Guardianship Motto

Isolate...

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Guarding the Guardians

Guarding the Guardians: Promising Practices for Court Monitoring
Research Report
Naomi Karp, J.D., AARP Public Policy Institute
Erica F. Wood, American Bar Association
December 2007

Court-appointed guardians step into the shoes of at-risk adults with cognitive impairments, making judgments about medical care, property, living arrangements, lifestyle and potentially all personal and financial decisions. Court monitoring of these guardians is essential to ensure the welfare of incapacitated individuals, detect abuses and sanction guardians who demonstrate malfeasance.

Despite a dramatic strengthening of statutory standards in recent years, judicial monitoring practices vary substantially by jurisdiction. This AARP Public Policy Institute (PPI) Research Report by Naomi Karp (PPI) and Erica Wood (American Bar Association Commission on Law and Aging) describes methods for helping courts protect some of our society's most vulnerable people. Through site visits to exemplary courts, the authors have identified promising approaches that can be replicated by courts around the country.

Full Report (PDF)
In Brief (HTML)

In Brief (PDF)

Source: AARP: Guarding the Guardians: Promising Practices for Court Monitoring

Guardianship Reform

Some information on guardianship reform from Mass Lawyers Weekly:

A recent series in The Boston Globe revealed numerous problems with guardianship cases in Massachusetts. Many of the examples were rather chilling indicators that the very system that is supposed to help the elderly can often hinder them in cruel ways. Lawyers know that this is an area ripe for reform, although it would be counterproductive to scapegoat any one interested party.

Probate & Family Court judges frequently are faced with difficult decisions in cases in which an elderly or incapacitated person may be at risk because of mental or physical incapacities. If that person has no family member or friend who can assist, there is the painful question as to who will stand up for the individual. As such, decisions on elder guardianships are not made lightly by judges. However, judges are not authorized by statute, or otherwise, to appoint counsel in guardianship cases, except in rare instances. And budget restrictions limit a judge's ability to appoint guardians ad litem in all cases. Instead, GALs are appointed only in cases in which problems are identified. Further, only limited funding is available for individuals who are willing to serve in the role of a guardian.

Judges share the common goal that better due process protections need to be built into Massachusetts guardianships, and, in fact, efforts are under way to reform the way guardianships are handled here. One major reform would be the revision of the medical certificate that must accompany a guardianship petition. The new certificate would require details of the elder's actual functionality. The revised medical document places the possibility of a limited guardianship at the forefront of any analysis of whether an individual who is alleged to be incapacitated is in need of guardianship.

Efforts are also under way by the court to provide greater instruction to guardians about their role and responsibilities. Written guidelines would be provided, and an educational video is being considered as well. The court has further been a staunch supporter of Article V of the Massachusetts Probate Code, which provides for significant reform in the guardianship area. While the Uniform Probate Code is being considered by the Legislature, the court is revising its petition for guardianship to require more information about the relationship of the petitioner to the ward, where the ward resided before the petition was filed, and the address where the elder is to reside if the guardianship is granted.

Guardianship reform is long overdue. If anything, lawyers and judges have attempted to deal with the shortcomings of the existing statutory scheme with as many creative solutions as they have been able to devise. Lawyers routinely assist the court by taking on the role of guardian or guardian ad litem for little or no fee. Judges are typically thoughtful and diligent in dealing with guardianship issues. But, undoubtedly, there are changes that should be made to improve the rights of potential wards and to streamline review of the actions of guardians. Only then will the process be fair to all.

Source: Mass Lawyers Weekly: Guardianship reform is overdue

Gov. Deval L. Patrick’s top adviser on elder affairs has thrown the administration’s support behind a far-reaching revamp of the system by which guardians are appointed in Probate & Family Court. Elder Affairs Secretary Michael Festa pushed for the overhaul, telling the Judiciary Committee that a pair of bills includes the necessary checks and balances for guardianship appointments that currently are not in place, such as permission for judges to appoint legal counsel for the person at the center of the case.

