Understanding Adult Guardianship - A Candid Conversation With Pamela Wilson

Have you seen the movie I Care A Lot on Prime? I did, quite a disturbing film so much so as a person who is getting closer to my 60's I thought about what happens if I am not able to make decisions for myself and what happens to my family i.e. my wife and other interested family members if I am made a ward.

This movie really did draw attention to the matter of elder abuse and fraud in the system mostly in the US but, I am sure here in Canada. So I reached out to experts in this area and am glad to welcome Advocate, and former Guardian Pamela Wilson to talk about what it is and is not fact re the subject of guardian law.

Pamela welcome to Candid Conversations. I know this is not the most fun topic but it is important and I am very please have you here to discuss this rather prickly topic.

Pam w.: Cliff, thank you. The movie and guardianship is a confusing topic for many reasons.

Cliff T.: Did you see the movie, and if so what was your reaction to it from yourself and other providers and guardians?

Pam w.: I did see the movie. My first reaction was that it is a movie intended to sensationalize and frighten viewers about guardianship. Some people I know were disturbed by the film, and others angry about the court's power over people for whom a guardian is appointed.

Cliff T.: Did you experience any kind of backlash against guardianship due to this film?

Pam w.: I did not. However, there are reputable and caring guardians, just as there as neglectful and abusive guardians. It is important to understand that not all guardians are professionals like the actress portrayed in the film. Many guardians are family members: husbands, wives, sons, or daughters.

Cliff T.: Pamela is it really that easy to gain guardianship of an adult?

Pam w. :No. The film did not accurately portray the petitioning process for a court hearing nor the substantiation necessary to deem an individual incompetent. Additionally, the ward (the woman for whom the guardian was appointed) was not allowed to hire an attorney and appear in court to disagree with the guardianship appointment. Court procedures exist for all guardianship hearings. Depending on the state, here in the United States, the term may be guardian or conservator of the person. So many of the legal aspects of appointing a guardian and the court process are not portrayed in the movie.

Cliff T.: Do the laws differ state to state, or are they pretty much the same when it comes to becoming a guardian and managing the affairs of the ward?

Pam w.: The laws do differ by state. As I mentioned, the terminology can be different as well as the powers granted to the guardian. However, generally, least restrictive means apply. Least restrictive means supporting an individual to be as independent as possible for as long as possible in all aspects of life. Not taking over a person's life as the actress did in the film.

For example, the actress showed up at the woman's home, presented her with legal papers, and immediately moved her out of her home and sold the home and her property. There was no effort by the guardian in the movie to prove that the woman could not live independently or with less restrictive means. Meaning the support of in-home caregivers. It was clear that financial means existed to pay for this type of care. Separately, a provision can be placed in a guardian order, stating a person cannot be moved from the home without first petitioning and gaining approval from the court.

Cliff T.: In this movie the guardian is allowed to and proceeds to seize and sell property and essentially isolate the elders in her care going so far as to have them drugged and confiscating cell phones is that a thing? And what can a guardian do and not do in general?

Pam w.: Cliff, thank you for asking this question. Guardianship or conservatorship grant broad and far-reaching powers, which is why this movie is controversial. Any individual appointed as a guardian who has poor intentions or no experience with the legal responsibilities plus who has no oversight—meaning no one watching over the guardian's actions—can do great harm.

In most situations where the ward's home is sold, an experienced professional guardian will petition the court for approval. Additionally, an inventory of all assets is reported to the court as well as how funds are spent. So the diamonds portrayed in the movie would have been disclosed.

On the topic of drugging a person and denying access to communicate with family and friends this was also misleading. Guardians do have control over medical decision making that includes medications. An inexperienced guardian can certainly do harm by making bad medical decisions—this can happen in any situation where a person needs care. Most care communities, especially nursing homes have regulations that regularly review medications that can be harmful for the elderly and support discontinuing these medications.

With respect to denying visitation, professional guardianship guidelines support contact with family. This is an area where there is a lot of concern and news in the press about celebrities has brought positive attention to the issue. One celebrity daughter, Catherine Falk, has been an advocate for the rights of family visitation in guardianship cases. The Peter Falk law was passed years ago and many of the states in the U.S. have adopted their own versions of the law.

Cliff T.: We know that there is a need for guardians, adults lose capacity this happens, what is the best way to deal with this reality? Pamela, when should a guardianship be considered? And should it be done via a professional like yourself or via family?

Pam w.: Cliff, this is a topic that we could talk about this for hours. I have an online webinar course How to Get Guardianship of a Parent that discusses the difference between being an agent under a medical power of attorney versus a guardian, when or why guardianship is necessary, and the court process.

I will answer from the perspective of being proactive to avoid the events occurring in the movie. Discussions about legal responsibilities to make decisions about health and money should happen long before individuals need care. Persons wishing to direct their healthcare and money management—when they can no longer manage this themselves—can initiate legal documents to appoint an agent under a medical or financial power of attorney to act for them. The document can stipulate that the agent is to be appointed as the guardian or conservator if this becomes necessary.

