Written by: Ashley K. Roof, Esq.

In 2017, more than 2.68 million people reported being a victim of identity theft with Elders often finding themselves as top targets. Many, but not all, of those elderly victims are targeted because of declined cognitive abilities associated with dementia. On the other hand, elders may be targeted due to the perception that elders have saved throughout their lives and now have a nest egg to help them through retirement.

Whatever the catalyst for the identity theft, Guardianship, voluntary or involuntary, can aid in either preventing or putting a stop to elder identity theft.

Voluntary Guardianship

On occasion an elder who still maintains their mental faculties may become the victim of identity theft, whether due to coercion by another individual, through becoming the victim of a scam, or outright theft of important information, such as bank account numbers. In this particular situation, a Voluntary Guardianship may be the best option. Unlike an involuntary guardianship, a voluntary guardianship occurs without a finding of incapacity, and upon the petition of the person seeking a guardianship for himself or herself.

A voluntary guardianship occurs when a mentally competent adult wants additional assistance with their own assets due to age or physical infirmity. In a voluntary guardianship, the guardian’s authority is limited to the financial affairs of the property over which they have control. The elder determines which assets are under the control of the voluntary guardian and the elder also chooses who he/she wants to act as the voluntary guardian. The guardian cannot make medical or residential decision for the elder. On the same token, an elder may make the decision to terminate the voluntary guardianship via court filing.

The person requesting a voluntary guardianship for himself or herself may petition the court for a guardian of some or all of their property. Along with the petition, the petitioner must submit documentation from a physician certifying that the petitioner, the person requesting the guardianship over himself or herself, has been examined and the he or she is competent to understand the nature of the rights they are giving up through the guardianship petition. Once the guardianship is ordered, the guardian that the elder chooses begins to manage the assets with court oversight.

Involuntary Guardianship

In opposition to the voluntary Guardianship, an involuntary guardianship requires the elder to be deemed mental incapacitated by the court. The first step towards a determination of incapacity is for any person to file a petition with the court determining another person’s incapacity. The petition must contain factual information supporting the belief the person is incapacitated.

The court will then appoint three people to serve as the examining committee. Each examining committee member will then submit a report to the court with their findings and, if the person is found to be incapacitated, a suggestion of either a Plenary Guardianship or a Limited Guardianship. Once a person has been deemed incapacitated, they become what is known as a Ward.

A guardian who is given authority over property of the ward will then inventory the Ward’s property, and ensure it is used solely for the Ward’s benefit. To ensure this is taking place, an annual accounting must be filed with the court each year, detailing each transaction involving the Ward’s assets and property.

Regardless of which method is to be used, determined by the circumstances of each situation, Guardianship may be the necessity to ensure an elder’s financial safety.

The Elder Law Center of Kirson & Fuller is experienced in not only assisting with the guardianship process, but also advising on the best course of action to ensure any identity theft or financial exploitation is halted. If you are considering a guardianship, or are concerned about identity theft, please ensure you contact an experienced elder law attorney.