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When court appointed guardians highlight issues with elder law

Many families choose to establish a guardianship to protect vulnerable individuals who are no longer able to care for themselves. Guardianships can help keep a minor child, aging adult, disabled loved one or incapacitated adult safe from abuse. A guardian can be appointed to manage another individual’s financial and health care matters.

Unfortunately, issues can and do arise when guardianships are established. Let’s take a look at some of those potential issues.

Guardianship system is flawed

Issues with the system, which don’t just affect seniors but people with medical conditions, mental illness and more include:

  • Unscrupulous judges, attorneys and state administrators who use estates to make money without really caring for their wards.
  • Guardians pay themselves with their ward’s money. Conflict of interest is high.
  • No oversight – guardianships are awarded with little to no input by the ward or family.
  • Little to no recourse to remove the guardianship when evidence suggests it is no longer required (for example, a person recovers from the illness).
  • Family members not considered as suitable guardianship candidates are blocked or restricted from seeing the ward to which they are related.

Michigan families torn apart by court decisions

Mila Kapusta’s 90-year old parents need around-the-clock care. Kapusta planned to provide the care but got into an altercation with her sister, whom she suspected of abuse. When she applied to the probate court to be her parent’s guardian, she was surprised when the court chose to assign a stranger.

Since then, her parents make routine calls to 911, are not getting the care they need and fall more frequently. Kapusta’s attorney says the courts are using the conflict in families as an excuse to appoint outside guardians. However, no one follows up to see that the guardian is even doing their job.

In another case, Jayne Collins’ mother was assigned a guardian. Collins claims her mother didn’t receive any money between April and Labor Day last year. Her mother has slight memory issues but is articulate and capable. Meanwhile, the guardian is paying themselves for work they claim they do on behalf of the ward.

The Elder Abuse Protections and Prosecutions Act was signed into law in October 2017. It seeks to provide more resources and power to the justice department to investigate these issues. Time will tell if the situation improves

Guardianship and conservatorship are complex issues, especially within families where conflict exists. It is important to consult an attorney who focuses in this area and can handle long-term care and estate planning long before health issues become acute.

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