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The Real Story About Guardianship

There is a fascinating movie on Netflix these days.  I Care A Lot tells the story of Marla Grayson, a professional guardian, played by Rosamund Pike, and the schemes she employs to deprive her clients of their money, property and access to family. The movie boasts a strong cast, including Peter Dinklage and Dianne Wiest. It is a film full of villains and their victims.

So, what is guardianship, anyway? Are there real life Marla Graysons out there? 

A guardian is a person, legally appointed by the court, to “take care of and manage the property of a person (the ward) who does not possess the legal capacity to do so, by reason of age, comprehension or self-control.” A guardian’s role may include much more than property decisions, particularly in healthcare matters or situations where the ward’s safety is at risk. If you are of a certain age, you probably recall the narrator on the TV series Batman, identifying two characters as “millionaire Bruce Wayne and his youthful ward, Dick Grayson.” Batman was a legal guardian. 

The Graysons, Marla and Dick, are not typical examples of either guardians or wards, but they do provide a jumping off point for a discussion of guardianship and its alternatives. 

Legal guardians are empowered to make decisions for their wards because the court has determined the wards are unable to act on their own behalf. In the film, Marla Grayson identifies wealthy, solitary women, and working with an unethical doctor and an unscrupulous owner of a long-term care facility, convinces a judge that these people are incapable of managing their own affairs. Family members, friends and the wards themselves, are absent and have no say the matter. In one scene, Marla’s office has a wall that is filled with individual photos of her wards. There must be hundreds. As guardian, she manages their affairs, selling their homes and possessions, draining their bank accounts, and isolating them in care facilities. Attorneys, doctors and long-term care providers use their authority to victimize the people in their care. Does any of this reflect reality? 

Guardianship serves a useful purpose, because there are situations when people cannot make their own decisions or speak on their own behalf. Parents of someone with a developmental disability who is over age 18 or family members of someone with dementia are two examples of those who seek guardianship for their loved one. Legal guardianship allows them to speak on their loved ones’ behalf. It is difficult to track the number of guardianships within a state, but many guardians are acting on behalf of one or two people, often related to them, and often as part of their role as parent or caregiver.  
Marla Grayson’s guardianships are different. She represents multiple wards, accessing their wealth for her own benefit. She is not involved in their care in any meaningful way, and she relies on deception to keep them isolated and vulnerable. She seeks out those who do not have friends and family.

So, who has a guardian? And who needs one?

The popular image of “guardian” is often negative; recent stories about Stan Lee or Brittany Spears bring images to mind of greedy, unscrupulous handlers. But most guardianships are carried out as intended. The wards are not celebrities, or fabulously wealthy. The guardian has a genuine interest and often a personal connection within the life of the ward. 

The unbefriended poor. . .

Marla Grayson’s victims in the movie are people with money and property. But often the person who needs a guardian has neither. Ken Bennett, an attorney who founded the Center for At Risk Elders in Indianapolis, described them as the “unbefriended poor”: someone with no financial resources and no family or friendship support. This might be a frail older adult who has no living relatives.  Often, it is someone who presents at the hospital in a medical crisis. They are treated and stabilized. But, dementia, mental illness, substance use, poor health or disability render them unable to communicate their wishes or provide consent for treatment. They enter the system through the emergency room door, but lacking the ability to speak for themselves, they cannot leave.  

Hospitals are not equipped to provide long-term housing in their emergency departments, and they are not legally or ethically able to act as the decision maker for a person who is unable to consent to care. Many hospitals will refer an individual to a guardian: someone who is independent of the hospital and its staff and thus has no obvious conflict of interest in acting on the patients’ behalf.  

The problem with this arrangement is that the guardian receives little or no compensation for his services. His ward has no resources. States offer little or no financial assistance to cover the legal fees and other costs of guardianship.   What often happens then is that an attorney or other advocate will take on a number of indigent persons as their guardian. (Marla Grayson’s “wall of clients” is one element of the movie that actually rings true).  Their compensation is low, a small percentage of a disability or social security payment, so they take on multiple cases to cover expenses. But how well can a guardian represent the wishes or best interests of a frail, disoriented individual who is one of a hundred on their caseload and may be hours away from where that person resides? 

