S.J. Quinney College of Law

by Natasha Naylor

Vulnerable adults are at increased risk of abuse, neglect, and exploitation by their caregivers.[1] Adult guardianship systems are used to protect incapacitated adults from these ills.  However, being placed under guardianship does not eliminate the risk of abuse.[2] In fact, research suggests that the risk of abuse increases when defenseless adults are stripped of their legal rights and decision-making capacity.  2^{,[3],[4],[5],[6]}  In addition, any lack of court oversight and accountability can “make the guardianship system primed for further, abuse, neglect, and exploitation.” [7]

One factor that courts can control is identifying signs that increase the risk of the guardian acting in illicit and unprofessional manner.  Criminal and financial background checks assist in identifying adults whose history or current situation make them unsuitable guardian candidates.[8] Yet, not all states vet potential guardians. ^6,7,[9]  In examining thirty-two guardianship systems, I found that only twenty four states required some type of background report. Most of the states that conduct background checks require potential guardians to report their criminal history. [10] Other states require official background checks of public and professional guardians and in limited occasions familial caretakers as well.¹⁰ Credit checks are a rarity. ^8,10  When they are needed credit checks are primarily self-report disclosures that require the petitioner to report on their financial malfeasance or bankruptcy claims not their credit history.¹⁰ In general, courts do not investigate the veracity of petitioner’s reports.[11]

Another way courts screen potential guardians is by requiring professional guardians to obtain National or State Certification or Licensure or attend training programs. Guardianship certification or licensure for professional guardians are required by some states. ⁸ The Government Accountability Office in 2010 created two fictitious professional guardian applicants to determine the ease of obtaining guardianship certification.⁸ The GAO investigators used fake driver’s licenses, social security numbers, and educational and occupational information when applying for certification and passed both the National Guardian Exam and the North Carolina state certification test.⁸ The investigators also completed the guardian training program for New York. The certification organization did not require applications to provide their social security number.⁸ The social security numbers of the investigators were tied to 1) a decedent and 2) an individual who was $30,000 in debt with a credit history of 528.⁸ The national and state certification programs failed to investigate the veracity of the applicant’s report, check their fingerprints, or conduct background checks on the applications. ⁸ Proctors for the national examination did not realize that the investigators had provided them with bogus driver licenses. ⁸ After they had passed the test, the investigators’ fake names were published on the national examination’s website as nationally certified guardians. ⁸The applicants were also able to register with the New York Office of Court Administration after receiving a certificate of attendance from mandatory guardianship training. ⁸ No identification was required for taking the class, and the Office of the Courts did not conduct criminal or credit checks. ⁸ Instead the courts relied on the petitioners to disclose this unfavorable information. ⁸

Not all courts are aware of the devastating cost failing to screen potential guardians has on legal wards. There are a variety of reasons courts are blind to these abuses. First, courts may not believe these horrible abuses occur because they are not aware that they occur in their state.⁹ This happens for sever reasons. Wards are often unable to communicate problems they experience because of their physical or mental disability.  Additionally, some states like Utah have avoided scandalous headlines, research studies and official investigations that have revealed problems within the system. ^7,9  Secondly, states may rely on national and state certification/licensure or training programs to screen out unsuitable guardian. Lastly, some courts guardianship decisions are made from a parens patriae framework. For example, Utah courts rely on the good intention of petitioners, who are usually relatives, ^{7,9,[12],[13],[14],} to act in the best interest of their family member. ⁹

However, these reasons do not excuse courts from failing to screening potential guardians. It is well established that abuse, neglect, and exploitation occur in the guardianship system. ^2,6,7,9 and “there is no reason to believe that guardians/conservators are less prone to abuse or fraud than those in other states whose malfeasance and negligence has been discovered.” ⁹ Probate courts examining guardianship petitions are in the best position to screen potential guardians as they are able to verify the petitioner’s claims. They should not rely on stated good intentions of prospective guardians. Even the most well-intentioned petitioners are susceptible to misconduct when certain risk factors are present.  Certification, licensure, and training programs should be used to meet specific training and licensure requirements for guardians and not as the sole vetting process. Without implementation and utilization of effective screening measures placing incapacitated adults under guardianship will not protect them from abuse, neglect, and exploitation.

Natasha Naylor, is the Postdoctoral Research Fellow in Autism, Social Science, and the Law at S.J. Quinney College of Law. Natasha received her J.D. from the University Of Utah in 2012. Prior to law school Natasha attended Texas Tech University where she obtained a B.A. in Psychology and a minor in Addictive Disorders and Recovery Studies. As a postdoctoral research fellow, Natasha’s focus is on developing an empirical understanding of the social and legal needs of adults with autism. The fellowship allows Natasha to work with a multi-disciplinary team of mentors in order to create projects directed at different social and legal issues.   Currently, she is conducting research on adult guardianship procedures in Utah. 

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