February 23, 2021
by Cari Herrington
Let me first preface this post by saying that we have had the privilege of working with some superb guardians. They take their profession and their responsibilities seriously and work tirelessly in the interests of their wards. They are organized and detailed and thorough. As with leaders in any industry, they are committed to their profession and are interested in the elevation of the standards of the industry. They give their lives to care for the most vulnerable in our population, people who have no family or friends and have lost the capacity to care for themselves. If there is still family involved, they often work with the family and are open to their involvement and suggestions. Many of their wards do not have money, and the guardians give their own time and money to care for those people. These guardians deserve a round of applause and more recognition than they get. They are unsung heroes of the elder care industry. They don’t ask for or get much attention. It’s not glamorous work. For these guardians, it has been a privilege to work for you in your service to your wards. Please consider giving to the Guardianship Office of the Tenth Circuit to support their work for people who need professional guardians but have no money.
But on to the main stage, my review and discussion of the movie I Care a Lot. Let’s also go ahead and clarify this will not be a real movie review. I work in senior care, so I’m going to address those topics, not the acting, the cinematography, or the Russian mafia.
I Care a Lot is a critical commentary on the institution and risks of guardianship. The main character is a corrupt guardian that intentionally targets wealthy older people to be her wards and manipulates then into guardianship even when it is not necessary. She has a partnership with a doctor who “determines” the patient is incapacitated and at risk, which triggers an emergency guardianship hearing. The main character is well known and respected in the court system, so she’s appointed guardian. The guardian also has a partnership with the administrator of the facility where she moves her wards. The facility ensures the newly incapacitated ward has no contact with the outside world and therefore cannot seek help to fight what is happening to them. The guardian controls the whole process, the assessment, the treatment and then has control of the ward’s entire life. This does trivialize the process of guardianship a bit. In real life, emergency temporary guardianships are just that, temporary. In order for it to become a permanent guardianship, there are further hearings and evaluations by court appointed professionals. But for the sake of argument, all these parties could be corrupt or mislead and this is manufactured guardianship is a feasible scenario.
Before we go further, what exactly is guardianship? Guardianship of an adult (there is also guardianship of minors, but I will not get into that) occurs when a person has been deemed unable to make their own decisions, so the court appoints someone to make those decisions on their behalf. The appointed guardian can be a professional guardian (a person who does this as their job) or a personal acquaintance who volunteers, typically a family member or close friend. There are different levels of guardianship depending on the person’s capacity, giving the guardian different authorities, and the process can be voluntary or involuntary from the perspective of the ward. Guardianship is intended to be a last resort, with other advance directives (Durable Power of Attorney, Healthcare Surrogate, etc.) taking precedence if they are in existence. The problem, and need for guardianship, arises when people do not set up their advance directives, they do not appoint their own decision makers, and then lose capacity before doing so.
Here’s an example. Let’s say a person develops dementia and has no advance directives. After a certain point in the disease process, they can no longer execute new legal documents because attorneys cannot ethically draw up documents for someone without capacity. So, if they didn’t make their decisions already, it’s suddenly too late to decide. Eventually someone will notice concerning changes in their functional status and decision making abilities and become worried about the person with dementia. If there’s no family to reach out to, they call the authorities (typically police, which leads to Adult Protective Services). Now the State is involved, and if they determine the person with dementia cannot make decisions to care for themselves, it’s the responsibility of the State to find someone who will, so the person with dementia is not left to fend for themselves. There is a process to determine capacity and when needed, a guardian is appointed. In this hypothetical, and common, scenario, there is a clear need and the guardian serves a great purpose. Just to clarify, this is not the only path to guardianship. There can be family involved, but no advance directives. There can be advance directives that are contested. Perhaps the person appointed in the advance directive has already passed away or cannot serve. The reality is that some people have a real need for a guardian. But others do not. Which brings us back to I Care a Lot.
The guardian manipulates the situation to get a wealthy ward and limits her access to the outside world so she can’t refute the decisions. Now the guardian liquidates all her assets. Can she do that? Yes. Well, depending on the type of guardianship, but in this case, yes. They can manage/buy/sell property, make business decisions, sell valuables, cash out assets. They assume the ward’s legal responsibilities, which now means the ward cannot make their own legal decisions, like voting, marrying, buying property, starting a business, entering into any contractual agreement, etc. In the movie, the guardian sells heirloom furniture, antique cars, jewelry, and more. Her rationale and defense of her actions is that she needs to pay for her ward’s care, and she needs to get paid herself. On this topic, I’ll admit, it might feel weird that guardians pay themselves to care for their wards, but it is their job. As a fellow senior care service provider, I can attest to the fact that it is a job and sometimes there is no one else to do it. They can genuinely care and still deserve to get paid for their work. Within reason of course, and in the movie, it appears she’s paying herself exorbitantly. I’ll also point out that guardians have to submit their finances to the court. They have to show and defend what expenses they have incurred on behalf of their ward, including their own service costs. In fact, some expenses, like their own invoices and some major transactions, have to be approved by the court before they are paid.
