Fighting Financial Exploitation of the Elderly Through Guardianship

Post authored by Jesse Footlik

Part 2 of a Series

As discussed in Part 1 of this series, millions of seniors fall victim to financial exploitation each year.  Without a substitute decision-maker or an Agent acting in their best interest, seniors with diminished capacity have little recourse.  Temporary guardianship can provide swift relief and prevent further harm in dire circumstances, such as when Grandpa’s funds are rapidly depleted or when the title to Grandma’s bank account or home is changed.  As a result, temporary guardians help elder law attorneys and their clients thwart financial exploitation.

A temporary guardianship is a form of guardianship implemented after showing the need for the “immediate welfare and protection of the alleged person with a disability or his or her estate . . . .”  755 ILCS 5/11a-4.  The immediate welfare and protection of individuals or their estate are “of paramount concern.” Id. Typically, there must be an actual emergency or other exigent circumstances that warrant appointing a temporary guardian, which is expedited.  These showings are necessary because the alleged person with a disability does not receive notice or service of process about the hearing and appointment of a temporary guardian.  The alleged person with a disability is not given the same rights during a temporary guardianship proceeding he or she would otherwise have under the statute for a plenary guardianship hearing.  Accordingly, Illinois guardianship courts require that the personal or financial harm to the alleged person with a disability is already occurring or imminent.

In practice, when filing the case, the petitioner must first, or contemporaneously, file a petition for plenary guardianship along with the petition for temporary guardianship.  Of course, the temporary guardianship petition will be heard and adjudicated much sooner than the plenary petition.  Elder law attorneys and their clients can obtain a court date for the temporary guardianship hearing three to five days after filing the petition.  A hearing could even be held within a day if the circumstances are dire.  The judge will not require compliance with the notice requirements under a regular guardianship if such notice would undermine the urgent need for relief or risk further harm to the individual.  The court will then appoint a Guardian Ad Litem (“GAL”) to meet the alleged person with a disability and report their findings and recommendations.

When the need for a temporary guardian is estate-related, such as in the case of financial exploitation, the court will hear the petition and other information offered by the petitioner.  The court may request–or the petitioning party may want to provide to the GAL–documents or communications evidencing the exploitation.  For example, this may include copies of statements or checks showing the transactions or depletion of funds at issue, emails or social media messages between the exploiter and victim, and other records.  At the hearing, the court will also hear from the GAL.  Almost always, the court will ask to see a physician’s report prepared pursuant to 755 ILCS 5/11a-9 before appointing a temporary guardian.  If the report cannot be obtained in time for the hearing–due to potential isolation of the victim–the petitioner can file a motion for an independent medical examination. The petitioner should also be prepared to present evidence and/or affidavits regarding the individual’s inability to make financial decisions.

To combat financial exploitation, the court may give the temporary guardian of the estate various powers and authority over some or all of the individual’s assets.  Per statute, the Court Order appointing the temporary guardian of the estate must specify the limited powers and duties of the temporary guardian, and state the actual harm requiring temporary guardianship.  The powers may include the ability to freeze assets or otherwise “flag” the individual’s bank accounts or credit.  This could also include limiting the individual’s access to a certain amount of money, so the risk of loss is minimal, or otherwise restricting access to accounts.  If alleged exploiters are known, they can be prevented from visiting or communicating with the alleged victim.  Restrictions on visitation and communication can be authorized by the court, when appropriate.  Measures can also be authorized and implemented to monitor the individual’s phone calls, emails, and social media use, if necessary.  Again, such measures must be for the “immediate welfare and protection” of the alleged person with a disability and depend on the underlying circumstances.  Essentially, the guardianship court has broad discretion to authorize necessary action in order to stop the harm and prevent further damage to individuals or their estate.

The safeguards put in place through temporary guardianship proceedings are, as the name suggests, temporary.  They are intended to last until a regular guardian is appointed.  In fact, a temporary guardianship will expire within 60 days after a temporary guardian is appointed or a regular guardian is appointed, whichever occurs first.  755 ILCS 5/11a-4.  However, the statute allows for extensions under certain circumstances.

Seniors are often the most frequent targets for financial exploitation due to their susceptibility. Guardianship–including temporary guardianship–can be a very effective and accessible method to combat the financial exploitation of those who suffer from diminished capacity or other cognitive impairments.  Safeguards can be implemented and utilized to minimize further harm.  Temporary guardianship is especially useful when non-judicial options fail, proceed at a snail’s pace, or are unavailable.  In addition, recovery proceedings can be initiated in a guardianship, which occurs once a plenary guardian is appointed.  Part 3 of this series will cover the appointment of a plenary guardian and the recovery process.

About the Author:

Jesse FootlikJesse Footlik is a partner with the law firm of Peck Ritchey, LLC.  He concentrates his practice in the areas of trust, estate, and guardianship litigation and administration, with an emphasis on contested trusts and estates. He has extensive experience representing heirs, beneficiaries and fiduciaries (both individual and corporate). You can often find him on the 18th floor of the Daley Center in Cook County, litigating contested decedent’s estates and guardianship proceedings. He strives to be very active in the legal community and frequently lecture on various elder law topics. Prior to law school at Chicago-Kent College of Law, he graduated from the University of Michigan in Ann Arbor. 

 

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