The Advantages and Pitfalls of “Professional Guardians”

July 27th, 2018 by David Goldfarb

When you think of a guardian of an incapacitated adult, you likely first think of an adult child or another close family member who will care for the adult. However, in some cases, a guardian may be a non-relative appointed by the courts. In many states, these are referred to as “professional guardians.”

While New York does not have “professional guardians” in the traditional sense, there are individuals who are on the court’s list and repeatedly appointed as guardians by the courts, as well as non-profit guardianship providers. New York City, in particular, has a higher percentage of non-profit guardians appointed than other counties throughout the state. Professional guardians can be beneficial to people who do not have family members or close friends who are able or willing to step into the role.

There has been much in the news in recent months, however, about the dangers of professional guardians. The New Yorker reported the story of one couple in Nevada who became wards of a professional guardian, who then moved them into a nursing home, sold their property, and actively tried to earn profits while providing substandard care. John Oliver also addressed the risks of professional guardians and how they can take advantage of wards, who then lose almost everything.

Professional guardians are often given access to the financial accounts of their wards. They can then charge the wards for their services—including for something as small as making a phone call or getting the mail. This opens the door for financial elder abuse and unethical—or illegal—behavior.

Guardians owe wards a fiduciary duty, which is the highest possible legal duty. If a guardian misuses finances, overpays themselves, or makes other poor decisions, the ward’s family should discuss the matter with an attorney, as the fiduciary duty was likely breached. The problem in many scenarios is that a professional guardian was likely appointed because the ward has little or no family involved. In addition, an incapacitated ward cannot bring a legal action.

Fortunately, courts require guardians to file detailed statements regarding the finances of wards. Courts should carefully review these statements to determine whether any unlawful, unethical, or abusive behavior has occurred. Courts have hefty dockets, however, so adequate attention is not always paid to the details of these records and abuse is not uncovered.

When it comes to choosing a guardian for a family member, always carefully examine credentials and references. You should examine the possible motives of guardians—are they looking to simply make money or are they part of an organization that is truly dedicated to caring for the elderly?

If you need assistance choosing a guardian or believe that a loved one has suffered abuse or unnecessary losses due to a guardian, do not hesitate to call our elder law attorneys for assistance.

Discuss Your Situation with a New York Elder Law Attorney

The law firm of Goldfarb Abrandt & Salzman LLP assists clients with a variety of matters, including guardianship, health care and estate planning, and elder abuse cases. Call (212) 387-8400 or contact us online for more information about our legal services today.

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