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The perils of guardianship for adults

In guardianship cases, the court often allows the guardian to sell the ward’s home, and its contents, thereby causing the ward to be without a home and possessions. That is exactly what happened in the case of Ginger Franklin, a 50-year-old Nashville, Tenn. resident, who suffered a fall down the stairs of her townhouse in 2008. As a result of the fall, she was diagnosed with a serious brain injury. Doctors were unsure whether she would live.

Because Franklin did not appoint anyone to make decisions for her in the event she became incapacitated, and she had no immediate family, her aunt was encouraged to petition the court for a guardian. The county appointed a lawyer as her guardian, and the lawyer placed her in a group home for severely mentally disabled adults. However, Franklin did not suffer from mental illness, and unexpectedly recovered. Upon her return home from a rehabilitation center seven weeks later, the guardian informed her that she no longer had a home, and that her townhouse was empty.

She was placed in a group home, the owners of which forced her to work with no compensation. In addition, Franklin paid $850 per month for rent to the owners as well as attorneys’ fees in the amount of $200 per hour to the guardian for carrying out such duties as writing checks for Franklin’s expenses and leaving voicemail messages.

Fortunately, with the assistance of an advocate and attention from the media, Franklin opposed the guardianship in court, and obtained her freedom in 2010. She currently lives independently and has filed suit against the guardian.

Regrettably, this is just one of several cases of abuse of guardianships and conservatorships throughout the nation. According to a 2010 report by the U.S. Government Accountability Office (GAO), there were hundreds of accusations of physical abuse, neglect and financial exploitation by guardians in 45 states and the District of Columbia from 1990 to 2010.

Guardians are often granted extensive authority over a ward’s finances, medical care and living conditions. Guardianship differs from a power of attorney in that it is created by a judge and can only be set aside by the court. Older adults can be deprived of their most fundamental rights — including a right to a court hearing, ability to vote, marry or divorce — with the use of just one document.

It is rare that a ward or incapacitated person can achieve termination of a guardianship or conservatorship, except at death. The person is unable to hire an attorney because a judge has already ruled that the person lacks the capacity to make decisions. Those who attempt to oppose the guardianship frequently pay outrageous amounts of money or go bankrupt.

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