By Becky Bongiovanni, Brand President of CarePatrol

If you’re like me, you’ve had a little extra time to devote to binge-watching TV and movies on streaming services, which led me to a very interesting movie on Netflix. As a professional in the senior care space for more than 30 years, the trailer of “I Care a Lot” instantly drew me in.

I won’t give you any spoilers on this 2021 thriller, but the plot follows Marla Grayson (Rosamund Pike), a career con artist who manages the following:

1. Bribes a physician to declare an older adult unable to care for themselves.
2. Convinces the state legal system court to grant her guardianship/conservatorship over the older adult by using the doctor’s testimony.
3. Removes the adult from their own home and places them in an assisted living community where she can control visitation, thus isolating them from their own family.
4. Sells the older adult’s home and assets, deciding how much to pay herself after the sale and how much to use to pay for the older adult’s care.

But, can this financial elder abuse really happen, or is it all just Hollywood drama? The truth is a little more nuanced than that.

What Is an Adult Guardian or Conservator?

First, let’s define the terms. Conservatorship and adult guardianship mean the same thing. States use one name or the other.

An adult guardian/conservator is appointed through a state court order after the person files a petition in the proper court and appears in front of a judge to establish the potential ward’s incapacity and/or disability, according to Ken LaMance at LegalMatch. Many states have specific requirements for potential guardians/conservators, but generally, they:

• Must be a legal adult (18+).
• Cannot have a felony or gross misdemeanor record implicating dishonesty (forgery, bribery, etc.).
• Cannot have disabilities themselves.

The court will take the ward’s wishes into account if they are able to express those wishes. If they cannot, the court will look at documents signed before they became incapacitated such as a durable power of attorney or will. Now, if those documents do not exist, then the court will appoint a family member such as a spouse, adult child, sibling, etc.

What Power Do They Have?

An adult guardian/conservator’s rights and responsibilities may include:

• Accessing the ward’s confidential records and/or papers
• Admitting the ward to a hospital or institution such as an assisted living community
• Arranging and consenting to travel plans
• Making living arrangements for the ward
• Gifting the ward’s money or property to other
• Initiating, defending or settling lawsuits
• Lending or borrowing money
• Making a will for the ward
• Managing or possessing the ward’s property or income
• Paying or collecting debts
• Refusing or consenting to medical procedures

Adult guardians/conservators have a lot of power to influence an older adult’s life, and this role is essential for those who cannot safely direct their own affairs. However, it is frightening to consider that someone would use that responsibility for their own gain.

“The idea first came when I heard news stories about these predatory legal guardians who were exploiting this legal loophole and exploiting the vulnerability in the system to take advantage of older people, basically stripping them of their life and assets to fill their own pockets,” J Blakeson, the writer and director behind the film, said in a recent interview with Esquire.

In a report by The New Yorker, Rudy and Rennie North of Las Vegas had this very thing happen to them. According to the article, April Parks, the owner of the company A Private Professional Guardian, came with an order from the Clark County Family Court to remove them from their home. While they did have a home caregiver providing some assistance, they did not require full-time assistance according to the Norths’ adult daughter who often visited and was aware of their care needs. In a 10-minute court hearing, Parks became the Norths’ permanent guardian, much to the horror of their daughter.

A study published by the American Bar Association found that “an unknown number of adults languish under guardianship” when they no longer need it or never did. The authors wrote, “Guardianship generally is plenary and permanent, leaving no way out – ‘until death do us part’ but often far harder to undo than a marriage.”

So, can this financial elder abuse really happen, or is it all just Hollywood drama? The reality is that financial exploitation of the elderly can happen, however, families can prevent this form of elder abuse.

How to Protect Yourself and Your Loved Ones

It’s vital to know the law in your state pertaining to guardianship and powers of attorney. Educating yourself and careful planning can ensure decisions affecting your older loved one’s care and assets are made with their best interests in mind. So, let’s go over some terminology.

A power of attorney (POA) authorizes another person to handle certain matters, such as finances or health care. When used for advance planning, a POA generally is “durable,” meaning it continues to be effective even if the person creating it becomes incapacitated, according to the Consumer Financial Protection Bureau (CFPB).

A financial power of attorney allows for an authorized individual to oversee financial affairs versus a medical (healthcare) power of attorney that allows medical decisions to be made on behalf of an individual in the event they are incapacitated and unable to express their preferences regarding medical treatment. It is not required that the same individual be identified as both financial and medical POA, and these are typically created in separate legal documents and are known as advance directives.

Documenting a loved one’s wishesfor medical treatment and end-of-life care is made through what can be known as a “living will,” “medical directive,” “health care proxy,” or “advance health care directive.” This legally defines and communicates their wishes to family, friends, and health care professionals and avoids confusion at a future date when they are unable to express their informed consent.

Creating powers of attorney and identifying trusted individuals while a loved one has the mental capacity to do so can certainly prevent the need for a conservator or guardian in the event they become incapacitated.

No one thinks they will end up in a situation where they are unable to make decisions for themselves, however, it is important to prepare should this be the case. Take time in advance to discuss and document your loved one’s wishes and communicate them to the appropriate people including the designated POAs, physicians, and family members.

If you think you know someone who is being abused or neglected, you can contact your local Adult Protective Services. http://www.napsa-now.org/get-help/help-in-your-area/. Another great resource is The National Association to Stop Guardian Abuse https://stopguardianabuse.org/. They work to protect the rights of older adults and support families battling court-appointed “protectors” who violate the law in the form of isolation and physical & mental abuse.

If you or your loved one is facing a change in care needs, CarePatrol will identify safe and appropriate care and housing options including home care, assisted living, memory care, or respite care. The service of CarePatrol is at no cost to the senior or their family and helps ease the stress of what can be a challenging time. Although Netflix is promoting a movie on financial elder abuse, I am encouraged by the thousands of truly caring professionals who serve and advocate for seniors every day including the specialists at CarePatrol. And perhaps this is a wake-up call for us all to review our own “advance directives” and those of our aging loved ones.

Contact your local CarePatrol Senior Advisor today.