Probate & Family Court Chief Judge Paula M. Carey said that guardianship reform is “long overdue.” She asked lawmakers, if they pass legislation to give the court six month’s lead-time for the training of lawyers, staff and judges. Several attorneys have raised budget concerns, arguing that the legal counsel provision is potentially an “unfunded mandate.” Some who testified before the Judiciary Committee said they support guardianship reforms but oppose other aspects of the bill, including provisions dealing with a uniform probate code, estate administration and surviving-spouse’s shares.

In the guardianship section, referred to as Article V in the Senate version, the bills remove the standard for “mental illness, “ create a new standard for “incapacitated person, “ require the court to make detailed findings of incapacity before appointing a guardian and then ensure the guardian is qualified. Guardians would also have to submit detailed annual reports on the person’s mental, social and physical conditions.

Source: Mass Lawyers Weekly: Push on for reform of guardianship

Information on guardianships: Massachusetts Senior Citizens

Bad News for Britney

The latest guardianship news is about Britney Spears. It is reported that Britney has been placed in a California conservatorship where her finances are now being controled by her father and an attorney.

A court creates a conservatorship when it concludes a person no longer can care for him/herself or his/her personal and financial affairs.

More information on Britney's case:

Spears' parents go to court for conservatorship hearing

Spears' dad has temporary control

Psych ward extending Spears' stay 2 weeks

Spears' father retained as conservator

Britney Spears objects to father’s conservatorship

The war over Britney’s conservatorship begins today!

Future Trends for State Courts

The National Center for State Courts (NCSC) has published its annual report on things to watch out for in state courts.

[PDF] copy here and [HTML] index here.

The report includes:

Court records and privacy. [PDF] How do courts make information available, especially online, without disclosing sensitive information such as Social Security numbers?
Problem-Solving Courts. [PDF] Rather than the "lock 'em up and throw away the key" approach, courts increasingly are trying to solve the core issues that land people there in the first place. Drug courts, family courts and environmental courts are all examples.

The report draws comparisons to show how things used to be handled and how they are now.

Source: Poynter Online News

Poynter also reported on guardianship:

A flood of guardianship monitoring cases is coming. [PDF] These involve the court, or somebody appointed by the court, to look after the welfare of seniors who cannot manage their own affairs. Consider these facts from the report:
The number of people age 65 and older numbered 35.9 million in 2003. As the baby boomers come of age, this older population will more than double, reaching more than 71 million by 2030. The number of people aged 85 and older is expected to triple by 2040 to 15 million.Alzheimer's disease and related dementias are becoming more prevalent. In 2007 there are now more than 5 million people in the United States living with Alzheimer's disease, 4.9 million of whom are over the age of 65. This is a 10 percent increase from the previous nationwide estimate of 4.5 million. In addition, guardianships include an increasing number of younger adults with developmental disabilities and mental illness. Intellectual disabilities affect about one in ten families in the U.S.At the same time, incidents of elder abuse are rising. Between 1986 and 1996, reports of abuse and neglect of seniors age 60 and older to state adult protective services agencies increased 150 percent, from 117,000 to 293,000.

So judges will be increasingly involved in managing these lives. Courts have never managed as many guardianship cases as they do now -- and many more are on the way. How will courts, especially in retirement communities, handle the flood?

People in the Know

Guardianship and conservatorship abuse is apparently nothing new.

People in the know speak out about guardianship abuse and fraud

The following are some quotes about guardianship abuse and fraud from highly respected sources:

"This [guardianship] is an area ripe for fraud and where most fraud abuse has in fact occurred." — Karleen F. DeBlaker, Clerk of the Circuit Court, Pinellas County, Florida (4/2004)

Reports of guardians stealing from their wards' bank accounts and other wise abusing guardianship powers are surfacing with disturbing regularity. 'This problem is going to get bigger and bigger,' says E. Bentley Lipscomb, AARP's Florida state director and a former state secretary of elder affairs. — GUARDIANS DRAWING INCREASED SCRUTINY, AARP Bulletin

It is a system that in practice often serves lawyers over clients. Even as the court's lax oversight allows guardians to neglect their responsibilities, it also permits some lawyers to take unnecessary control of people's lives. — Washington Post, 2003