The critical factor is for the principal (the person appointing the agent) to have full faith that the agent has the experience and knowledge to act as the principal desires or would have done for him or herself. This gap in trust—or lack of creating legal documents before a diagnosis of mental incapacity—is the reason that professional guardians are appointed instead of family members. In some cases, there may be no family or any personal contacts willing to accept the responsibility and a professional is appointed.

Cliff T.: I would say that there are lots of truths and falsehoods regarding guardianship, can you give us a top 5 what is true and what is not true re guardianship?

Pam w.: My apologies, this is not a question that I can answer without going into lengthy explanations. I will be doing your audience a disservice—much like the movie—if I give brief responses. Let me answer from two perspectives that address the controversy about this film.

The first is that because guardianship and conservatorship are serious legal responsibilities, obtaining these powers requires a court process with a great deal of documentation and substantiation for the need for a guardian of the elderly. Judges, attorneys, guardians, and care communities are not in collusion like the movie depicts to take away the rights of the elderly.

Second, family members watching this film with experience with adult protective services or the court system may find the movie offering valid concerns about how powerless individuals or families can feel when guardianship petitions are submitted to the court. A common question asked by caregivers is can adult protective services put my parent into a nursing home?

If elder abuse or self-neglect exists—because an elderly person cannot take care of him or herself or lacks mental capacity to make good decisions about health—and family is not willing or able to provide care—then adult protective services or the police may become involved. A guardianship petition may be submitted to the court to protect and move an older adult into a situation where care is provided.

My personal experience with these situations is that family members lack the experience to notice when a parent has Alzheimer's or dementia and may need care. Add to this not wanting to argue or disagree with a parent who denies needing help. These family situations can become very conflictive and adult children or a spouse may feel powerless and not know what to do. This can be when a neighbor makes a report to the county about neglect and adult protectives services or the police become involved. Family members can feel this involvement to be intrusive or over reaching.

Cliff T.: Pamela you were a guardian for quite some time. What do you want to say to people who may be looking into this, how would you prepare families to deal with this so the risk of something going wrong is not high?

Pam w.: Talking about the potential need for care before care is needed is the way to be prepared for eventually needing care. Discussions about aging, needing care, or dying are uncomfortable. Caregiving most often happens because of an emergency like a hip fracture or another health issue. Then families are scrambling, trying to figure out what to do.

Dealing with the legal, healthcare and financial systems can be intimidating. All are involved when care is needed. Consulting with an eldercare expert or a care manager can give families the knowledge and confidence they need to become advocates and manage care situations.

Cliff T.: How did you get involved in this line of work and what was it like to be a guardian?

Pam w.: I became involved in this specialty area because of family experience and a sincere desire to help older adults. I enjoyed being a guardian because of the positive effect I had on the lives of my clients, many of whom had no one devoted to their care. It is important for anyone considering this role to know that it is a serious legal responsibility. I was available 24/7 to respond to unexpected events and to make life and death decisions. Being a guardian is not for everyone. It can be time-consuming and emotionally draining for many family members.

Cliff T.: I bet you met some very interesting people along the way, what did you enjoy about doing this work and what are you doing now to help people who need care and those providing care?

Pam w: My gift in doing this work is being a problem-solver. Because I have been working in this area for over twenty years, I have a breadth of experience with the industry—working with hospitals, nursing homes, home health, hospice, palliative care, the legal system, financial planners and others—that is valuable to family members and aging adults to help them plan and manage care. I am a caregiver subject matter expert who today seeks to educate family caregivers, and companies and groups who have a desire to offer their employees and members information and education about caregiving and aging.

Cliff T.: There is so much information on this subject. What resources can you provide to help people understand how this works and what they can do to help themselves and loved ones?

Pam w.: On the topic of guardianship specifically, each state in the United States has probate divisions at the county level. This is one place to begin and seek information. Consulting with a professional guardian can offer additional insights into the responsibilities of being a guardian or a conservator. Elder law, probate, or estate planning attorneys are also good contacts to understand the legal process of guardianship that is missing from the film.

Then additionally, my website, PamelaDWilson.com. Consumers will find my caregiving library, caregiver blog, my weekly podcast called The Caring Generation, my book The Caregiving Trap: Solutions for Life’s Unexpected changes, online courses about taking care of elderly parents and guardianship and the ability to schedule an eldercare consultation with me. Additionally, my YouTube channel also features hundreds of videos about caregiving and aging.

Cliff T.: Pamela thank you for giving some insights on this topic. It's greatly appreciated.

Pam w.: Cliff, it’s been my pleasure. I hope I was able to alleviate concerns by anyone watching the movie I Care A Lot that the information portrayed in the movie is fiction—not fact. My recommendation is that when in doubt always seek information to become more educated rather than being swayed by information in a movie or in the press.

Pamela Wilson MS, BS/BA, CSA, NCG Caregiving & Health Expert, Advocate and Speaker. Her site, https://pameladwilson.com/, is a great place to visit with a great deal of knowledge about the topic of caregiving and related topics. Her website listed above has a lot of good information on the subject. Pamela wrote to us from somewhere in Colorado.

NOTE: We are not saying that I Care A Lot is a bad movie, but it is fiction with a lot of factors and facts not entered into the mix. I recommend that if you watch the movie you watch with a skeptical view. Ask questions and seek legal and medical advice before making any decisions regarding elder care.