media/NCLER/documents/Signs-of-Abuse-Chapter-Summary.pdf .
12 National Center on Elder Abuse, ncea.acl.gov/Suspect-Abuse/Abuse-Types.aspx. Also see Stiegel, Lori, Legal Issues Related to Elder
Abuse: A Desk Guide for Law Enforcement, americanbar.org/content/dam/aba/administrative/law_aging/ABAElderAbuseDeskGuide.
pdf
Building on the checklist of elder abuse signs, here are additional signs that are specific to abuse in the
context of guardianship:13
Checklist of Signs of Abuse by Guardians:
- Fails to file timely accountings and reports with court
- Fails to file receipts with accounting
- Makes multiple unexplained ATM transactions
- Has no automated record-keeping
- Attorneys representing guardian withdraw
- Fails to pay rent or nursing home/assisted living bills, putting the person at risk of eviction
- Guardian is the representative payee and fails to use benefits for person’s needs
- Fails to apply for public benefits for which individual may be eligible
- Makes large expenditures not appropriate to person’s setting
- Requests fees higher than normal and not well substantiated; guardian drains estate and then seeks to
resign - Makes sudden changes in the person’s residence, selling a home and/or moving the individual out of state
with no stated rationale - Hires friends, family, or business associates to provide services
- Isolates the person; fails to respond to requests from friends, family, or service providers14Responding to Guardianship Abuse
The existence of court supervision does not ensure that someone is safe from abuse by a guardian. However,
you may be able to prompt court intervention by informing the court of possible abuse and petitioning for court
action.Courts vary greatly in how they respond to complaints or allegations of abuse by guardians. Some welcome
such reports to enhance monitoring as additional “eyes and ears” in the community. A few states and some
courts have complaint procedures.15 Some courts may not be aware of the range of options available to them,
particularly if they are not probate courts. Many of the following options are applicable both to advocates and
the court.
13 The list draws on several resources including: Idaho Supreme Court, Differentiated Case Management Tool; R. Vanderheiden, “How
to Spot a Guardianship Going Bad,” 2002, which was posted on the Maricopa County Arizona Public Fiduciary website, and shown
in Karp, Naomi & Wood, Erica, Guarding the Guardians: Promising Practices for Court Monitoring, AARP Public Policy Institute,
2007, assets.aarp.org/rgcenter/il/2007_21_guardians.pdf.
14 A growing number of states have passed laws prohibiting guardians from isolating individuals or mandating that guardians support
individuals to continue relationships with friends and family. See Legislative Fact Sheet: Guardianship and the Right to Visitation,
Interaction, and Communication in Guardianship, American Bar Association Commission on Law and Aging, available at
americanbar.org/content/dam/aba/administrative/law_aging/2018-05-24-visitation-legislative-factsheet.authcheckdam.pdf .
15 For example, in Idaho, the court has a standardized form prompting review of the complaint and determination of any court
action. Idaho Supreme Court, “Guardian or Conservator Complaint Procedures,” pursuant to Id. Code title 15, Chapter 5. Also
see guardian grievance procedure in the Uniform Guardianship, Conservatorship and Other Protective Arrangements Act, Sec. 127,
uniformlaws.org/committees/community- home?CommunityKey=2eba8654-8871-4905-ad38-aabbd573911c .
»» Report to Adult Protective Services. All states have statutes that require the reporting of elder abuse or
abuse of vulnerable adults.19 As set out in the NCLER brief on Elder Abuse Reporting,20 lawyers and
other professionals need to assess their reporting obligations and ethical duties in determining whether
to report to APS. Factors to consider are whether the individual (in this case the individual subject to
guardianship) is covered by the statute, whether you are a mandated reporter under state law, whether
reporting would be in the person’s best interest, and what the person wants.
While there is no data, anecdotally we know that in practice some APS agencies don’t pursue cases if a
guardianship is in place. They may file for guardianship and close a case of suspected abuse when the court
appoints a guardian – or fail to open new cases when there is an existing guardianship order. Nonetheless, if it
seems appropriate, seek to file a report with APS against a guardian regardless of past practices.
