Monitoring

"Red Flags"

Media stories and Congressional reports continue to demonstrate abuses of the guardianship and conservatorship processes. For example, the Government Accountability Office's report, Guardianships: Cases of Financial Exploitation, Neglect, and Abuse of Seniors, focused on 20 cases in which guardians stole or improperly obtained assets from incapacitated victims. In the majority of these cases, the GAO found that there was insufficient oversight of guardians after appointment.

To date, there have been no scientific studies that document specific factors that can be used to detect abuses in guardianships and conservatorships. Rather, lists of "red flags" have been put forward by various experts based on their experiences in monitoring these types of cases. A compilation of factors and actions that may be indicative of problems with conservatorships/guardianships was prepared for the Third National Guardianship Summit and recently published in the Utah Law Review (Summer 2012 issue). When such "red flags" are present, the National Probate Court Standards suggest that these cases may benefit from additional services or training, an examination into the case through a visitor, guardian ad litem, adult protective services, or a hearing.

Concerns

The Respondent:

  • Has no relatives or active friendships

The Estate:

  • Is large and complicated with significant amounts of cash and securities

The Guardian/Conservator:

  • Talks about being exhausted and overwhelmed
  • Wants to resign
  • Keeps changing attorneys or attorneys try to withdraw
  • Has little knowledge about caring for dependent adults or has little experience with financial matters
  • Excessively controls all access to the respondent and insists on being the sole provider of information to friends and family
  • Does not permit the respondent to be interviewed alone
  • Changes the respondent's providers to his/her own personal providers (e.g., physicians, dentist, accountants, bankers)
  • Has financial problems (e.g., tax issues, bankruptcy) or personal problems (e.g., illness, divorce, a family member with a disabling accident or illness)

Possible "Red Flags"

The Respondent:

  • Requires a different living situation, either more protected or less protected

The Guardian/Conservator:

Financial /Accounting Irregularities

  • Does not pay the bills or pays them late or irregularly
  • Does not furnish/pay for clothing for the respondent residing in a nursing home or assisted living facility
  • Does not arrange for application for Medicaid when needed for skilled nursing home payment
  • Has a lifestyle that seems more affluent than before the guardianship/conservatorship
  • Fails to renew a bond or has a bond revoked
  • Has large expenditures in the accounting not appropriate to the respondent's lifestyle or setting
  • Includes questionable entries in accountings:
    • Utilities charges when the respondent is not living in the home or the home is empty
    • Television sets or other items are in the accounting but are not present in the respondent's home
    • Numerous checks are written for cash
    • Guardian/conservator reimburses self repeatedly without explanations
    • Automobile is purchased but the respondent cannot drive or use the vehicle
    • Use of ATM without court authorization
    • Gaps and missing entries for expected income (e.g., pensions, Social Security, rental income)
    • No entries for expected expenses (e.g., health insurance, property insurance)

    Compliance/Quality of Care Issues

    • Does not cooperate with health or social service providers and is reluctant to spend money on the respondent
    • Is not forthcoming about the services the respondent can afford or says the person cannot afford services when that is not the case
    • Does not file court documents, including accountings, on time
    • Is providing questionable quality of care
    • Is the subject of repeated complaints from family members, neighbors, friends, or the respondent
    • Is not visiting or actively overseeing the care of the respondent.

    The "red flags" associated with financial and accounting matters can be more readily identified than those associated with quality of care issues. While accountings can be scrutinized by a cadre of volunteers or staff with some financial background, health care issues and the potential for abuse and neglect require home visits and more intensive monitoring efforts. Monitoring resources in most courts remain insufficient to identify and craft appropriate responses to "red flags."

    Resources