Getting older can be bittersweet. On the one hand, you’re (hopefully) reaping the benefits of a lifetime of work and looking forward to a comfortable retirement. On the other hand, that transition often comes with its own financial, health, and psychological challenges, especially if you don’t have a lot of close family.
One thing you probably don’t worry about is being declared incompetent and having a total stranger arrive at your house to forcibly remove you to a care facility, then seize your property and assets and start paying themselves generously to take care of you, whether you want (or need) them to or not. But it happens—it’s called involuntary guardianship, and it’s estimated that anywhere from 1 to 3 million elderly people are languishing under it today.
It’s actually terrifyingly easy for a professional guardian to have you declared incapable of handling your own affairs and take control of every aspect of your life—where you live, the doctors you see, and how much contact you have with friends and family. Here’s what you need to know.
What is involuntary guardianship?
State laws vary, but in general the process is similar. The concept of adult guardianship falls under the concept of the government’s parens patriae powers, empowering the state to act as a “parent” to those who cannot care for themselves. Nothing wrong with that, and it’s often a necessity for folks who are truly unable to handle their own lives.
These powers allow someone to petition a court to declare someone incompetent if they are a danger to themselves because they can’t manage their medications, finances, or other aspects of their lives. Under the current system, this typically requires a medical professional to provide a written statement to that effect. If a court agrees that the individual needs supervision, a professional guardian is appointed, given full control over the competent person’s life (including their money, healthcare decisions, where they live, and who they can have contact with). The guardian bills the estate of the person for their time, and can—and usually does—sell off their assets in order to pay for their care (including their own compensation).
While in some cases this could be a godsend—if an elderly person who is no longer capable of caring for themselves lacks relatives who can step in to care for them, for example—the current system is ripe for abuse due to several factors:
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Ease. It’s ridiculously easy to have someone declared incompetent. The need for a medical professional’s statement simply means that any doctor, nurse, or therapist you’ve had contact with can weigh in on your competency, and it’s documented that many professional guardians maintain “whisper networks” among healthcare professionals who are willing to provide these statements—even if they only met with you once. And many of the hearings held to grant these petitions only last minutes as judges or judge-appointed supervisors speed through these cases, accepting statements by professional guardians as fact without any pushback.
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Secrecy. The court proceedings to have you declared incompetent are often emergency ex-parte petitions, meaning that you don’t have to be notified and your presence is not required. In other words, you can be declared incompetent and have your life stolen with no warning, and no chance to speak for yourself.
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Lack of oversight. In most areas of the country it is extremely easy to become a professional guardian—for example, in New York you need to take a one-day course to be certified, and there isn’t even a background check.
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Durability. Once you’re under guardianship, it is almost impossible to get out. Even if your family rallies to your cause, most people never emerge once they’ve been declared incompetent. Court records are usually sealed, and there is no government agency tracking guardianships, so even getting information about a loved one under guardianship can be a challenge.
These are some of the reasons why up to two million people are currently under involuntary guardianship in this country—with their professional guardians controlling close to $300 billion in seized assets. If you’re an older person with any assets at all, you could be targeted.
How to protect yourself from involuntary guardianship
Protecting yourself—or a loved one—from the possibility of involuntary guardianship can be pretty straightforward, depending on where in the timeline of events you are.
Before there’s anything to worry about
When everything is normal, the possibility of being forced into an involuntary guardianship seems remote—but this is when you should be preparing.
Start by consulting with an estate and probate attorney to have a Health Care Proxy designated. This person will be legally empowered to make healthcare decisions for you if you’re incapacitated—or deemed incompetent to make those decision yourself. Choosing someone you trust will spare you from being assigned a professional who may or may not have your best interests in mind. Next, create a durable power of attorney document naming someone to handle your finances and other aspects of your life.
These two documents will make it very difficult for a guardian to swoop in and force you or a loved one into guardianship—and much easier to challenge if it somehow does happen.
During the process
If you or a loved one are visited by a professional guardian and escorted from your home, there will be a hearing at some point where a judge or judge-appointed supervisor decides whether to make the guardianship permanent. You can challenge the guardianship at this hearing—but it’s often very difficult to do so, as these hearing are very brief, and the individual under guardianship typically don’t have legal counsel assisting them. Even if family are present in court stating that they want to take responsibility and are capable of doing so, the judge or supervisor may not pay attention.
If it has already happened
If you or someone you love has been forced into an involuntary guardianship, it can be very, very difficult to extricate them—but you do have some resources. You can contact your local adult protective services agency to report an abusive situation regarding a guardian, or contact your local Protection and Advocacy System if you or your loved one is disabled (but still capable of caring for themselves).
You should also contact local law enforcement. Although guardianship is legal and processed through the court system, abuse of that system is not legal. In 2018, for example, April Parks was sentenced to up to 40 years in prison for illegally forcing people into guardianship and profiting from their estates.
Odds are you won’t ever have to deal with an unscrupulous guardian and an involuntary guardianship. But making certain it never happens to you requires just a little bit of planning.