Courts may also report to APS. At least one state has developed a memorandum of understanding between
adult protective services and the court to facilitate the sharing of information when the person is at risk of
abuse.21
Report to Law Enforcement. A guardian’s breach of fiduciary duty may violate local, state, or federal laws
relevant to: elder abuse, embezzlement, false instrument, financial exploitation, forgery, fraud (e.g., credit card,
tax, Medicaid), larceny, money laundering, neglect, theft.22 If guardian abuse violates federal law, report to the
Assistant U.S. Attorney serving as the Elder Justice Coordinator for the district.23
There is little information on how often judges refer matters for criminal prosecution. Judges may be
reluctant or may not be able to refer cases for several reasons:
1. Guardian abuse, particularly if committed by a family member, is all too often perceived by the court,
as well as by law enforcement officers and prosecutors, as a personal or civil legal matter, rather than as a
crime;
2. Many courts lack an institutional mechanism to refer a victim to a law enforcement agency or
prosecutor’s office; and
3. Judges may face ethical considerations that prevent them from referring a case to law enforcement.
Even if a judge refers victims to the appropriate local agency for prosecution or suggests that the victim or
concerned others file a complaint, these agencies may be reluctant to handle such complaints due to a lack of
institutional knowledge and resources.
Report to Professional Licensing Boards. A growing number of states require specified professional
guardians to be certified, licensed, or registered.24 If you identify guardian abuse, contact the state’s licensing/
certification board, which will investigate and may revoke the license or certification. These state boards often
require that a complaint be made first to the local court. The Center for Guardianship Certification (CGC) is a
national guardian certification program. It has a process for filing complaints, and may deny, suspend or revoke a
19 Mandatory Reporting Laws, Stetson Law (2016), stetson.edu/law/academics/elder/home/media/Mandatory-reporting-Statutes-forelder-
abuse-2016.pdf
20 Godfrey, David, “Elder Abuse: Mandatory and Permissive Reporting for Lawyers, National Center on Law & Elder Rights, April
2019, Ncler.acl.gov/getattachment/Legal-Training/Mandatory-Reporting-Ch-Summary.pdf.aspx
21 “Memorandum of Understanding between the Court Visitor Program of the Administrative Office of the Courts and Adult Protective
Services, Division of Aging and Adult Services, Utah Department of Human Services, regarding the use of APS reports in Court
Visitor reports,” 2018.
22 Stiegel, Lori, Legal Issues Related to Elder Abuse: A Desk Guide for Law Enforcement, American Bar Association Commission on Law
and Aging, pp. 32 (2014), americanbar.org/groups/law_aging/resources/elder_abuse/legal_issues_related_to_elder_abuse_guides
23 Elder Abuse Prevention and Prosecution Act, S. 178, 2017, Sec. 101.
24 Hurme, Sally, “State Guardianship Certification Chart,” ABA Commission on Law and Aging, americanbar.org/content/dam/aba/
administrative/law_aging/2017-chrt-st-guard-cert.pdf.
certification or impose other disciplinary action.25
If the guardian is an attorney, contact the state lawyer disciplinary committee.26
Report to Federal Agency. An unknown number of guardians and conservators also serve as Social Security
representative payees to receive and manage SSA benefits, or VA fiduciaries to receive and manage VA benefits,
for beneficiaries the agency determines are unable to manage their own benefits. If you suspect that a guardian/
conservator who is also a payee is misusing benefits, contact:
• The SSA Office of the Inspector General Fraud Hotline
• The VA Office of the Inspector General Hotline
While there is no direct line of communication between state courts and federal agencies such as the Social
Security Administration, a judge may be able to alert a local official or an investigatory body. For example, the
National Disability Rights Network (NDRN) is responsible for monitoring representative payee programs all
over the country.27
Actions Only the Court Can Take to Remedy Guardianship Abuse28
The court may not be aware of the available options to remedy and/or prevent further abuse. Consider
petitioning the court to carry out or order one or more of the following actions. You may need to provide the
court with the citations for its statutory authority, case examples, or other practical justification:
• Freeze assets/restrict accounts. Courts can freeze assets and suspend the guardian’s access, while
maintaining payment of the victim’s living expenses.
• Order repayment for lost assets. Courts can order repayment, but in some cases the guardian will have
already spent all the funds, and the only way to recover them is through a bond.
• Order repayment for lost property. Courts can void a deed or set aside a contract.
• Adjust bond/order repayment under bond.29 Without a judicial protocol for seeking reimbursement
from a bond company, judges may not know how to facilitate repayment.
