A stranger knocks on the door. The older woman who answers the door is informed that the visitor is now her legal guardian and will make all decisions for her. Within days, the older woman has been placed in a nursing home and her home sold so that the stranger may profit.
It’s a perfect opening for a psychological thriller. In fact, it is the opening for Netflix’s new featured movie “I Care a Lot,” starring Rosamund Pike as Marla, a ruthlessly ambitious woman who has made a business out of exploiting older adults. Her method: petitioning a local court to appoint her as emergency guardian for older adults whom she alleges cannot make decisions for themselves.
Unfortunately, the plot of “I Care a Lot” — despite its share of plot twists and theatrics — is not as far-fetched as it might seem. Every state allows courts to appoint a third party (called a “guardian” or “conservator”) to make decisions for someone the court determines is at risk because they lack the ability to make decisions for themselves. The process can provide needed protection to those who are unable to care for themselves. Yet it also has real costs. Not only do individuals for whom guardians are appointed lose the right to make some or nearly all decisions for themselves, but reports of unscrupulous guardians using the system to exploit vulnerable adults are far too common.
This exploitation is made possible, in part, by outdated state laws. Take Marla’s first “trick:” petitioning for a guardianship without telling her elderly mark. State guardianship laws permit courts to appoint “emergency guardians” without notice to either the person alleged to need a guardian or family or friends who might come to their defense. Even when state laws say that individuals are entitled to notice before a guardian is appointed, courts can (and do) waive giving that notice. And long-term guardians are also routinely appointed without the subject of the proceeding being present in court.
Marla’s next trick is also generally legal: immediately placing her victim in a nursing home and selling her house. In most states, such moves are considered routine matters and guardians do not need separate court approval for such life-changing decisions — even though investigations (including high-profile ones in Florida and Nevada) have documented abuse similar to that perpetrated by Marla.
Finally, take Marla’s not-so-secret weapon: getting the court that is supposed to oversee her to ignore clear evidence of her wrongdoing. Failure of courts to adequately monitor guardians is a long-standing and chronic problem in guardianship systems — leaving those under guardianship at risk.
Fortunately, states can reform their laws to prevent the abuses depicted in “I Care a Lot”. In fact, the Uniform Law Commission has already created model legislation — the “Uniform Guardianship Conservatorship and Other Protective Arrangements Act” — to help states do just that. As the chair and reporter (principal drafter) for the committee that drafted this model legislation, we are confident that its adoption could substantially curb abusive guardianship practices.
The act bars courts (absent extraordinarily limited circumstances) from imposing guardianships over a person who was not present at the court proceeding. If the person cannot come to court, the court must go to the person — even if that means holding court in the individual’s hospital room. The act also limits the ability of guardians to make major decisions — such as selling a person’s home, placing them in a nursing home or blocking visitors — without explicit court permission. In addition, it contains a variety of provisions that would substantially enhance court monitoring of guardians. And it gives family and friends new ways to keep tabs on guardians and bring problems to the attention of the court and others who could help.
In 2018, the U.S. Senate Special Committee on Aging issued a report urging every state to adopt the model act. Only two — Washington and Maine — have so far. Instead, state legislatures typically ignore the issue or pursue piecemeal reforms. Guardianship just hasn’t been a “hot issue” politically — and those who seek to reform guardianship law have faced opposition from cash-strapped courts and attorneys who have grown (perhaps too) comfortable with the status quo.
I Care a Lot may just be the push state legislatures need to adopt the reforms needed so that stories like those depicted in it are relegated to the realm of fiction.
Nina A. Kohn is the David M. Levy professor of law at Syracuse University and the Solomon Center Distinguished Scholar in Elder Law at Yale Law School. She served as reporter for the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act and has testified on guardianship abuse before the U.S. Senate Special Committee on Aging. Find her on twitter @ninakohn.
David M. English is the W.F. Fratcher professor of law at the University of Missouri and the former chair of the American Bar Association’s Commission on Law and Aging. He served as chair of the drafting committee for the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act.