Wendy Williams’ guardianship case highlights the need for reforms
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Wendy Williams’ guardianship case highlights the need for reforms
There have been a lot of questions about financial guardianships since the disclosure that former talk show host Wendy Williams has such a conservatorship in place.
Lifetime recently aired a four-part documentary called “Where Is Wendy Williams?” that highlights Williams’ health, family and financial struggles, including the appointment of a guardian over her finances.
Prior to the documentary’s launch, Williams’ care team announced that she has aphasia, a brain disorder that can affect a person’s ability to write and understand language, and frontotemporal dementia, another brain disorder that can lead to behavioral changes and loss of speech.
Experts who are not personally involved in Williams’ case told Marketplace that guardianships can help individuals who are unable to manage their finances, but that the system can be exploited, underscoring the need for reform.
How guardianships are set up
When someone reaches “the point of having diminished decision-making capacity,” there are important financial decisions to make, said Andrea Seielstad, a professor at the University of Dayton School of Law.
They’ll have to assess their financial resources, continue paying bills and look into retirement and long-term disability policies, among other life decisions, Seielstad said.
“If there isn’t somebody there to do it [for them], everything starts falling apart,” Seielstad added.
But the person who helps with those financial matters must have legal authority to do so, she explained.
“So it’s necessary because somebody has to stand in and protect them, and pay their bills, and keep their house over their head, or move them into a facility,” Seielstad said.
Laws vary by state, but all guardianships start with a petition filed in court, explained Nina Kohn, a professor at Syracuse University College of Law. A variety of people may file a petition.
”The idea is that anybody who is interested in the welfare of the individual can go to court to seek protection for the individual. That is often family members, but it might be others who are aware of a concern about the individual,” Kohn said.
Financial advisers or financial institutions with ties to the individual can also petition the court, Kohn noted.
In a best-case scenario, a judge would decide if the subject of the petition needs a guardian by taking a nuanced look into a broad range of factors, explained Sarah Lorr, an assistant professor at Brooklyn Law School in New York. Those include the person’s ability to take care of themselves, prepare food, purchase items, save money, create and maintain relationships.
But inquiries like that take a lot of work, so they aren’t the norm, Lorr said. Instead, the reality is that judges are influenced by medical labels and driven out of fear to “protect” the person subject to guardianship, she explained.
“I think some labels are much more likely to lead to unnecessary guardianships than others, or at least more immediate guardianships than others. So for example, intellectual and developmental disability,” Lorr said. “Anything that sort of impinges upon or suggests that there is an imposition on cognition I think really raises alarms for judges.”
Lorr added that judges are concerned about psychiatric diagnoses.
“Which is just so unfortunate, because obviously there’s a broad range of functioning in any individual with a diagnosis, and there’s so many different treatments and ways of living with a diagnosis,” Lorr said.
Who can be appointed guardian?
Another key concern is who gets appointed financial guardian. Kohn said family members typically become guardians because they’re often the petitioners.
“As a practical matter, that’s the person who’s in front of the court. That’s often a person saying, ‘Sign me up,’” she said.
Then there are professional guardians, which include attorneys, doctors and social workers.
“Professional guardians may be appropriate where there’s reasonable concern that families have engaged in exploitation, or there’s reasonable concern that potential family appointees wouldn’t be able to put the interests of the person before their own interests,” Kohn said.
Professional guardians may have relevant training and experience, such as financial management, that would be beneficial in a guardianship, Kohn added.
On the other hand, “there is concern that courts are too quick to appoint a professional guardian when there’s family conflict, and there’s legitimate concern nationally that sometimes judges and professional guardians have overly cozy relationships,” Kohn said.
Professional guardians are paid court-approved fees that are generally based on the time they spend performing their duties, Kohn said.
“Because many professional guardians are attorneys, you end up getting the attorneys’ hourly rate charged for services that don’t require an attorney to do them,” Kohn said. Family members often work as guardians without pay, but they can be eligible for fees just like professional guardians.
In cases involving high-net worth individuals, guardians may benefit from substantial fees, she said.
If a guardian is paid, then it’s in their interest for the conservatorship to continue, said Margo Lindauer, a professor at Northeastern University School of Law.
If a guardian swindles funds from the person they’re protecting, the guardian could face disciplinary hearings or criminal penalties, Seielstad said.
Some states have found ways to hold guardians accountable, Seielstad said. In Minnesota, conservators “are required to submit an inventory to establish the assets and estate of the protected person” online and account for each transaction annually.
Other ways conservatorships are abused
But sometimes conservators fail to comply with mandates like annual financial reporting. In an opinion piece for The Hill last year, Kohn wrote how former NFL player Michael Oher had “filed a court petition alleging that he had been duped into ‘agreeing’ to a conservatorship.” Oher was the subject of the 2009 film “The Blind Side.”
In Tennessee, a judge has to find “clear and convincing evidence that the person is disabled and needs that assistance,” but a judge still placed Oher under a conservatorship despite finding otherwise, Kohn wrote.
She wrote that his case highlights how “courts unnecessarily strip people of their rights and then fail to monitor the risky arrangements they create.” Oher also alleged his conservators failed to file “a single accounting of his funds even though Tennessee law requires this annually,” she said.
“Moreover, as Oher’s apparent continued confusion about his conservatorship suggests, courts often fail to adequately explain to people subject to conservatorship what that arrangement means and what their rights are under it,” Kohn continued.
Avoiding guardianship problems
Seielstad said there are some early steps people can take to avoid the complications that may arise with guardianships.
“People can avoid the necessity of appointment of a guardian by electing good family members or others to act as powers of attorney, should the need arise, taking care to designate alternates in the event the primary one becomes unable to do the duties,” Seielstad said.
Lindauer said she would like to see more transparency.
“I think people under guardianship should have more information and more ability to have a say in the process and who is the guardian,” she said.
In the case of Britney Spears, who was placed under involuntary conservatorship by her father and a lawyer, the guardianship had “become an oppressive and controlling tool against her,” an investigator reported. She didn’t know she could choose her lawyer, the pop singer wrote in her memoir, or that she could petition to end the conservatorship, she told a judge.
When it comes to reforming guardianships, Kohn said states could implement the Uniform Guardianship, Conservatorship and Other Protective Arrangements Act, a statute drafted by a nonprofit that advocates for consistent laws across the country.
Under the act’s provisions, “guardians cannot be appointed unless there is a substantial need and no less restrictive alternative would meet that need,” she said.
Guardians would be limited in their ability to stop the protected person from interacting with family and friends.
She added it would also “create new mechanisms for monitoring guardian’s conduct.” Barring a good cause, she said courts would be required “to mandate that guardians tell adult children and spouses of certain big changes in a person’s life, such as a change in the person’s primary residence,” Kohn said.
“This isn’t just a story about bad apples doing bad things when they’re appointed guardians. This is really a story about courts removing people’s rights without adequate justification, and then not monitoring the relationship to make sure that it’s actually protected for people,” she said.
It’s difficult if not impossible to quantify how often this happens, because Kohn said “there is a profound lack of data on the guardianships.”
But Kohn is optimistic the system can be changed.
“I think this is something that is fixable. Profoundly fixable,” she said.
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