Guardianship Abuse: Bad Apples or Tip of the Iceberg?

SPEAKER 1: Welcome to Justice Today, the official podcast of the Department of Justice's Office of Justice Programs, where we shine a light on cutting-edge research and practices and offer an in-depth look at what we're doing to meet the biggest public safety challenges of our time. Join us as we explore how funded science and technology help us achieve strong communities.

AMELIA VORPAHL: The issues of guardianship and conservatorship gained worldwide attention in recent years, in large part due to the “Free Britney” movement that took off in 2020, the goal of which was to end the conservatorship of pop star Britney Spears who had been under this conservatorship for more than 10 years. But often, after high-profile cases like these fade away, the issue tends to lose attention as well. What does the typical guardianship case look like in the United States? How prevalent is abuse within this system and how do we prevent it? In 2021, NIJ funded a comprehensive scan of guardianship abuse and fraud in the United States to look at this exact issue. What did we find? That's what we'll be diving into during today's episode.

My name is Amelia Vorpahl, and I'm joined today by two of the authors of this report, Dr. Pam Teaster, professor and Director of the Center for Gerontology at Virginia Tech, and Erica Wood, former Assistant Director of the American Bar Association's Commission on Law and Aging and continuing advocate, to talk about what we know and what we don't know about guardianship abuse in the United States. 

To start out, I think it would be helpful, Erica, if you could give us a basic definition of what guardianship or conservatorship actually is. And is there a difference between the two? Because you hear them used interchangeably a lot.

ERICA WOOD: Well, thanks so much, Amelia, and thanks for highlighting the study that we did for DOJ. So, what is guardianship? Well, guardianship is actually an ancient legal device for protection. It's for the protection of individuals who are said to be not able to take care of themselves or their property. So, the court steps in and appoints a guardian to make decisions for, and take care of, and manage the affairs of an individual who is sometimes said to be an incapacitated person. So, the guardian. Who is the guardian? Guardian could be an--often is a family member, guardian could be a friend, guardian could be an agency, a professional agency either for profit or nonprofit. The guardian could be a public guardianship agency. But whoever the guardian is, the guardian is a fiduciary. And that means that the guardian must abide by the society's very highest standards of care, accountability, honesty, and trust. And the guardian must be accountable to court and to the person that they're--that they're caring for. 

So, guardianship, being protective in nature as it is, can be a real lifesaver. And especially in crisis situations when the guardian can step in, and for example, make a needed health care decision. But at the same time, the guardian--by virtue of the guardian, assuming the decision-making authority for that individual, that transfer of authority removes basic fundamental rights. And because those rights are transferred to the guardian. So, think of rights that we take for granted every day, the right to vote, the right to marry, the right to manage our own property, buy and sell real estate, make contracts, all kinds of things, is often – not always – but often removed in a guardianship. And so, for that reason, each state has a guardianship statute an--and each state statute are in most--almost all of the state statutes, guardianship is said to be a last resort. It's a drastic intervention after less restrictive options, such as a financial power of attorney or a health care advanced directive, are explored. So those may--those kinds of mechanisms may be able to prevent the need for a guardianship.

Now, Amelia, you mentioned terminology, and I'm glad you did. And I want to say a word about that before we go on because guardianship is--the law is at the state level, so each state has its own guardianship terms. Now, in many states and in a model law, a guardian is somebody who makes personal and health care decisions whereas a conservator is someone who makes money and property, that is, financial decisions. But states are different. For example, if you were listening about the Britney Spears controversy, you heard them talk about conservatorship because they used the terms conservator of the property and conservator of the person. So, in this podcast, we're going to use the term guardianship to mean both a court-appointed surrogate, who makes health care and personal decisions, as well as financial and property decisions. So, hope that's clear.

AMELIA VORPAHL: That was so helpful, going over just kind of the basic terminology. And also, going over what guardianship is intended to be, and like you said, it is intended to be a protective mechanism, which I think, for me and maybe for other people who aren't familiar with it, is interesting because when we hear about it in the news, we mainly are hearing about it when there are negative or abusive cases going on. Which may lead people to question, you know: what is the point of this system? So, like I mentioned earlier, you had worked on this large, comprehensive report for NIJ on guardianship abuse in the United States. Could you give us a little bit of background on how that report developed and why you were asked to look at the issue?

