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Elder Mistreatment: Abuse, Neglect, and Exploitation in an Aging America
signed to a guardian can be abused to misappropriate the elder person’s assets. Periodic exposés have found guardians stealing funds from their wards. Although courts are ostensibly charged with this responsibility, their resources are often not sufficient to provide adequate ongoing investigation and monitoring of guardianships.
Also, the negative stigma associated with the establishment of a guardianship has made it an unattractive alternative for many elder persons and their families. One commentator wrote, “[t]o some seniors, the threat of being placed under guardianship is as terrifying as the threat of nursing home placement” (Nerenberg, 2000c). Advocates for the elderly have argued that the federal government should encourage the states to create less restrictive alternatives to guardianship and to educate those who are acting as guardians (AARP, 2001).
Limitations of Legal Interventions in General
Beauchamp (2001) argues that legal interventions to redress financial abuse of the elderly will inevitably be flawed and that no set of laws can be made perfect. In particular, he asserts an inherent tension between competing priorities that, on the one hand, seek to protect elder persons from people who desire to financially abuse them and, on the other hand, seek to respect the wishes of elder persons, which often include a desire to retain their independence. Also, he notes that the greater the level and extent of protections established, the greater the cost. He concludes the problem may not be a need to reform the law or to create new laws, but a need to enforce existing law. Furthermore, he contends, any approach will necessitate reliance on the good faith and efforts of the people assisting elder persons with their financial affairs, whether it be a family member, a fiduciary, or a judge, and there is little that laws can do to make people more caring or diligent in their duties.
Because investigating and proving financial abuse is often difficult and because perpetrators often spend or dissipate assets before abuse is discovered, preventive measures are the preferred means for addressing financial abuse of the elderly (Central California Legal Services, 2001).54 A number
Addressing elder abuse in general, a report of the U.S. General Accounting Office concluded that creating a high level of public and professional awareness of elder abuse was the most effective means for redressing elder abuse, more so than either mandatory or voluntary reporting laws (U.S. General Accounting Office, 1991).