A professional guardian, someone tasked with making decisions about health care, living arrangements, finances and more for those considered incompetent to manage their own affairs, requires only court approval. State law requires no certification, no background check, no insurance against loss of the individual's assets, really nothing but the trust of an orphans court.
The failings of this system - which strips individuals of even limited control over their own lives - are many, as a three-day series in the Reading Eagle found.
Nine months after a woman who had been convicted of financial theft in Virginia became the court-appointed guardian of a Montgomery County man's assets, his house was subject to foreclosure over unpaid mortgage payments and other bills. The same woman had been appointed guardian in 88 other cases in 2015 and 2016 in Montgomery County and Philadelphia.
Data on guardianship in Pennsylvania are not collected in any organized fashion, making the system difficult to monitor and problem areas hard to quantify and therefore a challenge to solve.
Though family connections are no guarantee of fealty to an elderly person's best interests, Berks County courts appear to favor professional guardians to a degree that seems difficult to justify. In 92 percent of cases in which the Berks County Area Agency on Aging asked a court for one in 2016, a professional guardian or attorney was appointed. In spite of there being family members living in the state in half of the cases, a relative was appointed only twice. As Sam Brooks, senior attorney for Community Legal Services of Philadelphia, said, "The default position should be to look for family."
Many of those ruled incapable of making their own decisions and given a court-appointed guardian - 76.9 percent in Philadelphia from 2014 through 2016 - were not present at the hearing stripping them of their rights, had no attorney representing them in the proceeding, or both.
Even when an attorney is appointed on an individual's behalf, that attorney is under no obligation to argue against a guardian; an attorney can instead take the position that a guardianship would be in the individual's best interest.
Pennsylvania's guardianship system clearly needs an overhaul.
In an incompetency hearing, for example, there should be someone to argue for competency, leaving it to a judge to decide what would best serve an individual's best interests. Failure to do so creates the potential that a person could lose even limited oversight of their health care, lifestyle and assets.
Family members, particularly those who express interest in a relative's care, should get a chance to make a case that they're able to do so.
And most importantly, the state needs to set standards for professional guardians. People convicted of theft should not be put in charge of others' assets.
Full Article & Source:
Editorial: Important safeguard failing state's elderly