ERICA WOOD: Sure. So, while we know that most guardians are dedicated and caring and, you know, guardianship practice really varies from the heroic, to the sufficient, to the deficient, to the abusive. And most guardians are dedicated and caring, but some unknown number do take advantage of their position to exploit and abuse the very individual that the court has appointed them to protect, thereby breaching their fiduciary duty. So, guardianship can both be a safeguard against abuse, neglect, and exploitation, as well as a source of abuse. 

So, in the overall sense, the National Institute of Justice was responding to the national interest over time in guardianship fraud and abuse, as shown in the media over the past several decades. Everybody's seen the headlines. And as you said, Amelia, the interest tends to go up and down but, you know, along comes another headline, so the interest is sustained over time. And there have been no less than five government accountability studies and many, many congressional hearings over the years.

So, you must say, "Well, wait a minute. Guardianship is a state issue, so why is the federal government so interested and why is--why would--is the Department of Justice involved?" Well, so even though guardianship laws and practice are at the state level, the federal government clearly has an interest since constitutional rights, basic rights are at stake, and guardianship is, after all, a matter of justice. So, it's right that the Department of Justice be involved.

But specifically, more immediately, the study was sparked by a 2021 letter from Senator Bob Casey and Senator Elizabeth Warren to Attorney General Garland wanting to know about guardianship abuse and fraud. And they asked the department, you know, what does the Department of Justice know about guardianship abuse and fraud? What do the states know? What kinds of data is available? What is the scope and prevalence of guardianship abuse and fraud, and what can a federal government do about it? So, it was in response to that letter that NIJ asked us to conduct an environmental scan of guardianship abuse and fraud with an emphasis on data issues since, if you think about it, court monitoring of guardians is really strongly dependent on good data and tracking.

So, the scan--in the scan, we did four things. We did an extensive, exhaustive literature review over the past four decades dating back to the 1980s. I doubt if many people remember anymore too much, but in 1987, the Associated Press came out with a very strong and well-known and very large story called “Guardianship of the Elderly: An Ailing System,” and that started the modern guardianship reform movement. So, we did the extensive literature review, we did compelling and very informative interviews and a survey with a whole number of state court administrative officials. Because if you think about it, the State Court Administrator's Office is where that information will lodge, if anybody knows about data on abuse and fraud, it's the court administrative office.

And then we looked at these findings in light of the legal, and the policy, and the practice contexts and made some recommendations. And so, we hope those recommendations, which we'll talk about in a minute, are a real taking off point for federal action, as well as state action.

AMELIA VORPAHL: And did this scan look at every single state or every single state that you were able to get data from? I guess my question is, have there ever been a report of this kind done before on guardianship specifically?

ERICA WOOD: There are a number of reports on guardianship or on various aspects of guardianship, but for the most part, they're not empirical and based in data. And so, while we did not do interviews in every state, we did interviews in a great number of states with differing systems. And so, we figured that we're getting as much information is--as is available, and the whole point, really, of the scan is to show that we need more data. We just don't have the data that they--that is needed to answer your most basic questions.

AMELIA VORPAHL: Thanks, Erica. Pam, could you give us a sense of what the scan that Erica was talking about, found out about the state of guardianship in the United States or what you weren't able to find out, which may be the better question.

PAM TEASTER: Thanks, Amelia. Both are good questions, actually, and both have some interesting answers. So, I think one thing to say about the system is that the data collection that is gathered is for different purposes, right? The courts want to collect information about court processes, like timing of reports, maybe completeness of reports, but mostly it's about: did things get done on time? And courts are specific about when things need to be provided by guardians, when things need to be set up, some information. But therein lies sort of the rub with all that. So, while there are systems, there are problems with them because process is one thing, but the people that whom guardianship is instituted is just quite different, hence we don't know certain things we wish we did.

So, Erica mentioned different states and different terminologies. Well, add on to that, different data elements that they collect. And so, if you add the terminologies, the elements, the way they do things, each state, each jurisdiction, even down to locality, can be quite different in that way. And so, we saw a patchwork system, really, and it will look like it doesn't have transparency across the country. It does probably for the jurisdiction. It's very clear, but not when you try to put that together in a broad brush landscape. Also, for years, we have said that states cannot tell you how many people are under guardianship. And good news is, a few can. And maybe some examples we think are perhaps Oregon and Minnesota a lot because there have been a lot of zealous advocates who have tried to work on that. But still, the majority couldn't tell you that. 

