National Center on Elder Abuse
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National Center on Elder Abuse
Home / Research / Research, Statistics and Data / Guardianship and Elder Mistreatment
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Guardianship and Elder Mistreatment
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Guardianship is a relationship created by state law in which a court gives one person or entity (the guardian) the duty and power to make personal and/or property decisions for another whom the court has found unable to make such decisions. Terms vary by state, but frequently a “guardian” makes personal and health care decisions, and a “conservator” makes financial decisions. In this summary, the generic term “guardianship” refers to both, unless otherwise indicated.
Guardians are appointed by the court to protect an at-risk individual, and often to prevent or address abuse. While many guardians act in the individual’s best interest, an unknown number take advantage of those they were named to protect -- making guardianship both a solution to and a source of elder abuse.104
Despite tragic media exposes, 105 the extent of guardianship abuse is unknown, as data is scant to nonexistent. Courts need data to monitor guardianship practice, and policymakers need data to target necessary improvements.
Most states lack even basic information on the number of adults subject to guardianship. Given insufficient state data, national figures have been estimates at best. In 1987, the Associated Press referenced “300,000 to 400,000 elderly people” under guardianship.106 In 2011, researcher from the National Center for State Courts (NCSC) calculated there may be 1.5 million adults subject to guardianship across the country,107 and in 2016, estimated 1.3 million open cases.108
There are significant challenges in collecting consistent court data, for example:
- State and local courts have different technology, databases, and definitions;
- Many courts lack funding for technology to track guardianship cases;
- There may not be a distinct field for adult guardianship data, separate from probate data or from minors;
- Data may be collected going forward, but older open cases are not included;
- Data may be collected on the number of filings, but not on the number of open cases, demographics, the number of limited orders and restorations of rights, or key monitoring events;
- There may be no data indicating abuse or exploitation, such as the number of removals of guardians for cause; and it is difficult to track use of less restrictive options used instead of guardianship.
Research on key guardianship data includes:
- A 2010 NCSC court survey finding that “quality data on adult guardianship filings and caseloads is generally lacking. The absence of accurate caseload measures is widespread.”109
- A 2010 Government Accountability Office (GAO) report concluding that GAO “could not determine whether allegations of abuse by guardians are widespread,’ but identified hundreds of allegations in 45 states and DC between 1990 and 2010;110
- A 2016 Government Accountability Office report111 concluding that “the extent of abuse by guardians nationally is unknown due to limited data on key factors related to elder abuse by a guardian.” The study profiled eight closed cases of guardianship abuse;
- A 2018 brief on conservatorship data quality112 by NCSC and research partners summarizing the status of guardianship data.; and
- A 2018 U.S. Senate Special Committee on Aging hearing and report113 that found “few states are able to report accurate or detailed guardianship data.”
Recent recommendations and resources have recognized and begun to address the compelling need for adult guardianship data:
- The 2013 National Probate Court Standards114 recommend that courts “collect and review meaningful caseload statistics including . . . the number of guardianships and conservatorships being monitored.”
- In 2012, the Minnesota Judicial Branch launched a Conservator Account Auditing Program (CAAP) to improve statewide oversight of court-appointed conservators and protect assets. Conservators file electronically, and CAAP auditors review accounts and present the results to the parties and district judges.115 The Minnesota model has been refined and expanded, and other states have sought to adapt it.
- In 2020 NCSC released a report116 on Guardianship/Conservatorship Monitoring: Recommended Data Elements, to provide guidance on consistent collection of data.
- The U.S. Administration for Community Living developed a National Adult Maltreatment Reporting System (NAMRS) as a national reporting system for Adult Protective Services that includes elements on abuse by surrogate decision-makers including guardians.117
104 Wood, E.(Fall 2012), The Paradox of Adult Guardianship: A Solution to – and a Source for – Elder Abuse, Generations, Vol. 36, No.3, 79 - 82
105 Aviv, R., How the Elderly Lose Their Rights , The New Yorker, October 9, 2017; Balch, B., Unguarded: A Three-Part Series on How Richmond’s Guardianship Process Leaves Vulnerable People Unprotected, Richmond Times Dispatch, November-December 2019, https://www.richmond.com/news/local/unguarded-a-three-part-series-on-how-richmond-s-guardianshipprocess-leaves-vulnerable-people-unprotected/article_d39e242e-9213-5600-8150-da9566c143b7.html ; Garland, S., Calls for Court Reform as Legal Guardians Abuse Older Adults , New York Times, July 28, 2017; Heild, C., Guardianship Firm Seized by Marshals , Albuquerque Journal, July 19, 2017; Oliver, J., Last Week Tonight , June 5, 2018
106 Bayles, F.& McCartney, S. (1987), Guardianship of the Elderly: An Ailing System, Associated Press, September 20, 1987
107 Uekert, B. & Van Duizend, R. (2011) “Adult Guardianship: A ‘Best Guess” National Estate and the Momentum for Reform,” National Center for State Courts, Future Trends in State Courts 2011.
108 Montgomery, L., (2016), State Court Leaders Strive to Improve Guardianship and Conservatorship Oversight, National Center for State Courts, Backgrounder
109 Uekert, B. (2010), Adult Guardianship Court Data and Issues: Results from an Online Survey, Conference of Chief Justices & Conference of State Court Administrators, National Center for State Courts
110 U.S. Government Accountability Office (2010),, Guardianship: Cases of Financial Exploitation, Neglect and Abuse of Seniors
111 U.S. Government Accountability Office (2016), The Extent of Abuse by Guardians is Unknown, but Some Measures Exist to Help Protect Older Adults
112 National Center for State Courts et al (2018), Data Quality Undermines Accountability in Conservatorship Cases, Background Brief No.7, A Series of Background Briefs on Conservator Exploitation
113 U.S. Senate Special Committee on Aging 92918), Ensuring Trust: Strengthening Sate Efforts to Overhaul the Guardianship Process and Protect Older Americans
114 Uekert, B. & Van Duizend, R. (2013), National Probate Court Standards, National College of Probate Judges, National Center for State Courts, Standard 2.4.2
115 Minnesota Judicial Branch, Conservator Account Auditing Program
116 National Center for State Courts (2020), Guardianship/Conservatorship Monitoring: Recommended Data Elements
117 U.S. Administration for Community Living, National Adult Maltreatment Reporting System
Last Modified: 02/28/2024