LTC Bullet: Guardian Nightmare or How Heirs Rob the Elderly

Thursday, March 25, 2004


LTC Comment: What if your heirs decide to take an early inheritance in order to impoverish you, qualify you for Medicaid, and put you in a welfare-financed nursing home? More on the crisis in "guardianships" after the ***news.***

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LTC Comment: Should guardians be allowed to impoverish their wards to qualify them for Medicaid? Many elder law attorneys think so. They reason: Why should someone be denied the opportunity to qualify for publicly funded long-term care without spending down just because they are incompetent to sign their own legal papers? Besides, there is a bundle to be made in legal fees setting up guardianships and drafting Medicaid plans.

Hold on, though. Maybe it isn't such a good idea, after all. Medicaid is a means-tested public assistance program. It has a dismal reputation for problems of access, quality, reimbursement, discrimination, institutional bias, loss of independence, and welfare stigma. But those deficiencies are just the tip of the iceberg when it comes to guardianships.

Wait until you read The Retirement Nightmare: How to Save Yourself from Your Heirs and Protectors: Involuntary Conservatorships and Guardianships by Diane G. Armstrong, Ph.D., Prometheus Books, May 2000, 420 pages. Here's a summary of the book from Read it, and if you advise senior clients, warn them!


"Book Description

"After working hard to build your nest egg, you are finally making plans for your retirement years. But will you be free to make your own choices when those golden years finally arrive? Or will you fall victim to ruinously expensive involuntary conservatorship/guardianship proceedings and be stripped of your rights, your money, your independence -- for the rest of your life?

"In an ominous trend that threatens America's successfully aging population, state judges are imposing an increasing number of unwanted conservators and guardians upon allegedly incompetent men and women to manage their property and personal affairs. The results are grim. In New York alone, judges appointed over 32,000 guardianships during 1997, up from 15,000 in 1992, and Michigan's guardianship petitions have more than quadrupled since 1981.

"These little-known state laws were originally created to safeguard the rights of 'infants and lunatics.' TODAY, INVOLUNTARY CONSERVATORSHIP AND GUARDIANSHIP LAWS ARE BEING USED BY CALCULATING HEIRS TO SEIZE CONTROL OF THEIR PARENTS' ASSETS AND BY PROTECTORS IN THE SOCIAL WELFARE COMMUNITY TO CONTROL THE VULNERABLE ELDERLY THEMSELVES. [Emphasis added.] And who is 'elderly'? To be declared incompetent on the basis of age you only have to be 62.

"Drawing on sadly typical cases from courtrooms across America, Dr. Armstrong shows how competent elders can be victimized by arbitrary conservatorships and guardianships. She describes the historical roots of our codes and shows how they function in today's courts, highlighting concepts that are problematic and suggesting appropriate changes. Dr. Armstrong summarizes every state's conservatorship/guardianship statutes and provides contact numbers for national services, legal organizations, state offices of aging, and other resources for the elderly. Most importantly, her breakthrough book gives YOU the tools you will need to protect yourself or someone you love when your retirement years usher in the real threat of predatory litigation."


A recent example of the guardianship problem in New York:

"LTC Daily Analysis Briefs NY Grand Jury Calls for Reform of Legal Guardianship NEW YORK, NY -- 03/04/2004 -- (Eli Digital) New York's system for appointing guardians to handle the affairs of nursing home residents and other incapacitated people needs radical reform. That's the conclusion of a grand jury report filed this week in State Supreme Court, the New York Times reports. A grand jury in the New York borough of Queens heard evidence for eight months and concluded that judge-appointed guardians are poorly trained and inadequately supervised by court appointees. Among other things, the report found that basic financial reporting requirements are ignored and independent audits are rare, according to the paper. The report says the system 'has gone horribly wrong.'"

Source: SNFinfo Connection, March 4, 2004. To subscribe, go to .