And so why is that? Again, it's because of the system and the purposes that this data collection systems are instituted. So, while I, for example, as a researcher, would love to know the ages of people who get guardianships, maybe the sex of people who get guardianships, that's not necessarily what the courts are interested in. So, the laws make it complex. The state technology makes it difficult because whatever was instituted is not necessarily what we would be interested in. And so, it makes it more complex to try to understand guardianship in the United States. The good news is though, we think it's getting better, but we do know that there needs to be a lot of uniformity in the way that things are collected. 

Erica will talk about this some more, too, about the information that we gathered. But a term now that we ought to introduce is trapped in the petition or trapped in PDF files. So, when the courts are scanning in information, they're not putting it in in a spreadsheet like we might do for research purposes. They are rather scanning--did you--did you submit the so and so? There it is. And it's scanned in for them. So, the technology is coming along, the interest is coming along. As Erica said, it has hills and valleys about who is interested in that, but we are learning more and more because one of the things that we're trying to understand are the people who are being served.

AMELIA VORPAHL: Wow. So, really, even though you were pulling all this data and all this information, we really just cannot say there are these many people under guardianship in the U.S., or even in a state, or a city. Like, that is just really hard to find?

PAM TEASTER: Not easily. That's correct. Unfortunately, that's correct. And we just know that you can probably know, right, today, if you ordered something on some of the outlets like Amazon, you would know it coming down the street.

AMELIA VORPAHL: That is pretty shocking. And I can't imagine the--just the amount of data and research that you had to comb through to even find out that we can't find this data. So, Erica, I'll go back to you. Pam kind of went over what the scan found about the guardianship system itself, the lack of data, the lack of transparency. But I know, specifically, you were trying to look at the prevalence of abuse and fraud within that system. Could you fill us in on what you found in that sense? And I guess what does abuse really mean within the context of the guardianship system.

ERICA WOOD: Sure, Amelia. So as Pam has described, it's a steep climb to get information on guardianship. But it's a much steeper climb to get information on guardianship fraud and abuse. And so, there are a couple of things that are important to keep in mind to explain that. The first is that guardianship is really fairly unique, as far as civil cases go, because think about it: in most civil cases, once the adjudication is over, the case is over, right? Unless there's an appeal, we're done. But in guardianship, we know that the case is just beginning and might go on for months, or years, or decades, and usually for the rest of that person's life. So, that's a lot of time over which courts need to conduct oversight and supervision over the guardian. And courts are really not set up for that kind of ongoing case that extends over such a large amount of time. 

Secondly, as you said, Amelia, it's hard to define abuse. So, what kind of abuse are we talking about? Is it abuse as adult protective services might define abuse, insofar as abuse, neglect, and exploitation that harms an individual? Is that the kind of abuse we mean? Or do we mean abuse as in criminal law, law enforcement definition? Do we mean a breach of the guardian's sacred fiduciary duty to the individual? Is that what we mean? Or do we mean noncompliance with the state law or the court rules? And some states also have certification requirements for guardians. Not too many just yet, but some do. And so, do we mean that this is not conduct that meets the requirements of certification? Or do we mean a more systemic type of abuse, as in overbroad and unnecessary guardianship orders, where there's actually no follow-up as far as monitoring and no examination of less restrictive options that might have prevented that guardianship? So those are all various kinds of abuse. 

But if you step back, and look at it, and try to talk about the scope and prevalence of guardianship abuse, what we did is we looked at how courts might actually get information on abuse. That's in those files that Pam described. Well, we found four ways. One way, certainly, is that in every state, guardians must submit reports and accountings, usually annually. But think about it. The guardian themselves is writing that report, and it might not be entirely accurate or complete, it might not be timely submitted, it might not be submitted at all. It might not be thoroughly reviewed by the court for many, many reasons. And then there's a question of whether the court will respond and how the court will respond to that report. 

