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Safeguarding Guardianship for Older Adults


By Pamela B. Teaster, Ph.D. & Holly Ramsey-Klawsnik, Ph.D.

The United States population of adults aged 65+ is expected to double by 2030.  The growing segment of the population are people aged 85+, often those most likely to need increased assistance as they experience physical and/or cognitive changes. Adults may designate (or be designated) a guardian to make financial or health care decisions, or both, typically appointing a family member.  Most guardians endeavor to ensure the best quality of life for those they serve by making responsible decisions about the person’s health, safety, and finances.

Powers given to guardians can be immense (e.g., ability to sell a person’s home and personal property, enter into contracts, clear all medical treatments). Some can charge fees for their services that are payable from the person’s bank account, which, left unmonitored, has the potential for collusion and corruption. Consequently, while guardians are meant to both promote autonomy and provide protection, there is a risk that a vulnerable adult may fall victim to maltreatment as a result of having a guardian. No reliable data exist on how many guardians harm their wards or the outcomes of a guardian’s decisions. High-profile media exposés, such as that of Rachel Aviv (2017), have highlighted abuse by guardians.

Guardians are controlled by state law and have a relationship with the protected person that is delegated by a court and rooted in trust. It derives from a state’s parens patriae power or duty to act as a parent for those considered too vulnerable to care for themselves. Requirements for who should serve as guardian differ by state and type. Some states require that guardians have specific training and pass a test; others only require that guardians are willing to serve and do not have a felony conviction.  Approximately 75% of guardians are family members or friends. In 2016, the National Center for State Courts estimated that guardians across the country supervise 1.3 million adults and an aggregate of $50 billion of their assets. Also in 2016, the GAO reported that in just eight cases it examined in six states, guardians had stolen more than $600,000 from those whom they were entrusted to protect.

Elder abuse by surrogates such as guardians, whose job it is to manage and advocate for a protected person’s health and well-being, is a serious and growing problem identified by Adult Protective Services (APS) programs. It is urgent to develop informed strategies for preventing and ending elder abuse by those holding a duty to protect.  Funded by The Retirement Research Foundation, the team of Drs. Pamela Teaster, Cory Bolkan, Kenneth Gerow, and Holly Ramsey-Klawsnik (from Virginia Tech, Washington State University, University of Wyoming, and NAPSA respectively) is working with six APS programs (CA, FL, NV, NH, NC, and TX) to systematically study this problem.

The study addresses guardians, powers of attorney, and representative payees and is exploring the nature, extent, and impact of maltreatment by perpetrators designated as surrogate decision makers compared to abuse perpetrated by others. The researchers hope to illuminate this problem, inform prevention and intervention, and report findings by July 2020.

Links and Resources:

Aviv, R. (2 October 2017). How the elderly lose their rights. The New Yorker. Retrieved

online at https://www.newyorker.com/magazine/2017/10/09/how-the-elderly-lose-their-rights

Government Accountability Office (2016). Elder abuse: The extent of abuse by guardians is unknown, but some measures exist to help protect older adult.  Retrieved online at https://www.gao.gov/products/GAO-17-33

Senate testimony of Dr. Pamela B. Teaster:

https://www.aging.senate.gov/imo/media/doc/SCA_Teaster_04_18_18.pdf

National Guardian Association: https://www.guardianship.org/

Center for Guardian Certification: https://guardianshipcert.org/

For information regarding collaborating with APS regarding suspected maltreatment perpetrated by guardians, please see:

Understanding and Working with Adult Protective Services, A Three-Part Series

Part I: Overview of APS Programs

Part II: The Reporting and Investigation of Alleged Abuse

Part III: Intervention Collaboration

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Special Thanks to Judith D. Tamkin

We are sincerely appreciative to Judith D. Tamkin for her gift to help establish the USC Center on Elder Mistreatment’s website. Her deep and personal commitment to eradicating elder abuse is helping to reshape our understanding of elder abuse and ultimately save innumerable older adults from abuse and neglect.