By Bonnie Olsen, PhD and Julie Schoen, JD
March 25, 2021
This weekend I watched Netflix’s latest production “I Care A Lot” a story depicting a harrowing fictional journey into the dark side of our guardianship/conservatorship system. The film follows a court-appointed guardian who seizes the assets of elderly people for her own, until she seizes the wrong person. My family members watching this with me were incredulous, “Surely this can’t happen, someone cannot just be ripped from their home and their belongings and their rights!” So, I paused the movie and gave them a brief overview of the guardianship system and that led to this blog post.
Being part of the National Center on Elder Abuse, NCEA, I am privy to stories from older adults and their family members of their dealings with all forms of elder abuse, physical, emotional, financial, sexual and neglect. People tend to focus on one type, but these cases are usually multi-layered and complex. I am often told of family members pitted against one another trying to do what is “best” for mom or dad only to be thwarted by a sibling who has Power of Attorney and control. I will offer the “good” son or daughter a litany of options, from contacting adult protective services, employing home health care workers, to the more drastic step of seeking a conservatorship/ guardianship. However, in a legal system that is already at capacity and backlogged a proceeding to determine who can now “step into the shoes” of the older adult and for all intents and purposes control their lives, little time, attention, or resources are directed to this monumental power.
Most disturbing, the older adult themselves can be completely left out of the process. Affidavits and secondhand stories take the place of actually meeting the individual, getting a third-party professional assessment of their capabilities, and weighing what would be the less restrictive means to ensure quality of life and dignity in aging. We are asking a lot of our beleaguered legal system and judges in particular.
But the Guardianship issue is something that is actively being addressed at the NCEA and at the Center on Elder Mistreatment at USC. To weigh in on what could be done, I called my go-to capacity expert and colleague Dr. Bonnie Olsen to talk about solutions. Dr. Olsen is trying to provide a tool to get a truer picture of the individual and what would be the less restrictive means to ensure that we can live the life we are all entitled to as we age…
This provocative film provides a gruesome, although exaggerated depiction of what unfortunately occurs, even as we become increasingly aware of the inherent tension that underlies these issues. The balance between advocating for an older adults’ rights, autonomy and independence conflicts with the intention of protecting and providing needed although often unwanted services. There is nearly always a struggle to find the right mix so that older adults get the care they need while enjoying the independence they deserve. Two critical concepts help to guide us through this dilemma: person-centered care and less restrictive alternatives. These concepts, on the surface so simple, reflect a paradigm shift in how guardianship is conceptualized and increasingly implemented in the court. Drafted in 2017, the “Uniform Guardianship Conservatorship and Other Protective Arrangements Act” (UGCOPAA) seeks to ensure the person subject to conservatorship has a voice in decisions about their life, that plans are person-centered, and that the court monitors compliance. Next, it seeks to ensure that the least restrictive intervention be implemented which may include approaches such as supported decision making. Lastly, the act makes it easier for all persons involved in the process to achieve these goals by simplifying processes and documents. Sounds like a good plan but only a few states have adopted the act in whole while many others have updated probate codes to reflect these intentions.
Once laws are changed to reflect these concepts, they have to be implemented in practice. One effective strategy was the creation of the WINGS project: Working Networks of Guardianship Stakeholders. This project was executed in seven states, worked towards achieving the needed reforms in guardianship law and importantly put the changes into practice. Funded through the Administration on Community Living, these projects resulted in measurable change and now help guide ongoing efforts in reform. It’s a start but not sufficient to achieve the reforms needed to stop those who seek to take advantage of others through guardianship.
Another strategy to translate these concepts into pragmatic changes in the courtroom is the project I am currently working on. Our team of researchers at USC, with the advice of an expert advisory board and input from judges across the country, developed a tool currently being pilot tested nationally to assist judges to evaluate evidence in guardianship cases to ensure a more person-centered, least restrictive approach. With funding from the Elder Justice Initiative, the Judicial Guardianship Evaluation Worksheet provides a structure to view evidence through so that it more clearly identifies where and when the individual could be supported through other means, such as technology, supported decision making, and limitations to guardianship orders. In addition, the tool highlights evidence that may indicate an increased risk of exploitation or abuse that could occur through the guardianship itself. Back to the film: Marla, we have your MO and are on to your game!
It is clear that guardianship reform is needed, as evidenced by the story line in this film. We hope the vast numbers of people who have viewed it become more aware of the need to attend to this societal problem. We are all aging, so we all have an interest in improving the system to ensure justice for all. Our obligation is to not only change guardianship law, but also to provide sufficient support to the judicial system that it can actively and intentionally employ strategies that will support our dignity as we age. Notice the shift from them to us. Having just entered the “older adult” phase of my life I recognize in new ways that aging is my goal. But please, let’s all work to put the structures in place that allows all of us to age with as much autonomy and independence as we can muster.