There's also the system of adult protective services, and of course adult protective services receives reports of possible abuse, neglect, and exploitation. So, if they encounter abuse or possible suspected abuse by a guardian, they could report it to the court, but oftentimes, and we don't know how often, they don't. Because they think, "Well, the guardian is already under the supervision of the court," so there's no action called for. So, it's kind of a silos gap in communication. Now, some states, and not too many, but more and more and also the model law that I mentioned, do have guardianship complaint systems, and that helps but still that doesn't help in the vast majority of the states that don't have those and also the court may not be tracking. They may be zooming in on the action for those specific complaints, but they don't track the patterns in those complaints.

And then a few states have what's called court visitor programs, where the court sends someone out to be the eyes and ears of the court and bring back information and that's a wonderful system but not available in every state. So, no matter how the court learns about abuse generally, what they're looking for and what they find, as Pam talked about, is abuse in an individual case and then they have to decide how to respond or whether to respond. But that's not necessarily reflected in the database in the case management system as a whole, such that the information can be aggravated--aggravated is right. It's very aggravating. But what I meant to say is aggregated. Good slip of the tongue there. Because it is very frustrating to think that these examples of guardianship abuse are very real and very damaging, but they are indeed trapped in the files. And for all of those reasons, not a single state told us that they could give us a number of cases in--of guardianship abuse. Guardianship, maybe a few states. Guardianship abuse, no. 

So, we need to substantially develop our technology, our support staff to operationalize the technology and, you know--and today, like the National Center for State Courts are starting to make good inroads on that. Also, there's a need for demographic information about guardianship abuse, that is: who is primarily affected by guardianship abuse, what sorts of individuals, what sorts of populations, and what sorts of guardians are primarily committing that kind of abuse. And particularly to what extent is guardianship affecting, marginalized populations, such as populations marginalized by race, by ethnicity, by sexual orientation, by poverty. So that's a lot to think about.

AMELIA VORPAHL: That's a really great point. And, Pam, I'm wondering if you could maybe expand on that a little bit in terms of the demographics, and not knowing the demographics, and what that could mean for bias within the system.

PAM TEASTER: It has everything to do to inform perhaps the biases. I think when we learned about what populations are--how they're treated and what kind of services they get. We learn a little bit more about that including location, for example, where people are, you know, are people, for example, put in facilities more often or certain people put in facilities more often than others? In some ways, wouldn't that be dreadful to find out and yet isn't it dreadful that we don't know, because we can't try to fix the system until we know exactly what's going on with it. You know, who becomes the guardian generally? We know it's family members. We don't even know whether it's adult, children. We don't know whether it's spouses, how many, grandchildren. We really don't know any of those things. We don't know about the relationship of folks. It's in the court document generally in some way, sort of. But aggregated, we have no earthly idea about that. So, we can't begin to fix a problem if we don't know the specifics of it.

AMELIA VORPAHL: Right. And it seems like, based on what you guys are saying about the report, from a person that's unfamiliar with it, I would have assumed there would just be a singular system in a state or a county that you're in the guardianship system, and you're being tracked, and everything's being written down, and it seems that there's a lot of potential--your--people are just being siloed into different areas and a lot is just slipping through the cracks.

ERICA WOOD: Well, Amelia, one additional complication that we haven't mentioned is the fact that some states have what they call unified courts, and the others are less unified. So, in a unified--a state with a unified court, the state court will have more control over the local courts. And there will be more uniformity within the state. Maybe not total uniformity but more--but in a state with a non-unified court system, each locality will have their own rules and procedures and data systems and technology that might or might not be consistent with others in the state or with state level procedures. And so that's a huge complication. 

The other thing is that guardianship is really part of a larger segment of law called probate law and there are about 14 states that have specialized probate courts where judges can develop some degree of expertise. But in most of the other states, guardianship is heard in general jurisdiction courts along with, you know, criminal law and traffic law and, you know, murder cases and all kinds of other things where judges don't develop that expertise, not to mention the turnover in the judicial system.

AMELIA VORPAHL: Wow. Well, thank you for going over all of that. Like I said, I imagine while doing this research, you were pulling a lot of data, sifting through a lot of information, and a lot of different cases. Pam, were there any that particularly stood out to you as egregious or just surprising, the things that you found while you were looking at the scan?