Judges and their favored professional conservators and guardians, expert witnesses and court investigators have unspoken agendas: money, power and control. When an elderly individual is brought into court and forced to prove his or her competence, we soon see that the system does not work. We have a system rife with court-sanctioned abuse of the elderly. Why? Judges override protections that have been put in place in the codes. It happens every day. Judges disregard durable powers of attorney — the single most important document each of us can create to determine our care should we become incapacitated. Judges ignore our lists of pre-selected surrogate decision-makers. The current system does not work. This reality is most apparent when a wealthy individual falls victim to these involuntary proceedings and his or her wealth becomes a ripe plum to be shared by the Judge’s favorites. — Diane G. Armstrong, Ph.D., excerpt of prepared statement before the U.S. Senate's Special Committee on Aging, February, 2003. Author of The Retirement Nightmare: How to Save Yourself from Your Heirs and Protectors: Involuntary Conservatorships and Guardianships

The denial of these rights is the consequence of a court determination that an individual is legally "incompetent" or "incapacitated" and the appointment by the court of a guardian to act as surrogate decision maker on the person's behalf. The real tragedy is that mounting evidence suggests that many of these individuals having been stripped of their right to self-determination are being poorly served, and even victimized and exploited by the very persons or agencies appointed to protect them and to make decisions on their behalf. — House of Representatives, Select Committee on Aging Report

...guardianship can divest an elderly person of all the rights and freedoms we consider important as citizens. — Chairman of the Senate Special Committee, Larry Craig

"Ironically, the imposition of guardianship without adequate protections and oversight may actually result in the loss of liberty and property for the very persons these arrangements are intended to protect. — Chairman of the Senate Special Committee, Larry Craig

“Instead of serving to protect the assets of incapacitated persons, the existing guardianship system presents the opportunity for unscrupulous guardians to loot the assets of their wards and enrich themselves with impunity.” — New York Grand Jury

Elderly people are routinely stripped of basic rights in court hearings. — Detroit Free Press

"Outside of execution, guardianship is the most radical remedy we have." — Elias Cohen, Philadelphia Attorney and Gerontologist

The gulag of guardianship: the legal system meant to protect our elderly is a national disgrace. — Money Magazine

"... older Americans are being robbed of their freedom and life savings by a legal system created for their protection." and "Although relatives are the most common exploiters, the damage they cause generally stays within the confines of their own families. By contrast, greedy professional guardians can wreak havoc on a far larger scale. In many states, there are few prerequisites for entering the guardianship business: no special training, no licensing process, no enforceable professional standards." — AARP: The Magazine, January/February 2004

"These are not isolated, occasional blips. This constitutes a significant portion of the cases out there. They were flat-out rip-off situations." — Robert L. Aldridge, elder law attorney and a member of ElderLawAnswers.com

Re: forced incompetency: Visit assisted-living facilities [and retirement communities] and establish employee contacts; obtain voluntary limited financial guardianship; if there is money in the estate, do paperwork to force an evaluation of competency; get control over everything and the ward [senior] loses all rights. — Pinellas County Internal Auditor, Robert W. Melton, "Dirty Tricks of Guardianships – The Need for Change." April/2004

Once judged incompetent and placed under a conservatorship [or guardianship], a citizen becomes a nonperson, with fewer rights than a convicted felon in a penitentiary. Your income goes to the conservator, who also controls your assets. You can't write a check, use a credit card, or make an ATM withdrawal. — Robert Casey, Editor, Bloomberg Wealth Manager

"This is something that ought not to be taken lightly. Seniors have become victims of the legal process. When you become old, you should not, by the action of a court, automatically lose your rights just because some family member or impersonal administrator calls you incompetent." — Senator Larry Craig, Chairman, U.S. Senate's Special Committee on Aging. (February, 2003)

"[O]ne startling conclusion about the whole process of incompetency was drawn from the realization that in almost every case examined the aged incompetent was in a worse position after he was adjudicated incompetent than before. The study could identify no particular benefit which flowed to the incompetent that he could not have received without a finding of incompetency." G. Alexander & T. Lewin, The Aged and the Need for Surrogate Management, 136

Source: Justice for Florida Seniors Archive