Adult Guardianships, Conservatorships, and Financial Exploitation
What is a Guardianship?
In Kentucky, guardianship is a legal relationship between a court-appointed adult (known as the “Guardian” or “Limited Guardian” and a “Ward.” A ward is a person who has been declared legally disabled by the court and is no longer able to care for their personal and/or financial needs.
A guardian may be a friend or family member willing to care for the disabled individual. Normally there is a long-held relationship of trust between the assigned guardian and the ward who needs help. Perhaps you or another family member have served as a guardian and have some knowledge of the process already.
What is a Conservatorship?
Those with financial authority only are known as the “Conservators” or “Limited Conservators.” Conservatorships occur when an individual needs help managing all or some of their financial affairs. A court must determine that the individual meets the criteria and a conservator is then appointed to assist with financial matters. This can include the authority to sell property, sign checks, access bank accounts, and manage other important financial aspects of a person's life.
Because of the wide-ranging powers a conservator can hold over the ward's finances, conservatorships should only be used when necessary. In situations where mental illness or cognitive issues leave a person more likely to hurt themselves than help themselves financially, a conservatorship may be appropriate.
Signs of Financial Abuse in a Conservatorship or Guardianship
Sadly, a conservatorship or guardianship is sometimes used to exploit or control someone who's vulnerable. While this is rare and a the presiding judge is able to intervene, exploitation can happen. Easy access for a conservator to a wide range of financial tools opens the door for bad actors to prey on others. Signs of financial abuse can include:
- Suspicious bank account withdrawals or transfers
- Unpaid bills (when funds should have been available to pay them)
- Bounced checks and declined payments
- New changes to the person's will or estate plan
Guardianship or conservatorship abuse can also include emotional abuse and neglect, manipulation, and even physical abuse. Outward changes in a person's behavior can indicate something is wrong, often in tandem with unusual financial transactions.
Conservatorship abuse gained national attention with the Britney Spears conservatorship saga in 2021. The Britney Spears case highlighted the extent to which even a high-functioning individual can become trapped, subject to the whims of those running the conservatorship.
Financial abuse occurs frequently nationwide but the overall number of guardianships and conservatorships involving financial abuse has been hard to track, according to the United States Department of Justice. The guardians that are caught mismanaging funds – if they are caught – tend to be charged with theft, embezzlement, money laundering, abuse or neglect.
In December 2021, Kentucky State Rep. Patti Minter introduced the CARE Act – “Conservatorship Advocacy to Remove Exploitation,” – to reform guardianships and conservatorships in Kentucky. Her stated goal is to prevent the abuse or exploitation of Kentucky residents placed under conservatorships. The proposed legislation seeks to make it easier for individuals to modify or terminate guardianships and conservatorships, and to keep in touch with their families. This bill will be considered in 2022, and may update the way conservatorships are administered in Kentucky.
So, How Do I Protect Myself or a Family Member?
Prevention is key. Have a detailed estate plan in place before a guardianship or conservatorship comes into play, and know who you can trust to act in those roles if needed. This will give you and your family some peace of mind and can also serve as a useful resource in the event that the courts become involved.
Contact Darpel Elder Law for a Consultation
Regardless of where you are in the process, meeting with an experienced attorney with knowledge of these issues is one of the best moves you can make. Contact Darpel Elder Law today to schedule a comprehensive consultation and discuss your options. Call our office at (859) 341-4100, or visit our website at www.darpelelderlaw.com.