PAM TEASTER: Of course, there were some gob smacking things but most of them are potentially somewhat outrageous or somewhat disappointing. So, we have kept between Erica and other authors on the paper, like Sally Hurme, Carlisle, we've kept records for years on different kinds of cases that occur. And the pattern is: there's no pattern really at this point because we don't have enough data to show that. But there were sort of outrageous things, but you could understand why, now that you know about the tracking systems, or the lack thereof, or the under-resourced tracking systems that exist. One would be not knowing if somebody had died or not. If a report is supposed to be annual and somebody doesn't do that, or they copy the report over, that might not be discovered for some time. And in fact, that was actually a case that I encountered when I was serving as a guardian that just lagged until that was discovered for particular reasons.

And then, what--you know, not knowing: how many women, how many men, what their ages are, what their mental health conditions are, what their physical health conditions are, where their placement is, not knowing all of that begins to help us not understand the scope of the problem, right? And that's what we really want to know is get sort of down to the individual case but be able to aggregate that, to try to do that is a herculean effort in most cases right now. And again, part of the reason is the court has its own process data but not necessarily individual data that's being collected. Then there's the kind of the issue of, you know, being a researcher and a theorist, the question is like: what do the courts have to know versus what would you like to know, right? And I think that is a huge rub as it concerns guardianship. 

What kind of cases were most egregious? Probably the ones you know. So you talked about Britney Spears, was that egregious or not? I don't--I--we don't know. We really don't. Anyway, we know how that one turned out. But there were a couple that stood out around the time that we were doing some of that work or maybe predated it somewhat, and they would be the ones that you would've seen in the news if you paid attention to those sorts of things. One would've been the April Parks case. And that was sort of floating around as we were doing our work because we knew about it. This was the guardian in Nevada who exploited a lot of the persons for whom she was serving as guardian. Another one that sort of was floating around at the time was in Florida. It was Rebecca Fierle, and that was a case where this particular person who had lots and lots of people under her that she served as guardian was actually giving them all DNR orders. And so, those were two big, you know, big cases.

And why do we know about them so much? Because they had so many people for whom they served. But the question you want to know is like: so who's doing the abusing? We don't know. If you study elder abuse, and I've done a fair amount of work on that too, we know the majority of people that we at least can record who are abusing are family members. And family members are the majority of people who are serving as guardians. If that's the case, we know very little about family members who are abusing. We know more because of the larger numbers when certain people are serving as a guardian. That's sort of what drives that. But if general abuse and guardianship abuse have similarities, it's probably the things we know about the least which may be the family members. I--we believe most family members are doing exactly what they should be. But we would also guess that some aren't, but we know so very little about it.

AMELIA VORPAHL: I just cannot believe that there was someone who was deceased that was not found out. I mean, that to me seems a pretty imperative thing to know in the system. Based off one of the examples you gave though, it begged the question to me: is there a limit, or is it a state by state, county by county, or we just don't know, to how many people one guardian can be a guardian for?

ERICA WOOD: States don't generally have a caseload caps. Some state studies, like I live in Virginia, and there was discussion of should there be a state--a cap, a limit on caseload for guardians. But the legislature did not impose such a limit, and I don't actually know of any state in which there's a guardianship caseload cap. There was a guardian in Ohio who had 400 individuals under his care, so--and the guardianship agencies have--you know, can have a thousand or so. Of course, they have more staff. So, in addition to just the caseload itself, you have to look deeper and look at what is the client to staff ratio because if a guardianship agency has a lot of staff members, who are very dedicated and go out and visit individuals, that makes a huge difference too. So it's more complicated than just the caseload.

AMELIA VORPAHL: Right. So, we talked a lot about what the report found and a lot of that was we don't have the information and we're not tracking the data that we really need to to understand the system fully and to prevent abuse happening within the system. What can be done? Erica, are there actions that can be taken or reforms to the system that can be done to make it less open to abuse and fraud?

ERICA WOOD: So, by our environmental scan, we were charged with looking at federal recommendations. So, I'll focus on our recommendations but really, of course, again, guardianship is at the state level. And states have a lot to think about in guardianship as far as what initiatives they want to focus on for reform. That's where the real reform will happen, but there are things that the federal government can do. In an overarching sense, we need more uniformity in the patchwork that Pam has described. We need, of course, more resources for court monitoring. We need more emphasis in understanding about less restrictive options that might avoid guardianship. So, I'll just--I'll touch on six federal recommendations that we made. 

