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Protecting Elders from Guardianship Abuse

Issues Inherent in the Guardianship System

Elder law attorneys see firsthand the complexities and potential pitfalls of guardianship arrangements. The recent investigation into guardianship practices in Florida, as reported by the Washington Post, underscores the urgent need for vigilance and reform in this area. While guardianships are designed to protect the vulnerable, they can sometimes lead to significant abuses, including forced isolation and financial exploitation. This article aims to shed light on the complexities of the guardianship system, expose issues related to guardian-inflicted elder abuse and provide practical advice for avoiding guardianship by planning before becoming incapacitated.

What Is Guardianship?

Guardianship is a legal process where a court appoints an individual (the guardian) to make decisions for someone deemed unable to make decisions for themselves (the ward). This arrangement is often necessary for seniors who can no longer manage their affairs due to health issues like dementia or stroke. It’s estimated that more than one million Americans are in a guardianship, a number that will only grow as the U.S. population ages and elderly people no longer have family living nearby to provide the care and protections they need.

A Cautionary Guardianship Case

Douglas Hulse, a former pilot from Florida, was hospitalized due to a stroke. After his recovery period ended and his condition did not improve, Orlando Health South Seminole Hospital could not discharge him without having an assigned caretaker. Therefore, the hospital petitioned the court to assign him a guardian due to the inability to locate his family. His loss of control over his assets and personal decisions to a court-appointed guardian is a stark reminder of guardianship risks. His guardian, responsible for 19 other wards, made questionable decisions like selling his home without seeking to locate his family.

What Role Do Hospitals have in Guardianship Appointments?

Hospitals often play a significant role in initiating guardianship proceedings. Cases like Hulse’s in which the hospital petitions for a court-appointed guardian are becoming more common nationwide, especially when elderly patients have no known family or friends to care for them. While this process is meant to ensure the patient’s well-being, it can inadvertently lead to the appointment of guardians who may not act in the best interest of the ward or, worse, will exploit the senior ward through financial abuse or other ways.

Why Is the Adult Guardianship System Allowing Abuse and Exploitation of Wards?

The discrepancies in the guardianship appointment and training process further complicate this issue. There is often a lack of standardized procedures for appointing and monitoring guardians, leading to inconsistent practices and an increased risk of abuse. This situation calls for a more rigorous and standardized approach to guardianship appointments at the state level, ensuring that only qualified and ethical individuals are entrusted with such significant responsibilities.

How Do Guardianships Put Seniors at Risk of Abuse?

The Hulse case highlights several risks associated with guardianship:

  1. Loss of Personal Freedom and Fundamental Rights: Once under guardianship, individuals may lose basic rights, such as voting, consenting to medical treatment, managing their finances, or deciding where to live.
  2. Financial Exploitation: Guardians have significant control over the ward’s assets, allowing them to access financial accounts directly and conduct financial transactions without oversight. This access can lead to mismanagement or outright theft.
  3. Lack of Oversight: Guardianships often lack sufficient legal or administrative oversight, allowing unscrupulous guardians to take advantage of their wards. Because a judge appoints guardians, they often do not face punishment or legal recourse for abusive behavior.

How to Protect Yourself From Court-Ordered Guardianship

  1. Advance Planning: The best defense against guardianship abuse is advance planning. This includes setting up durable powers of attorney for health care and finances, which allow you to designate someone you trust to make decisions on your behalf if you become incapacitated.
  2. Regular Monitoring: If guardianship is unavoidable, family members should stay involved and monitor the guardian’s actions. Regularly reviewing financial statements and staying in close contact with the ward can help detect any irregularities.
  3. Choosing the Right Guardian: If a guardian is necessary, choose someone trustworthy and capable. This could be a family member or a professional with a good reputation and credentials.
  4. Legal Oversight: Courts should have robust systems to monitor guardianships. This includes regular reporting by guardians and audits of their financial management.
  5. Awareness and Education: Seniors and their families should be educated about the risks of guardianship and the importance of advance planning. Community programs and legal clinics can provide valuable information and resources.
  6. Advocacy and Reform: Advocacy for better laws and policies around guardianship is crucial. This includes pushing for reforms that increase transparency, accountability and oversight in the guardianship process.

Key Takeaways:

  • Guardianship can lead to significant abuses, including loss of autonomy and financial exploitation.
  • Hospitals often initiate guardianship proceedings for incapacitated patients without family, which can lead to inappropriate guardian appointments.
  • Advance planning, such as establishing durable powers of attorney, helps prevent guardianship abuses.
  • There is a need for increased legal oversight and reform in the guardianship system to protect the rights and well-being of the elderly.

Work with an experienced elder law or estate planning attorney to ensure that someone you love does not fall prey to abuse but has a legally documented estate plan to protect them and their financial well-being.

How is the VA Handling Aging Veterans?

