Cracking Down on Unscrupulous Guardians Seeking to Exploit Seniors
By: Sen. Susan M. Collins
Incidents of financial exploitation against older Americans have exploded in recent years. The schemes have become more complex, and many of these situations are not identified until the seniors have lost their homes, their savings, and even control of their own lives. Perpetrators include friends, family, strangers, and professionals who have been granted legal authority, or guardianship, to control the individual’s life and finances.
As Chairman of the Senate Aging Committee, I recently held a hearing that continued our efforts to help ensure older Americans are protected from exploitation or abuse by those in positions of power or trust. In addition, the hearing examined the role professionals play in both perpetrating these crimes as well as protecting seniors from predators. It also examined how states are confronting financial exploitation by guardians.
An estimated 1.5 million adults are under the care of guardians, including family members and professionals, who control billions of dollars in assets. Guardianship, conservatorship, and other protective arrangements are designed to protect those with diminished or lost capacity, not to provide an opportunity for deception and financial exploitation.
Recent press accounts of exploitation and financial abuse of seniors by guardians or others in positions of trust or power have called attention to the need for continued oversight in this area. One article published by The New Yorker in late 2017 documented the horrific story of a couple in Nevada who allegedly lost control of their lives and assets to a private guardian. The guardian was able to obtain a court order appointing herself as the couple’s guardian without providing any advance notice to the couple or their adult daughter.
After local reporting uncovered this case in 2015, an investigation revealed that, during the previous 12 years, that perpetrator had become a guardian for more than 400 wards of the court. Last year, a grand jury indicted the guardian on more than 200 felony charges, including racketeering, theft, exploitation, and perjury.
In a recent case here in Maine, police charged a pastor in York County with exploiting an older woman while she was under the care of both a guardian and conservator. The pastor allegedly took the woman to her bank; withdrew money to have the locks changed on her former home, which had been on the market; and took down the “for sale” sign.
According to the police, the pastor told the woman that he would help her return to her home, even though it was not equipped for the wheelchair access she required. He suggested his daughter could live with the woman to care for her. Police said that his goal was to ingratiate himself and have access to this woman’s financial accounts and property.
Fortunately, in this case, the conservator, who was legally responsible for protecting the woman’s assets, identified and reported the suspected criminal activity to the police. Unfortunately, as these cases in Nevada and Maine make crystal clear, financial exploitation by some guardians and conservators remains a real problem. These cases highlight shocking breaches of trust by people who obtained positions of power or influence over vulnerable seniors.
To address this growing problem, I cosponsored the Elder Abuse Prevention and Prosecution Act, which became law last year. In addition to directing the Attorney General to develop model legislation for states to adopt, it provides the Department of Justice with greater tools for prosecuting criminals who take advantage of our seniors.
At our recent hearing, the Committee heard testimony from experts on guardianship who offered their insight on ways to improve the system. Among them was Syracuse University Law Professor Nina Kohn, who played an integral role in the development of model guardianship legislation as part of her work with the Uniform Law Commission.
The laws and rules regarding guardianship are set at the state level, and they vary widely across the country. The uniform legislation sets clear standards for guardians that describe their responsibilities and authorities and better protects the rights of seniors and those with disabilities. It encourages the use, when appropriate, of limited guardianships that restrict the powers of the guardian rather than the more common and more restrictive full guardianships that can increase the vulnerability of those under guardianship to be exploited and mistreated. In addition, this uniform legislation provides tools for the states to more effectively monitor fees charged by guardians so that the charges are not excessive.
In her testimony, Professor Kohn noted that the Uniform Law Commission’s guardianship legislation, with some adjustments, has passed in the Maine Legislature, putting our state in position to become the first in the country to adopt these reforms. Once again, Maine is living up to our motto, Dirigo (“I lead”).
Guardianship, conservatorship, and other protective arrangements are designed to protect those with diminished or lost capacity, not to provide the opportunity for deception and financial exploitation. I am proud that Maine is leading the way in providing these protections.