We know that there are a whole number of federal databases and surveys in healthcare, in criminal justice, in long term care, in legal services. So, the federal government collects a lot of information. So, that provides an opportunity to add guardianship into some of those surveys and databases and at least pick up a little bit more basic data at the federal level about guardianship. So, we thought that was an opportunity. For example, there's a National Adult Maltreatment Reporting System for adult protective services. There's the Social Security representative payee system. There's a Long Term Care Ombudsman data system. There are many data systems, and guardianship encounters and bumps into many of those systems and issues, so could the federal government add that as another field. 

But then there's the need for uniformity, and there is a uniform law called the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act that has been adopted by a couple of states and that--and is being looked at by a whole number of other states or adopted in part. And that model law includes a number of safeguards against abuse and exploitation. So, if the federal government put in place some incentives for states to adopt that uniform law or similar laws that would help a lot. But overall, clearly, to stem guardianship abuse, the courts need data, and they need it, again, for monitoring individual cases and they need it for making systemic assessments including, and of course this is one of Pam's great interests, is including the outcome. What is the outcome of the guardianship? Did it improve the person's life, or actually did it do the opposite? So, we don't have any data on that. So, anything that can increase data. And that goes to funding for court technology. It goes to the uniformity of court technology. And it goes to staffing for states to actually use and understand that technology and have uniform databases and uniform data standards. And the National Center for State Courts is leading an effort to look at that, and I think if there's a glimmer of hope here, it really is in the court technology, because I think there's some good things that could happen there. 

But clearly, courts need more resources and staffing, and the administration on community living has done a wonderful thing. It has funded 10 states for guardianship Elder Justice Innovation grants to really spearhead and strengthen huge improvements in the guardianship system in those 10 states, and it's got a request for proposals out for additional states. That's fabulous. But that's only 10 states, and grants are time limited. They will be over. What we really need is something that's ongoing. 

We need an ongoing guardianship court improvement program. And there is a model for that type of program. If you look at the child welfare system which has very strong parallels to the adult guardianship system, since 1993, each--the highest court in each state has been receiving funds on a continuous basis to improve the child welfare court-based system. And that includes things like training, right to counsel, all kinds of practices that will prevent abuse and improve people's access to keeping their basic rights including use of less restrictive options. And the Fourth National Guardianship Summit which took place in 2021 made a very strong case for a guardianship--an adult guardianship court improvement program that would be ongoing, and advocates from the summit hoped to capture the attention of legislators on the hill.

AMELIA VORPAHL: Thank you. And I think that comparison that you made to setting up a system that's similar to the child welfare court system, to me, makes a lot of sense, and I'm kind of surprised that is not in place for something like this, where it's so easy for people to kind of get siloed into these different systems, and every court system is different and has different procedures and protocols, and I think it would make a lot of sense to kind of have that uniformity. So those recommendations make a lot of sense to me as a layperson. Pam, did you have anything to add?

PAM TEASTER: Actually, I don't. Except, I don't want to leave you with the idea that it's all hopeless because there are lots of good glimmers of things--that--we--and Erica and I have watched them over time because we've been looking at this issue for a long time. So, we get all excited, and a balloon sort of goes up in the air, and it looks like things are really going to become inherently better. Then something--some other issue takes its place for a while and the enthusiasm begins to lag, and it's not that people are not interested in it. They are and they have been. But I think something diverts the focused attention on the issue. That's why when there's a Britney Spears episode, that's a great thing for us. Not--we're not happy for that, but I'm saying, it's a good thing for us because it focuses natural--national attention on that again. And when we--unfortunately, you have egregious cases that we hear about, it focuses national attention on that again, and more people know about the word guardianship or legislators know about the word guardianship.

AMELIA VORPAHL: That's a great point that guardianship itself is not an inherently flawed system. When it's working like it's supposed to, it can really help and protect people, and that's the whole point. But we need that oversight and data, I think, is what I've learned from talking to you two. 

Thank you both for talking today about guardianship and abuse. And thank you also to our listeners for tuning in. Please follow us on Spotify and Apple and stay tuned for more episodes from NIJ. Thanks, everyone.

SPEAKER 2: To learn more about today's topic or about NIJ, visit the links in the episode description and join us for new episodes every month.