Financial misconduct by lawyers and others serving as guardians for incapacitated adults risks ruining public trust in the adult guardianship system just as the government is promoting it in response to the growing needs of the nation’s rapidly aging population. Steps must be taken to stop the wrongdoing by people who are supposed to be helping those who have lost the ability to make decisions on their own due to such problems as dementia by managing their assets and signing contracts on their behalf.
Most of the reported cases involve the close relatives of incapacitated persons who are found to have abused their court-appointed position as guardian. But an increasing number of cases — although still relatively small — involve professionals such as lawyers, judicial scriveners and certified social workers.
Under the system that has been in place since 2000, adults who have lost their full ability to make decisions due to dementia and intellectual and mental disabilities — as well as their relatives and administrative officials — can file requests with the family court to select guardians to support them in managing their assets and signing contracts. Last year, there were a record 34,782 applications at family courts nationwide to use this system.
However, the chronic shortage of people who can serve as guardians means the number of citizens using the system is relatively small — some 190,000 as of the end of last year. The government expects the need for adult guardianship to increase as the number of elderly dementia sufferers aged 65 or older — estimated at roughly 4.6 million throughout the country — is forecast to hit 7 million by 2025. In April, legislation was enacted to promote the use of the system that calls for the training of non-professional third-party people to serve as guardians, expanding the power that can be accorded to the guardians and increased supervision by family courts that appoint them, and mandating necessary legal steps to be taken within three years.
The supervision of guardians to prevent wrongdoing is particularly important for promoting the system, because otherwise incapacitated people cannot securely entrust their financial matters to them. Family courts, lawyers association and other relevant organizations and people should work together to come up with solutions for the system’s problems.
The people selected as guardians in response to applications with the family courts include relatives of the incapacitated persons as well as legal and welfare specialists. The guardians are tasked to make decisions on such matters as managing the persons’ savings and other assets including properties, and sign various contracts on their behalf. They can be empowered to cancel contracts that the incapacitated persons have signed to purchase goods at unfairly high prices. The government is now considering whether to allow guardians to also make decisions involving medical services such as surgery and blood transfusions.
When the system was created, most of the guardians were relatives of the people needing the help. But in 2012, specialists such as lawyers came to account for more than half the people serving as guardians for the first time. Last year, “third parties other than relatives” accounted for roughly 70 percent of the total — apparently reflecting an increase in the ranks of elderly people living alone with no relatives to turn to for help.
Although they still account for a small portion of the wrongdoing committed by guardians in total — whose cases in 2015 numbered 521 with total damages of ¥2.9 billion — it is misconduct by professional guardians such as embezzlement that is coming under the spotlight. According to the Supreme Court, the number of cases involving specialists serving as guardians, which numbered six with total damages of ¥130 million in 2011, increased to 22 cases with damages totaling ¥560 million in 2014 and 37 cases with damages amounting to ¥110 million. In one case, a judicial scrivener was found to have withdrawn ¥66 million from the bank accounts of four elderly women to buy luxury products. In another case, a lawyer was accused of stealing money from a client’s bank account to cover his office’s financial difficulties.
Reforms have been introduced to prevent wrongdoings by guardians. A family court can now appoint another lawyer to supervise a legal professional selected as a guardian when the assets to be managed are of high value, and a system has been implemented to prevent the withdrawal of a large amount of money without the instruction of the family court. Lawyers’ associations and groups of judicial scriveners also have reporting systems aimed at preventing misconduct by their members. But such steps have yet to eliminate the wrongdoings, which undermines people’s trust in the adult guardianship system. Relevant parties should discuss what more needs to be done to halt guardian misconduct.
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