Judd Matsunaga, Esq.
Perhaps you have seen the 2020 American film on Netflix called “I Care a Lot.” At the 2021 Golden Globes in February, Rosamond Pike won best actress in a motion picture — comedy or musical for her role in the movie. Pike stars as Marla Grayson, a ruthless con artist who swindles money from the elderly after she deceives judges to appoint her as their “legal guardian.”
One of the major tenets of the concept of guardianship is “trust.” I am sure that there are many guardians who work tirelessly in the best interests of their charges. Most people assume the role of a guardian for good reason (like caring for a parent), but there are also many cases where victims (largely senior citizens) were subjected to physical abuse, financial theft and neglect.
“I Care a Lot” reveals America’s negligent treatment of its senior citizens from the loopholes in America’s guardianship system. The film exposes how America’s flawed legal guardian system can be manipulated for profit and power. A Guardianship is also called a Conservatorship in California.
J. Blakeson, the movie’s writer-director, said in a 2020 interview, “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” (source: Cosmopolitan, March 2, 2021).
To Blakeson, these stories were “horrifying” but “not uncommon.” So, while the film is not based on any one specific true story, it’s true to life in the fact that there are lots of these predatory guardians who do pray on vulnerable and elderly people and sort of entrap them in these guardianships and basically sort of strip their life apart.
“Marla Grayson is a fictional character, but people like her do exist,” said Blakeson. In fact, in a 2010 report called “Guardianships: Cases of Financial Exploitation, Neglect and Abuse of Seniors,” the U.S. Government Accountability Office identified over 150 reported victims where guardians stole $5.4 million in assets from their wards between 1990 and 2010.
The American Bar Assn. published the statement that “an unknown number of adults languish under guardianship” even if they no longer have the need for someone to make decisions for them (or never did). The ABA study also asserted the guardianship situation is typically permanent, leaving few ways out for the adults under care.
Guardians require a high level of oversight, but there is very little data on whether adequate oversight is occurring because the courts typically don’t keep track when guardians are found to financially abuse their wards. Thus, unscrupulous court-appointed guardians can more easily slip through the cracks and continue to abuse the system and their wards’ assets.
According to an article in Forbes (July 29, 2019), the United States Senate Special Committee on Aging undertook a study of the problem. In a nutshell, their conclusions included:
- Once guardianship is imposed, there are few safeguards in place to protect the wards from abuse, neglect and exploitation.
- There is a lack of education for everyone involved as to what constitutes appropriate guardianship behavior and responsibilities.
- In the event the ward regains full capacity, there is no process for restoring their rights, and restoration rarely occurs, leaving them tethered to the guardian.
The craziest part of this is that many of those seniors had loving and caring family members, who were unable to protect their senior family members. Seniors without children are particularly vulnerable to this kind of gross abuse of power because there is no clear and obvious guardian for them if and when they lose capacity to care for themselves and make good decisions.
That’s why it is especially important for seniors to have a power-of-attorney for health care, and a power-of-attorney for finances “just in case.” Without one, judges may favor these professional guardians, who are paid for their services straight from the elderly person’s assets. In some cases, the elderly person is treated poorly as their hard-earned savings accounts are being drained by a guardian they never wanted in the first place.
Pamela Teaster, director of the Center for Gerontology at Virginia Tech and one of the few scholars in the country who studies guardianship, told the New Yorker that the guardianship system is “a morass, a total mess.”
She said, “It is unconscionable that we don’t have any data, when you think about the vast power given to a guardian. It is one of society’s most drastic interventions.” (“How the Elderly Lose Their Rights,” Oct. 2, 2017)
The most important thing is not to wait. Many seniors resist planning for incapacity, thinking they’re “strong and healthy.” However, things can happen to us at any age, and the likelihood of a serious illness or accident increases the older we get. Stroke, dementia, accident, execute the POAs before you suddenly need it. Because after the accident, the stroke or the fall, it might be too late.
As you mentally survey the landscape in your own network of family and friends, finding the right person (and one or two backups) is only the first step. Next comes the conversations with them. It isn’t fair to anyone concerned to name people and not discuss it with them. Plus, you or your loved one are far more likely to receive the treatment you would have chosen if your wishes are well communicated and understood by all.
Judd Matsunaga is the founding attorney of Elder Law Services of California, a law firm that specializes in Medi-Cal Planning, Estate Planning and Probate. He can be contacted at (310) 348-2995 or judd@elderlawcalifornia.com. The opinions expressed in this article are the author’s own and do not necessarily reflect the view of the Pacific Citizen or constitute legal or tax advice and should not be treated as such.