Other guardianship options

Fortunately, there are some other options for providing guardianship. Non-profit organizations may take responsibility for guardianship of some of their clients, including family service agencies, Area Agencies on Aging, Mental Health America, and some nonprofit law practices. Many states have recognized volunteer guardianship programs (guardian ad litem) that allow a volunteer to take on the role of speaking on behalf of someone who cannot speak for themselves. 

Like many elements of long-term services and supports, guardianships and oversight of those guardians is largely underfunded. Many states have capped or even reduced their funding for guardianship programs. Volunteer guardians can help with the caseload, but these programs require organizational support the legal fees, financial responsibilities and reporting requirements that guardianships require.

So, Miranda Grayson is an imperfect example of a guardian. What does Dick Grayson have to teach us about being a ward? For one thing, comic fans know that Dick Grayson grew up. No longer Robin the Boy Wonder, he battles evil as Nightwing.  He no longer needs a guardian.  

Guardianship is intended to protect a vulnerable person. In the law, that generally meant someone who could not make an informed decision: either because they were either too young, or else incapacitated by injury or illness. But unlike guardianship, incapacity is not always total, nor is it always permanent. It is an imperfect tool. But what other options are available? 

Part II

Alternatives to guardians

There are times when guardianship is needed, when a person does not have the capacity to make decisions on his own behalf. But guardianship has its challenges. It can be a costly and intimidating process. The greatest complaint with guardianship breadth and the permanence of it. Once a person is declared “incompetent” it can be difficult to have the decision changed. Who has oversight over the guardian to ensure that the ward’s needs are met?   Fortunately, there are a variety of other options the provide more opportunity for the person to participate in the decision making process. Laws vary by state, but here is an overview of alternatives.

Payees

Financial exploitation or abuse, and cognitive impairments that can impact a person’s ability to make sound financial decisions: these are challenges addressed through volunteer payee and representative payee programs. Volunteer payees work with clients to review statements, pay bills and understand their finances. Representative payees go a step further, having signing authority for the individuals’ accounts. “Rep payees” are often used help protect older adults, veterans or persons with disabilities and ensure that pension or disability income is used for the individuals’ benefit. Individuals or organizations can serve as rep payees. The rep payee may collect a modest fee from the beneficiary to cover the costs of services (bank fees, postage or other direct out of pocket expenses). A new law in 2018 created more oversight of these programs ensure protections for beneficiaries.
 
Power of attorney

There are times when an individual is unable to make his or her wishes known or act on them.  This may be temporary or longer term (sometimes referred to a durable power of attorney). At one time or another, you may have assigned power of attorney (POA) to someone to sign a contract or be available to make a decision on medical treatment while you were under anesthesia. POA allows another person to act on your behalf in accordance with your wishes or direction. The designation of a POA may be established in advance, based on a specific circumstance or situation when a POA may be invoked (a concept referred to as “springing” the POA.) POA may refer to either document establishing a POA, or the person who is designated to act as POA.  
Some people confuse the roles of guardian with that of a POA. In simple terms, the individual who grants power of attorney also has the ability to revoke it. A POA cannot overrule the individual’s decision.

Supported decision-making

In recent years, a new model has developed which provides a greater role for the individual in managing their affairs than traditional guardianship. The concept of supported decision-making is quite simple; allow the person to participate in making decisions on their own behalf as they are able. Rather than having a legal guardian, the individual may have a decision support system of people who can assist them in making decisions, without giving up the right to act on their own behalf. Advocates for supported decision-making point out this is how most of approach complex or challenging decisions: by seeking out the guidance, counsel and experience of those we trust.  The concept is still relatively new, and not all states recognize the legal status of this model. 

There are links below to other websites with more information on guardianship and less-restricted alternatives.

Notes

Ohio Bar Association on Guardianship

Ohio State Law  

Guardians and their wards

The Center for At Risk Elders (CARE)

Supported Decision Making

Disability Rights Ohio

Power of Attorney

https://www.proseniors.org/824-2/

Representative Payee 

https://www.ssa.gov/payee/