Wednesday, May 25, 2016

Next Avenue: Guardianship Laws are Improving, Problems Persist

(Editor’s note: This is Part 2 of a three-part series on guardianship abuses appearing this week on Next Avenue.
Here are Part 1 and Part 3.)

Cases of abusive guardianships have made headlines for decades. Horrific tales — of relatives fighting over Mom to access her savings, professional guardians draining an estate through exorbitant fees or nursing homes filing for guardianship to keep their beds filled — have been all too common.

When a judge imposes legal guardianship or conservatorship, everything changes.

After a hearing that might last only minutes, the ward or “incapacitated person” may no longer be allowed to decide where to live or whom he or she will see. If a guardian is appointed for you, that person will choose whether you get any spending money. You won’t be able to enter into contracts, including marriage, or demand a different guardian or your freedom back — even if your guardian is abusing you or stealing your money.

Nationwide Reforms

Many such arrangements are undoubtedly necessary and benign. And the ranks of guardians and conservators include some highly dedicated, caring and selfless people.

Yet this Next Avenue investigation has come to a key conclusion: changes are desperately needed.

Yes, lawyers, judges, advocates and politicians have fought hard for reform in the guardianship and conservatorship systems. (Guardianship generally refers to control over a person; conservatorship, to control over a person’s finances.) And dozens of new laws have been put in place throughout the country.

But many experts believe it’s all happening far too slowly — and some of the most finely crafted laws remain mere words on paper.

“Even though we’ve made changes in the statutes, it’s as if we’re living in a virtual reality,” said A. Frank Johns, a Greensboro, N.C. attorney and a national leader in the field of elder law. “When you go out and try to look for the application of those changes, it’s nowhere to be found.”

Landmark Investigation

Experts say there was little widespread recognition or publicity about the problems in guardianships until 1987, when the Associated Press published a blistering six-part series of articles following a year-long investigation.

Then as now, there were no reliable statistics on exactly how many guardianships there are nationwide; the AP estimated 300,000 to 400,000. Today, experts give a range from 1 million to 2 million. States do not keep track of the numbers.

The exposé prompted impassioned calls for reform and led to a host of new state laws.

*Some of the changes since then include these requirements:
*That the would-be “incapacitated person” is notified of the guardianship hearing and be present if desired
*That he or she has the right to an attorney
*That there is “clear and convincing” evidence that the person is incapacitated, and, in some states, that guardianship is necessary to avoid harm
*That (in some states) a medical expert assesses the proposed ward.

Efforts in Michigan

Changes in the laws didn’t always translate to changes in the courtroom, however.

For instance, after the AP series came out, Michigan passed a comprehensive new law. “After the Guardianship Reform Act of 1988, Michigan has probably had the best or among the best statutes in the United States,” said attorney Bradley Geller, who has spent his career in the field, most recently as an assistant long-term care ombudsman for Michigan. However, he added, “that has, over the past 27 years, meant absolutely nothing.”

Geller attended a conference of probate judges when the law took effect. “One probate judge rose and said, ‘Guardianship reform will come to Michigan when all the sitting judges are dead.’ And he was, unfortunately, optimistic, because even with a new generation of probate judges, the problems remain,” Geller said.


Raymond said...

The laws are for the most part improving, but the problems persist because when the courts don't enforce the law, there are no penalties. Judges run wild west courtooms.

Mary said...

Problems are growing, not persisting.