It’s a lot of responsibility, so who exactly are the people doing this? There can be family appointed as a guardian, or a professional can be appointed by the Court or selected by family. As I said at the beginning, there are a lot of genuine, knowledgeable, caring, professionals that work as guardians. But, as in any industry, there are also people whose motives may not be so pure. We’ve have been fortunate enough not to experience true malice in a guardian, but we have experienced a guardian moving a ward closer to the guardian, even though it took the ward further away from their known community and relationships and it clearly wasn’t in the best interests of the client. Even if their motives aren’t overtly malicious, they may not be the most knowledgeable or experienced in the field of elder care. Becoming a professional guardian requires a 40-hour training course and passing an exam, background checks, a credit report, bonding and maybe further requirements based on local Court rules. There is no degree requirement or work experience requirement. I’ve heard guardians say things like “I wanted something to do after I retired” or “I just wanted to help the elderly somehow.” Those are not bad motives by any means, but if someone is managing your whole life, making basically all your choices for you, you probably want it to be someone who knows the healthcare and senior care industries, knows what your options are, and is taking it more seriously than a hobby.
It’s my opinion that some people become wards and receive a guardian when they do not need it, as in this movie (even if it’s not that flagrant). Sometimes people presume guardianship is inevitable just because someone doesn’t have family. But they can still appoint a Durable Power of Attorney (DPOA) and the DPOA can make choices on their behalf if they lose capacity. Other times guardianship happens by mistake. Some situations are very convoluted and it’s hard to find the truth of the matter. Is everyone really telling the truth? What exactly contributes to a person’s capacity? Are those factors permanent or temporary? Is there a Durable Power of Attorney in existence? Is that person willing to serve? Is there a backup or alternate selected? Obviously, these are the things that the Courts are trying to determine; they do not take guardianship lightly. They are working to do their due diligence, but they are also spread thin and cannot always exhaust every option before guardianship. I think guardianship happens sometimes when it is not necessary, which can be a real tragedy for the person, now a ward of the State. Think about being in that situation, having a stranger now control your life. Hopefully that person invests time and energy into getting to know you, to understanding what’s important to you, but what if they don’t? You can appeal for a change of guardian, but if we’re talking about people who really need guardians, they probably don’t have the capacity to pursue that endeavor.
At the end of the movie, the guardian gets in bed (figuratively) with the Russian mafia. They start a series of businesses that feed into each other: facilities, pharmacies, home health agencies, caregivers, etc. Let me just say, THIS HAPPENS ALL THE TIME! In our own community it exists, and it exists all over the country. I’m sure it exists in your community. Facilities are owned by the same parent company that owns the pharmacy that they use, or their preferred in-house provider of home health therapies. Placement agencies have contracts with facilities, they literally get paid to put people in those facilities. It’s a smart business move, for sure, but how can they hold each other accountable if they’re all in bed together? And how can you be sure they’re making the best choice for the client/ward/patient/resident and not just feeding the machine?
To me, the moral of the story is simply ethics. ETHICS ETHICS ETHICS ETHICS ETHICS. We harp on it all the time for our own staff. Is that ethical? Where does your moral compass point, and why? Are you prioritizing the client, the family, colleagues, or yourself? Ethics is probably the single most important thing for a guardian, the same as most professions that deal with someone’s life. As this movie demonstrates, there can be knowledgeable and experienced guardians that are not acting in the best interests of their ward. No matter how novice, an ethical guardian still serves their ward better. If they are acting ethically, mistakes may still be made, but the guardian will not be passive about it. They will work to fix it and make the ward’s life better.
What can really be done about all of this? Be prepared. Don’t procrastinate. Meet with an attorney and put together your advance directives. And don’t just appoint people, talk to those people about why you chose them and what you want for your life. Draw up a life plan with different scenarios. What if your body fails you? What if your mind does? Do you want to stay home, for how long? If you can’t, where do you want to go? What if all your family is gone, do you want to stay in your community? What do you want to happen to all your assets and heirlooms? What medical interventions are acceptable, when do you want to transition to palliative care? All of these things can be addressed with advance directives: Durable Power of Attorney, Living Will, Health Care Surrogate, Last Will & Testament, and/or Trusts.
Should you or a loved one experience guardianship, ask questions of your guardian. How long have they done this? What experience or education do they have? Do they have references? If they are professionals and take their job seriously, these are reasonable questions they will be happy to answer. There are excellent guardians out there, people who will do their best to take care of their wards, going to whatever lengths they can. But the reality is it’s a relatively easy profession to join that bequeaths a lot of authority, which opens the door to exploitation. So be aware, be prepared, and ask questions.
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