• Order case notices to parties listed in petition. In some states, listed parties, often family members,
must receive notices of key changes in the individual’s condition or circumstances, or copies of the
guardian report and accountings. Order a specific protective action by guardian.
• Enforce a statutory right to communication and visitation. Abusive guardians may use tactics of
isolation. A growing number of states have passed legislation setting out the rights of individuals subject
to guardianship to interaction with others of their choosing, and limiting the powers of the guardian to
restrict communication and visitation.30
• Communicate with courts in other states. If guardian malfeasance involves more than one state, courts
25 Center for Guardianship Certification, guardianshipcert.org/make-a-complaint .
26 hirealawyer.findlaw.com/choosing-the-right-lawyer/researching-attorney-discipline.html .
27 ndrn.org
28 National Center for State Courts et. al, Background Brief – Court Actions Upon Detection of Exploitation, 2018, eldersandcourts.
org/~/media/Microsites/Files/cec/OVC%20Briefs/OVC-Brief-5.ashx.
29 National Probate Court Standards and many states require bonding of assets. Except in unusual circumstances, probate courts should
require for all conservators to post a surety bond in an amount equal to the liquid assets and annual income of the estate.” Standard
3.3.15.
30 Pogach, Dari, Legislative Fact Sheet: Guardianship and the Right to Visitation, Communication, and Interaction, American Bar
Association Commission on Law and Aging, 2018, americanbar.org/content/dam/aba/administrative/law_aging/2018-05-24-
visitation-legislative-factsheet.pdf.
should follow the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act,31 and
communicate with any relevant court in another state. Fine the guardian.
• Appoint a co-guardian.
• Remove the guardian. While this may seem like an obvious choice, courts may be hesitant to remove
guardians without an identified willing and able replacement. You may be able to make suggestions to
the court of another option.
• Terminate the guardianship. There may be new options, or changed circumstances that address the
reasons the guardian was appointed, and a successor guardian is no longer needed.
• Apply civil legal remedies for elder abuse. Many civil actions may apply to an abusive guardian,
depending on state law, but all have various challenges as remedies for elder abuse, and as used
specifically against guardians. Some states have a statutory action for breach of fiduciary duty. In
addition, determine if any of the following are appropriate and could help to prompt court action:
breach of contract, voiding documents due to fraud or undue influence, constructive trusts, conversion,
fraud, rescission, restitution, and in a few jurisdictions, a private right of action for elder abuse.32
Additional Resources
• National Center for State Courts, in partnership with the American Bar Association Commission
on Law and Aging, Virginia Tech Center for Gerontology, and Minnesota Judicial Branch: Financial
Exploitation by Conservators, A Series of Eight Background Briefs, 2018
• American Bar Association Commission on Law and Aging: Guardianships Statutory Charts
• Center for Elders and the Courts: National Center for State Courts
• Legal Aid Center of Southern Nevada Guardianship Advocacy Program: Representing the Elderly and
Adults with Disabilities Who Are Facing or Under Guardianship, 2018
• National Guardianship Association: Standards of Practice
• National Guardianship Network
• U.S. Senate Special Committee on Aging: Ensuring Trust: Strengthening State Efforts to Overhaul the
Guardianship Process and Protect Older Americans, 2018
Case consultation assistance is available for attorneys and professionals seeking more information to
help older adults. Contact NCLER at ConsultNCLER@acl.hhs.gov.
This Issue Brief was supported by a contract with the National Center on Law and Elder Rights, contract number
HHSP233201650076A, from the U.S. Administration on Community Living, Department of Health and Human Services,
Washington, D.C. 20201.
31 Uniform Law Commission, Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, 2007, uniformlaws.org/
committees/community-home?CommunityKey=0f25ccb8-43ce-4df5-a856-e6585698197a
32 Sabatino, Charles, “Legal Basics: Elder Financial Exploitation,” NCLER Webinar Issue Brief, January 2018, ncler.acl.gov/pdf/
Legal%20Basics-Elder_Financial_Exploitation_Chapter_Summary.pdf . The Brief is based in part on materials by Lori Stiegel,
American Bar Association Commission on Law and Aging.
Case consultation assistance is available for attorneys and professionals seeking more information to
help older adults. Contact NCLER at ConsultNCLER@acl.hhs.gov.
