I Care A Lot is a recently released film which follows a court appointed guardian in the USA who seizes the assets of elderly people for her own self-interest. Ms Marla Grayson, played by Rosamud Pike, makes a living convincing the courts to grant her guardianship over elderly people, who she pretends cannot take care of themselves. She places the elderly in assisted living facilities, sells their homes and pockets the proceeds, only for her to get mixed up with a dangerous gangster.
In the US, a legal guardian is someone who has the legal authority to care for the personal and property interest of another person, referred to as a Ward. Guardians are typically appointed in four different circumstances: an adult has become incapacitated (normally due to age or health issues), the person is a minor, the person is developmentally disabled or the person is found to be incompetent.
Whilst the film is clearly dramatized, there are several recorded cases of abuses in guardianships in the US. A report published in 2010 by the US Government Accountability Office looked at 20 closed cases in which guardians stole or otherwise improperly obtained assets from clients. In 6 of these cases, the courts failed to adequately screen guardians ahead of their appointments and appointed individuals with criminal convictions or significant financial problems. In the remaining 12 cases, the court failed to oversee guardians once they have been appointed. Furthermore, in 2018, an investigative documentary called, “The Guardians” was published alleging “legal kidnapping of elderly people” in Nevada by a private guardianship business, who were seeking to economically profit from senior savings.
Comparatively in the UK, we only have guardians in family cases involving children. If an adult lacks mental capacity, someone can be appointed to manage their health and welfare and/or property and affairs via deputyship or lasting power of attorney.
A deputy is some appointed by the Court of Protection to manage the property and affairs and/or health and welfare of a person who lacks capacity to do it themselves. A deputy can be a family member or friend, or alternatively a professional such as a lawyer if found suitable. If someone would like to be appointed to act as deputy on someone’s behalf who lacks capacity, they can make an application to the Court of Protection. In most cases, the court will consider the application based on the documents, and decide whether it is appropriate for that person to be appointed as a deputy for an incapacitated adult. In complex cases, involving large estates or large amounts of money the court may prefer to appoint a professional deputy. Deputies are supervised by the Office of the Public Guardian (OPG) and the deputy must send a yearly report to the OPG explaining what financial decisions they have made, and account for the money they have spent.
Alternatively, if the adult does not currently lack capacity but anticipates that they may do in the future, e.g. they have been recently diagnosed with a health condition, a Lasting Power of Attorney (LPA) can be granted to look after their own personal, financial or business affairs. An LPA can be made online, by completing the forms made available on the Gov.uk website. LPAs cannot be created once the person has lost capacity, as it is essential to the process that the person has capacity at the time to grant the power of attorney to another individual. The LPA system is administered by the OPG, whose main role is in the protection of people who lack mental capacity. When there are suspicions that an attorney may not be acting in the person’s best interest, the OPG will carry out an investigation, and if they decide that formal action is required then the matter will be referred to the Court of Protection.
Posted on Monday, 8th March 2021