The Law Office of Scott C. Painter, P.C., has extensive experience as a guardianship attorney, including litigating cases in the Orphans’ Court of Berks County. If your parent, spouse, or other loved one is unable to care for himself or herself for any reason, you may wish to take charge of his or her affairs. If you do not hold a power of attorney or there are family conflicts, this may require establishing legal guardianship. The Law Office Of Scott C. Painter, P.C., will work diligently but sensitively to guide you through this process.
There is the potential for abuse by guardians and other caregivers and caretakers, and we want you to be aware of these dangers. Here is information from the U.S. Department of Justice.
What is abuse by guardians?
While courts make efforts to ensure that guardians are trustworthy, some guardians have taken advantage of people in their care. The mistreatment could be financial, physical, emotional/psychological or any other type of abuse of an older person or person with a disability. Guardians also may neglect the people for whom they have a responsibility to provide care. These perpetrators of abuse can be anyone serving as a guardian (family members, trusted others, non-profits, professional guardians, agencies).
There is currently limited information on the number of guardianship cases involving abuse. The US Senate Special Committee on Aging and the US Government Accountability Office have highlighted the problem and cited anecdotal information. The National Center for State Courts has found that most reports on the problem of exploitation by guardians lack empirical data. Reports of fraud or other malfeasance by guardians have most often involved financial exploitation, but other types of mistreatment are also reported. Abusive acts by guardians may meet the definitions for various state and federal crimes, depending on the facts of the case. Guardians might be charged with such crimes as elder abuse, embezzlement, larceny, money laundering, theft, and neglect.
For an explanation of how guardianship can be a vehicle for abuse as well as a remedy, see the National Center on Elder Abuse issue brief, Guardianship: Remedy vs. Enabler of Elder Abuse.
To learn about how to spot mistreatment by a guardian and what to do about it, see the National Center on Elder Abuse flyer, What if Your Guardian is Not Doing What They Should?
How can the courts with jurisdiction over guardianship cases respond to abuse?
A court with jurisdiction over a guardianship case might uncover evidence of abuse through monitoring, or a person or government agency might need to file a complaint or petition the court to respond to the mistreatment. These courts can take the following types of actions:
- Freeze assets and/or restrict accounts – Courts may take these actions to limit a guardian’s access to money and property while investigating a case or preparing to take another protective step.
- Investigate allegations of malfeasance– Once allegations of abuse have been made, courts can appoint a guardian ad litem, investigator or visitor to investigate. A court can also audit an individual’s assets or order an accounting by an external entity such as a certified public accountant.
- Order repayment for lost assets or property – Such orders might restore lost assets but, in many cases, the only way to recover funds is through a bond that the guardian obtained upon appointment. Sometimes courts do not require bonding when the guardian is appointed, making it more difficult to obtain repayment for losses at the hands of the guardian.
- Enforce statutory rights to communication and visitation – When abusive guardians use isolation tactics, family members and others may be able to seek orders enforcing state laws that define the rights of people subject to guardianship to interact with others of their choosing.
- Appoint a co-guardian or limit the powers of the guardian – This strategy may help deter or stop mistreatment by a guardian.
- Remove the guardian – Removal may be the best way to stop guardian malfeasance, and petitioners might suggest a willing and suitable replacement.
- Terminate the guardianship – Less restrictive options or changed circumstances might lead a court to terminate the guardianship entirely.
Besides courts with guardianship jurisdiction, who can address abuse by guardians?
Numerous federal, state, and local government entities and non-profit agencies can respond and provide services when someone suspects that a guardian is mistreating an individual. Although the court has the sole power to impose certain orders such as removing the guardian or surcharging bonds, other entities can get involved and assist victims. These include:
- Adult protective services – Anyone suspecting mistreatment by a guardian should report to adult protective services. Find your state or local adult protective services agency through the Eldercare Locator. Most states have laws making certain categories of people mandatory reporters of elder or vulnerable adult abuse.
- Protection and advocacy systems – Protection and Advocacy Systems are federally-mandated state-based organizations that work to protect the rights of people with disabilities, including guarding against abuse. Find your protection and advocacy agency here.
- Long-term care ombudsmen – If the individual resides in a nursing home (or, in some states, receives home- and community-based services), the long-term care ombudsman can investigate and resolve complaints about abuse, neglect, and exploitation, including complaints about guardians. Anyone can file a complaint, but the resident (or an appropriate representative) must consent in order for the ombudsman to investigate and share information. Learn about the ombudsman program here and find your local ombudsman.
- Law enforcement – A guardian’s breach of duty may violate criminal laws and warrant investigation and prosecution. In addition to reporting to Adult Protective Services, individuals suspecting guardian abuse should report it to law enforcement. Contact your local law enforcement agency, your state attorney general, or call 911. Some recent examples of guardianship fraud cases pursued by the United States Department of Justice include cases in Pennsylvania and Florida.
- Attorneys – Separate from the guardianship system, there are various civil actions that may apply to abuse by guardians. Depending on state law, civil attorneys might bring cases alleging breach of fiduciary duty, breach of contract, fraud, undue influence or a private right of action for elder abuse. Remedies might include restitution (repaying money lost), voiding documents including deeds, or other monetary awards of damages.
- Federal agencies – If the guardian also serves as a Social Security representative payee or VA fiduciary and is misusing public benefits, individuals may report to the Social Security Administration Office of the Inspector General or the VA Office of the Inspector General.
- Professional licensing boards – In some states, professional guardians may be certified, licensed or registered. State boards can investigate and may revoke a license or certification. If the guardian is a lawyer, the state has a committee that takes disciplinary action when a lawyer violates professional responsibilities.
Many times, you might think there’s a right approach. You may be told to do certain things and they may be absolutely wrong. Call an experienced professional and get the information before you make a decision. It’s very important that you get the proper legal advice.
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The law office of elder law attorney Scott C. Painter, P.C., is located in Wyomissing (outside of Reading, PA, in Berks County,) and offers trusted legal services in the areas of elder law, including nursing home planning, trust and estate services, and veterans benefits. Scott C. Painter is a Certified Elder Law Attorney (CELA®), and he is also a member of the National Association of Elder Law Attorneys (NAELA).
If you have an issue or question, we encourage you to call us. With legal matters, time is of the essence. Call us for a consultation at 610-378-5140. The $300 consultation fee is waived if Attorney Painter is retained to perform services.