Guarding Against Guardian Abuse

Involuntary Redistribution of Assets (IRA) How the Goods Are Gotten When the Will Gets in the Way Trust – Should You? Final Thoughts

Involuntary Redistribution of Assets (IRA) actions via misuse of probate instruments or abuse of probate venues are becoming more common occurrences.  Wills, trusts and powers of attorney generally involve property, but guardianships (called conservatorships in some states) pose an even more potentially intrusive threat as they assign control of an individual’s life and/or property to another person – maybe a complete stranger.

Within an estate plan, a person might designate a specific individual to act as guardian in the event of incapacitation, but when the courts become involved, the growing professional guardianship industry is sometimes viewed as a more desirable alternative.  Indeed there are cases in which no family member is suited to assume this role thus necessitating an outside appointment.  A trend, however, is emerging in exposing unwarranted, inappropriately-assigned or overly intrusive guardianships and the public needs to understand how these actions can allow the functional hijacking of a person’s freedom and property.  Disabled or incapacitated adults of all ages are increasingly being subjected to a questionable guardianships while the elderly also remain an especially vulnerable population segment.

According to The Texas Probate Web Site, guardianships are defined as:

a court-supervised administration for a minor or for an incapacitated person.  A person — called the guardian — is appointed by a court to care for the person and/or property of the minor or incapacitated person — called the ward.  In some other states, guardianships are called conservatorships, but in Texas they are called guardianships.

The site provides these definitions of a “minor” and an “incapacitated person”:

A minor is a person younger than 18 years who has never been married or who has not had his or her disabilities of minority removed by judicial action.  A minor is considered an incapacitated person.  An adult who, because of physical or mental condition, is substantially unable to provide food, clothing or shelter for himself or herself, to care for his or her own physical health, or to manage his or her own financial affairs is considered an incapacitated person.  The definition of incapacitated person also includes a person who must have a guardian appointed to receive funds due the person from any governmental source.

Two types of guardianships exist:  a guardian of the person and a guardian of the estate.  The guardian of the person takes care of a ward’s physical well-being while care of a ward’s property may be assigned to a guardian of the estate.  A ward may be assigned only one type of guardian, but in other cases, both types of guardians can be assigned with sometimes the two guardianship roles being filled by one person.

Guardianships are sometimes needed and certainly not all guardians are dishonest or exploitive of their charges, but this capacity is often misunderstood.  The term guardianship sounds as though it might describe a nurturing, security-enhancing relationship, but the practical reality is that the guardian’s responsibility is to ensure “the best interest of the ward” and input or approval of any action by the ward or the ward’s family is not required.  Preservation of the ward’s assets is also not a benchmark further setting the stage for potential conflict between a guardian and ward’s family.  The general public should take additional note as it’s not uncommon for guardians to “spend down” a ward’s assets leaving taxpayers the responsibility of funding care for a formerly self-sufficient person.

Courts or third parties becoming involved in a person’s affairs via the appointment of a guardian or conservator is a way in which Involuntary Redistribution of Assets occurs.  Estate looting or questionable enrichment can be accomplished through excessive or unaccountable billing, the retention of other “professionals” to provide services allegedly related to estate management (lawyers, accountants, etc.) or even the use of “friendly” vendors – especially those involved with the liquidation of property.

Families who suspect wrongdoing must self-fund any legal recourse while a guardian can use estate resources to defend against challenges of his/her position.  It’s not uncommon for judges to be deferential toward court-appointed personnel.

If desired, guardians’ capacity to block family contact can work as an intimidation tool to deter complaints or serve as a means of masking improprieties.  While court-appointed guardians are a potential source of probate abuse, family members serving as guardians have been known to commit many of these same actions so they should never be viewed as immune from taking similar advantage of their status to perpetrate IRA actions.

These things happen. They happen every day. Don’t think it can’t happen to you. And again, not all guardians are by any means dishonest or abusive, but those that are operate under a system that could not be better designed for untoward acts.

IRA targets – including those affected by abusive guardianships – and their families become trapped in a realm of frustration never previously known to exist.  The legal industry defends questionably acting attorneys, elected officials look for “feel good” legislative initiatives and judges are too often impervious to the pleas of IRA targets being “legally” robbed of their property, freedom and sometimes both.  Family members come to recognize the emotional and financial futility in trying to fight a legal system which is supposed to protect the people it’s destroying.

People from the legal and social service industries might try to characterize guardianships as a status in which compassionate individuals “take care” of your loved ones and their property, but beware – sometimes what’s taken is the person’s freedom and everything else they have.