John Oliver Takes Aim at Guardianships with Comedy, Almost-Correct Assertions
Written by Jacque Mingle
It’s not every day that our line of work is featured on a national comedic news show, and when it does, we tend to notice.
Comedian John Oliver, in his HBO show Last Week Tonight, this month sought to bring awareness to the national problem of guardianships. Bogutz & Gordon, you may know, serves as guardian, helps people petition for guardianships, and helps people plan to avoid them.
Oliver’s 15-minute bit, much of which consists of jokes not relevant to the topic at all (hippos as killing machines?), is more fun than you’d expect (though a bit raunchy) given the topic, thanks mostly to appearances from Hollywood veterans Rita Moreno (86), Fred Willard (78), Lily Tomlin (76), Cloris Leachman (92!), and William Shatner (86).
Oliver’s bottom-line message (delivered comically by the veterans) is completely correct: You can avoid guardianship by executing health care and financial powers of attorney that nominate the person you would like to handle your affairs if you become unable to. You can even nominate that person to serve as guardian, if one is ever needed. (We’d recommend listing at least one back-up, too, in case your first choice isn’t available.) There is no question: Every adult in America should do this.
Tomlin is right when she says “name someone you trust,” but the script goes a bit wrong when it assumes a “son, daughter, or close friend” would be the best choice. The fact is, there are many, many people who do not have children or close friends they wish to take care of them, whether it’s because family and friends can’t be trusted or because they would rather not burden either family members or friends with that job.
But we’re getting ahead of ourselves; the topic of the segment was guardianship, and Oliver’s point is that they can easily go bad and there should be more oversight. Oliver is right to be concerned; as he points out, the number of people over age 65 is going to skyrocket from 49 million today to more than 80 million by 2040. He says about 1.3 million adults are under guardianship now, and more and more Americans are going to find themselves unable to handle their own affairs in the coming years.
Guardianship can be an “important, valuable tool,” he notes, and he’s right. Anyone can file a petition in a court stating that someone needs help and ask that someone be appointed to take care of the incapacitated person’s finances and living arrangements. In Arizona, those roles are Conservator for the finances (sometimes called Guardian of the Estate in other jurisdictions) and Guardian for everything else.
Oliver points to cases in Las Vegas and Phoenix to illustrate how the process can go wrong. (What process involving money can’t?) In the Vegas case, a couple says “officers of the court” showed up at their door and gave them three choices: call the police, go to a psychiatric ward, or go to an assisted-living facility. Oliver says the couple, unbeknownst to them, were forced to move by a court-appointed guardian who was appointed by a judge neither of them ever met. They fought back. When the legal battle concluded two years later, most of their money was gone.
Oliver also objects to the fact that guardians can bill for each individual service, “from voicemail to opening mail.” He then points to a couple of seemingly outrageous guardian errors. One of them: sending a woman and her caregiver to a Phoenix Sun’s game in a limo with a total bill of $1,027.00. (May not be outrageous; it depends on how much money she has.) Another: billing adding up to more than 100 hours in a day. (Hmm, hard to imagine, but it could happen if many staffers were working on a time-sensitive matter.) Another: storing cremains in a storage locker. (If there’s no family, they have to go somewhere.)
The guardian responsible for the last two admitted the errors, but she had bigger problems; she’s now facing trial on perjury, racketeering, theft, and exploitation charges. Oliver found a couple of questionable charges and one apparently truly bad apple.
That said, the issues with that guardian would be unlikely to go on for years in Arizona, as they did in Nevada. Guardianships and Conservatorships are governed by each individual state’s laws and regulations. In Arizona, we have more process and procedure than many other states do, including 1) the subject of the petition must be personally notified of the proceeding; 2) that person gets an attorney to express their point of view, which includes objecting to either the guardianship itself or the person asking to be appointed; and 3) an investigator is assigned to the case to give an independent report to the court. After a Guardian or Conservator is appointed, he or she must report back to the court every year. Conservators must account to the court on a yearly basis for every penny spent.
Further, Arizona is one of only 12 states that require professional guardians to obtain training and obtain a license, known as fiduciary license. (The others are California, Oregon, Washington, Nevada, Utah, Texas, Florida, North Dakota, Illinois, and New Hampshire.)
Oliver also points to a federal Government Accountability Office (GAO) study that found states don’t require criminal background checks or credit checks for those who wish to serve in these roles professionally. In Arizona, every applicant for a fiduciary license must attest that he or she has not been convicted of a felony or found civilly liable for “fraud, misrepresentation, material omission, misappropriation, theft, or conversion” — basically any action involving theft or honesty. The state also maintains fiduciary auditing and discipline procedures to ensure those licensed are adhering to a very specific code of conduct spelled out in lengthy statutes and regulations.
Still, the Pima County court personnel probably wouldn’t argue with Oliver’s assessment that courts could use more resources to monitor existing Guardianships and Conservatorships; Pima County has only one court accountant charged with reviewing not just Conservatorship accountings but also those for estates and any others a judge might require.
Even with strict regulations and court oversight, the fact remains that Guardians and Conservators do have a huge amount of power – and responsibility. They do make financial, health-care, and living arrangement decisions for their clients. They do have access to bank accounts and health records. And most of them work tirelessly to help their clients live their lives as comfortably as possible in the least restrictive settings.
But, if you don’t want to end up under Guardian or Conservatorship, then, as Fred Willard says in the segment, you should “start planning for the future now” and take steps to plan for incapacity so that you don’t end up in a situation you do not want.
As the segment further advises: Have honest conversations with family, tell them how you want your person and your finances to be taken care of. Then take concrete legal steps to name someone to look after you and your affairs.
It can be someone you know and trust, and if that’s a son, daughter, or close friend, great. But if you don’t want or have that, it can be a professional fiduciary, someone neutral, with experience in both managing assets and managing health care, so your family can stay your family. If you don’t chose, the state may end up choosing for you. It’s up to you.