The Department of Veterans Affairs and veterans organizations across the country are working to care for a new generation of older veterans who are apt to have greater expectations for longevity and independence than earlier generations, yet also may struggle with more complex medical conditions, reports Military Times’ recent article entitled, “America faces a tidal wave of aging military veterans.”

“We’re kind of compounding multiple variables, in the sense that not only are people living longer, but … many of them survived something that wasn’t survivable,” says Scotte Hartronft, the director of geriatrics and extended care at VA. “A lot of veterans have survived significant injuries over the last couple of conflicts that [they] wouldn’t have survived in previous wars.”

In California, the most populous state and home to the highest number of vets, the State Department of Veterans Affairs, known as CalVet, the state’s veterans department, is working to create a modern facility that centers the needs and dignity of older veterans. Like VA facilities across the country, people charged with caring for veterans must address the same question: How do we best care for those who have served on our behalf as they grow old?

Other states also have issues: between 2021 and 2041, the number of veterans older than 85 is expected to increase by 31%. That’s partially because the overall number of veterans nationwide is actually decreasing. Between 2000 and 2018, the number of veterans in the country declined by a third — the bulk of Americans who have served in the military served decades ago.

Vietnam and Gulf War-era veterans represent a different slice of the population than veterans who fought in World War II and Korea: the number of women veterans over 65 is expected to increase by 237% between 2021 and 2041. Racial diversity is also increasing, and the geographic distribution of veterans is shifting. As a result, veterans’ care must change. Women, for example, have a greater life expectancy than men do. Women veterans will generally need more support to continue to live independently as they age for longer — a fact compounded by the fact that women, who tend to be informal caregivers to friends and family, often have more difficulty than men finding their caregivers when needed.

In addition to higher rates of post-traumatic stress and other conditions affecting mental health, veterans are more likely to be exposed to risk factors, such as traumatic brain injuries or toxic exposure, for Alzheimer’s and other dementias. Vets also have a higher chance of being diagnosed with certain types of cancer, like lung and skin cancer. Roughly 50,000 new cancer cases among veterans are reported annually; that number is expected to rise as veterans age.

Every VA medical center will offer veteran-directed care within the next two years. This popular program provides qualified veterans with a stipend to hire local caregivers to assist them with daily living or even companionship. VA is expanding home-based primary care — which provides health care to veterans at home, many of whom are housebound — to 75 new sites and expanding its Medical Foster Care program. This lets some vets live in a private home with a caregiver rather than in a nursing home. They’re also piloting a program using predictive analytics to help determine which veterans are at the highest risk of nursing home care in the coming years to connect them with preventive services.

Reference: Military Times (June 2, 2023) “America faces a tidal wave of aging military veterans”

What Should I Know About Advocating for a Loved One with Parkinson’s Disease?

Unfortunately, recent studies have shown that three out of every four hospitalized Parkinson’s Disease patients didn’t get their regular home medications on time or had doses entirely skipped.

Proper medication management is the most critical part of a successful hospitalization for someone with Parkinson’s Disease.

Antiparkinsonian medications (levodopa or amantadine, for example) must be given correctly, at the right time and in the correct dose.

If regular home medications aren’t provided in the hospital, Parkinson’s Disease patients can develop mental disturbances, increased muscle rigidity, tremors and difficulty communicating. As a caretaker, you have a vital role in helping the transition from home to the hospital run smoothly.

Next Avenue’s recent article, “How to Advocate for Your Hospitalized Loved One with Parkinson’s Disease,” has some ways you can do this.

Make sure you have an up-to-date list of medications your loved one takes. The list should include the name, dose, when it was last taken and what pharmacy is used for prescriptions. Be prepared to give this to the hospital staff when requested.

You should also list drug or food allergies, including reactions. For example, did a particular drug cause severe irritability or a rash in the past?

It is important to remain with your loved one when they arrive at the hospital until the first dose of their regular medication is administered. Note that a first dose can usually be delayed by several hours if the nurse needs to input the medication list into the chart immediately or if the hospital pharmacy is delayed in verifying the orders. However, after the first dose, future quantities will likely be on schedule.

Cooperate with nursing staff to make sure that your loved one is comfortable. Be direct, yet kind, in asking when the patient might need personal hygiene supplies, a quieter environment, or on-time medication.

As a caretaker, your education and experience regarding Parkinson’s Disease are powerful tools.

Some things might fall through the cracks in a busy hospital– and you know the patient best. So don’t be afraid to speak up and express your needs as you advocate for your loved one.

Reference: Next Avenue (December 22, 2023) “How to Advocate for Your Hospitalized Loved One with Parkinson’s Disease”

Will I Be Able to Afford Nursing Home Care?

About 60% of older adults — or 24 million households — wouldn’t have the resources to pay for in-home long-term care, despite the fact that they would prefer to “age in place,” per a National Council on Aging report.

