Lauren Sherman, LCSW, CCM, NMG
Headline: Ex-appointed guardian admits exploiting wards of the court https://lasvegassun.com/news/2018/nov/05/ex-appointed-guardian-admits-exploiting-wards-of-t
Headline: Jury hits lawyers with $16.4M for doing senior wrong in guardianship https://www.palmbeachpost.com/news/jury-hits-lawyers-with-for-doing-senior-wrong-guardianship/6CnikAZ7x3K9z960lz09BN/
Breaches of ethics in guardianship are not always as deliberate or flagrant as these headlines might suggest. Sometimes, the breach is subtle and inadvertent. Practitioners can get themselves in trouble by rushing forward without court approval or using loose systems that open the door to questions about ethics.
Following are some tips to help eliminate risk and maintain high standards of practice for guardians and those who otherwise serve vulnerable individuals:
Be Vigilant About Conflicts of Interest
As guardian of person or estate, it’s important to maintain arms-length professional relationships. There can be no exchange of commissions or other rewards for referrals to other vendors (i.e. caregiver companies, realtors, etc.) and the guardian should not refer to businesses in which they or a family member or friend hold a financial interest.
In any instance where the guardian is to procure other services for an individual in their care, every effort must be made to obtain the best value for the dollars being spent. It is also imperative that court approval be secured for significant expenditures.
Be Cautious About the Sale or Disposal of Personal Property
It is often necessary to liquidate personal property when an individual under a guardian’s care will no longer be living in the community and needs additional funds to pay for care. For the protection of all concerned, though, it is vital to confirm the following before personal property is sold or donated:
- An inventory of personal property has been developed and distributed to surviving family/heirs, as permitted by the court;
- All bequests to family members have been located and secured, pending distribution;
- The family has been afforded the right of first refusal where heirlooms are concerned, as permitted by the court;
- Items of potential value have been professionally appraised;
- The court’s approval for the liquidation of property has been secured.
Also important is the use of a two-person protocol prior to and during the development of a personal property inventory. If valuable items the family believes to be in the home do not appear on the inventory, accusations of theft could result. Such allegations are less likely if no one is in the home unaccompanied until after documentation of personal property has been done.
Make Sure ALL Bills are Paid
When a guardian takes over the task of paying an individual’s bills, it’s critical to ensure all of the bills are paid. It’s easy to overlook expenses of a non-recurring nature, or which are due infrequently. Guardians should confirm that taxes have been paid, along with homeowners’ association dues, health insurance premiums, and mortgage payments. Not all vendors send paper bills so it’s important to proactively learn about an individual’s expenses and not just intercept the mail.
It is also critically important to be fully aware of all assets. Some financial vehicles do not send statements. Past tax returns can reveal sources of income and interest from previously unknown accounts.
Be Fastidious About Financial Transactions and Gifts
All financial transactions carried out on behalf of another individual should be documented. Use of cash to pay bills causes gaps in the “paper trail” and can create the appearance of fraud or theft. Guardians should maintain client’s funds separately and should never comingle assets or borrow funds for any reason.
Gifting is another area where a guardian can get in trouble. Making gifts on behalf of an individual requires court approval. Any gifts should be entirely consistent with the client’s past gifting behavior (i.e. gifts to family members for the holidays). Gifts should not be given to service providers, such as caregivers or charities, without express approval from the court.
Be mindful of how things look. Donations to a judge’s election campaign, for example, could appear to be attempts to buy influence.
Be Neutral in Family Disputes
Becoming embroiled in family disputes can cause a guardian to lose objectivity. It is important to treat family members fairly and equally and to communicate with all of them in a consistent manner. Refrain from making judgments about who is “good” and “bad”. Unless there is suspicion of exploitation or abuse, all family members of the family should be able to visit the individual with disabilities.
Seek approval from the judge if circumstances may warrant limitations on, or denial of, family visits. Supervised visits may be a better alternative than outright denial, but this determination will be made by the court.
Supervise Service Providers and Get a Fair Price
A guardian is accountable for the performance of service providers hired to offer care, and for the client’s budget. Care needs change and it’s essential to have an updated care plan and services that meet the client’s current needs. Be prepared to report to the court on the appropriateness of the care the client is receiving and seek the court’s approval if the client is to be relocated from home to facility or from one facility to another.
Periodically check pricing to be assured the client is receiving care at competitive rates. A wealthy client may be able to afford expensive services but should never pay above-market prices just because the money is there.
Consider Restoration When the Client Improves
Many individuals under guardianship are contending with progressive and irreversible impairments, making them very unlikely candidates for restoration. Clients whose impairments may stem from stroke, brain injury, psychiatric illness or addiction can, however, show tremendous improvement over time. In instances like this, it is incumbent upon the guardian to weigh the possibility of limiting the guardianship or terminating it altogether.
It is the duty of a guardian to strive for the least restrictive status for the client. A client need not be completely independent for restoration to be considered. If the person can make decisions and identify/use available resources when guidance is necessary, a petition for restoration should be considered.
The issues and questions a guardian might encounter can be as unique as the individuals they protect. The National Guardianship Association has developed Standards of Practice to assist guardians with ethical and practical questions. https://www.guardianship.org/standards/.
When in doubt, seek the counsel of the attorney representing your practice in each matter and/or allow the court to review the issue and make a decision.
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