States Move to Regulate Senior Guardians

By: - July 16, 2008 12:00 am

As the U.S. population ages and families scatter across the country, the frail elderly increasingly end up relying on the kindness of strangers when they can no longer take care of their personal affairs.

If family or friends are not available, state probate courts appoint guardians – also called conservators and fiduciaries in some states – to protect incapacitated seniors and dependant adults from self-neglect, predators and scam artists. They take over the checkbook, manage medical care and make other legal, financial and practical decisions their wards otherwise would make for themselves.

“People are living longer and families aren’t as close together as they used to be. There are a lot of orphan elders out there and guardians can make such a big difference in their lives,” said Lexie Lamborn, president of the Center for Guardianship Certification , a professional testing organization.

But in some cases, society’s most vulnerable adults are left in the hands of unscrupulous or incompetent guardians, and until recently, states were not looking over their shoulders.

To address this growing potential for fraud, theft and abuse, California this year joined six other states – Alaska, Arizona, Florida, Nevada, Texas and Washington – in regulating professional guardians appointed by courts to manage the finances and day-to-day needs of those who can no longer help themselves.

By requiring guardian training, licensing and regular audits, states aim to curb the kind of malfeasance and incompetence that already has cost many seniors their life savings and caused emotional suffering and physical harm.

“There are many dedicated professionals who really want to do the right thing. They went into the business because they want to serve people. But there’s always a few bad apples,” Naomi Karp, policy adviser with AARP , told

Even when family members act as guardians, things can go awry. But when people become guardians for hire and have no emotional connection to their wards, states should do more to protect vulnerable seniors, Karp said.

Although no data exist on the number of seniors and dependent adults under court-appointed guardians, a 1987 survey by the Associated Press estimated the number at 400,000 nationwide. At that time the U.S. Census Bureau reported 29.6 million people 65-years-old and older.

Since then, the senior population has grown by 28 percent to 37.9 million and with the baby boomer population starting to move into retirement, the number is expected to jump to 54.6 million by 2020. A new medical study indicates one out of eight people over 65 have Alzheimer’s disease, a brain disorder that is a common cause of dementia.

Since the mid-1980s, all 50 states have adopted laws governing how and when courts appoint guardians and every state except Nebraska provides public guardians for those who cannot afford to pay. Some states also allow payment of guardianship fees through Medicaid, the federal and state health program for the poor.

In addition to the seven states already regulating professional guardians, two more – Idaho and North Carolina – have legislative committees that are considering industry regulation. Policy makers in Colorado, New Mexico, Oregon and Utah are revamping their guardianship laws and may include some form of certification and oversight.

In California, where the new licensing law took effect July 1, revenue shortfalls threaten to postpone a monitoring and auditing program that advocates say is long overdue and essential to ensuring the safety of incapacitated adults.

Although many states are experiencing budget crunches this year, lack of funding for guardianship monitoring programs has been a perennial problem, said Erika Wood, associate director of the American Bar Association’s Commission on Law and Aging . “Statutory improvements are all well and good, but a lot of states just don’t have the resources to do a good job.”

In 1991, Arizona became the first state to enact a guardian or fiduciary licensing program, but lawmakers did not appropriate funds for the program until 1999.

“One of the lessons we learned is that if you go down this path, you need to figure out from the beginning how you’re going to fund it,” said Nancy Swetnam, director of the Arizona Supreme Court’s Certification and Licensing Division , which administers the guardianship program. She said audits and investigations of suspected theft and abuse are time-consuming and require adequate staffing.

“The vast majority of fiduciaries provide a great service. They do the job ethically and competently. What surprised us was the seriousness of the criminal complaints that came in,” Swetnam said.

Like other states, Arizona enacted its licensing statute in response to highly publicized accounts of fraud by fiduciaries. In 1991, after a well-known attorney was found guilty of stealing money from an elderly ward, Superior Court Judge Robert Myers told lawmakers the same thing could happen again, because he had no way to check the background and qualifications of the attorneys he was appointing.

As soon as Arizona’s licensing agency opened for business, a complaint was filed against a well-known fiduciary named Nancy Elliston who had testified before the Legislature in favor of the new licensing requirements. After an intensive investigation, Elliston was found guilty of stealing millions from her wards and was sentenced to seven years in prison, Swetnam said. Since then, five other fiduciaries have been prosecuted and imprisoned in Arizona.

In all, Arizona has licensed more than 300 fiduciaries, Florida has certified 137 guardians, Texas has certified 241, Nevada 86, Alaska has licensed 49 and California has tested 161 conservators for licensing, according to Sally Hurme of the Center for Guardianship Certification, who is working with states to develop training and certification programs.

Nationwide, including states that do not oversee the profession, 1,468 individuals have voluntarily become certified by taking exams developed by the Center for Guardianship Certification . The exam tests professionals on their understanding of legal and financial issues they must deal with, as well as health and social welfare expertise.

Alaska and Nevada use the Center’s national exam to license guardians; Florida, Texas and California use both the national exam and a state-specific test. Arizona uses only a state-specific test. Washington requires training and conducts background checks and reviews of professional guardians.

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Christine Vestal

Christine Vestal covers mental health and drug addiction for Stateline. Previously, she covered health care for McGraw-Hill and the Financial Times.