Fox News’ recent article entitled, “Most seniors in America can’t afford nursing homes or assisted living, study finds,” says that the researchers looked at 2018 data from the Health and Retirement Study, which was a joint effort by the National Institute on Aging and the Social Security Administration that surveyed some 20,000 U.S. adults about their net wealth.

When the researchers started examining the data some years ago, they were initially surprised to see that so many older adults were at severe risk of financial insecurity, Dr. Jane Tavares, a lead researcher at the LTSS Center at UMass Boston, told Fox News Digital.

“There is a common misconception that older adults are asset-rich, but we have found in our research that this is not generally true,” she said.

Dr. Tavares also noted, “We expect that there will probably be some worsening, once we examine data for the period covering the COVID pandemic.”

The national average cost for assisted living is $4,500 per month. However, it can vary significantly depending on the location and level of care needed.

“As the population continues to age and demand for these services grows, it is likely that the cost will continue to rise,” said Dr. Steven Norris, a senior health and care expert who is also the medical director at Transitions Care in Chicago, Illinois.

The widespread shortage of qualified caretakers means facilities must pay more to secure the right people.

“For decades, there has been a lack of awareness of how expensive assisted living really is.” “Additionally, recent increases in minimum wage requirements and changes in overtime payment legislation are increasing assisted living costs,” he said.

The cost could range from $3,000 in rural areas to $7,000 to $9,000 in urban locations.

“For decades, there has been a lack of awareness of how expensive assisted living really is,” Kim told Fox News Digital.

“Some people thought health insurance would cover long-term care costs, while other people optimistically believed that they would live a healthy life forever.”

Assisted living companies had to raise prices to keep up with their costs continually. However, retirees did not see the same growth in savings or investments. Middle-aged and older adults are also now facing a very different financial landscape than the generations before them did. More than the increases in household income and assets have also been needed to keep up with rising living costs, health care and inflation. Even when older adults have assets, they are often tied up in property and need to be more readily available to help them cover costs.

The changing retirement model has also added to gaps in savings. Past generations had private, employer-sponsored pensions that provided predictable payments. Many Americans now rely on 401(K) accounts, leaving individuals responsible for saving enough money to cover their retirement years.

“With all of this combined, few older adults have any significant savings in retirement accounts — and most can’t afford long-term care insurance that would help cover the expensive costs of assisted living or nursing home care,” she explained.

“With private long-term care insurance being unaffordable for most older adults, it is key to begin considering combined public and private initiatives that can put the cost of coverage within reach and make it more appealing to consumers,” she said.

Reference: Fox News (April 26, 2023) “Most seniors in America can’t afford nursing homes or assisted living, study finds”

How Can I Prevent a Fall?

Less than 60% have considered the home modifications necessary to age in place safely, says Yahoo Finance’s recent article entitled, “Prevent 300,000 Fall-Related Hospitalizations with Simple Aging in Place Home Modifications According to Lisa M. Cini.”

America’s leading aging expert compiled a list of simple home modifications to prevent falling and maintain balance while they stay home. Consider these simple home modifications to prevent falls:

  • Keep Item Within Reach. This includes your telephone and anything on a high shelf, or on another floor you may need. That way, you won’t have to stretch or balance on step ladders to reach things you need daily, since it can lead to falls.
  • Use Smart Flooring to prevent falls. For example, invest in anti-slip tiles for bathrooms and kitchens to avoid sliding on water or polished surfaces, and ensure that all rugs have anti-slip mats underneath to prevent slipping across the floor.
  • Consider Motion Activated Lighting. Install lighting with sensors to turn on when movement is detected, especially on stairs and in bathrooms.
  • Make the Garden Safe. Clear moss and old leaves from the paths to minimize the risk of slippery spaces. Avoid too many pots and ornaments as they are easy to trip over. Install lighting, so you can see your way along paths in the dark.
  • Get Rid of Clutter. Clearing clutter from steps and floors helps you to avoid slips and trips. Don’t leave things on the floor where they can cause a hazard.
  • Try Posture Exercises. Pilates and yoga will help you avoid falling by maintaining good balance, core strength and posture techniques. Some exercises are chair-based. However, most are gentle and set at a pace that the group can follow.
  • Install Handrails to Keep You Steady. Get handrails in all high-risk places, such as the shower or stairs, to prevent falls.
  • Make Your Bathroom Safe and Functional: Falls often occur in the bathroom. Today’s bathroom can include the Assisto bathtub, which features an easily accessible and ergonomic design that reduces the risk of injury and falls.
  • Voice-Controlled Assistance Devices: Play music, make calls, set music alarms and timers, ask questions and control smart home devices.

Reference: Yahoo Finance (May 8, 2023) “Prevent 300,000 Fall-Related Hospitalizations with Simple Aging in Place Home Modifications According to Lisa M. Cini”

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