Ohio’s Guardianship Laws Leave Seniors Vulnerable to Abuse

Ohio has struggled to care for vulnerable seniors, and it's getting worse.

The state's probate courts are responsible for creating and monitoring guardianships of the frail elderly, balancing freedom and protection. They are already strained. And yet, between 2010 and 2030, the number of Ohioans over 65 is projected to rise by half, from 1.6 million to 2.4 million. Over the next seven years the number of Alzheimer's patients in the state is projected to rise by 13.6 percent.

Authorities don't even claim to know how many guardianship abuse cases are out there. "Once a guardianship is imposed, there are few safeguards in place to protect against individuals who choose to abuse the system," wrote the United States Senate Committee on Aging in its 2018 report on guardianship. "Few states are able to report accurate or detailed guardianship data."

Since 2015, Ohio probate courts have been required to monitor complaints and have a response system in place. While this information can be requested by the public, no single agency tracks it across the state.

Already, state probate courts charged with protecting vulnerable citizens are strained. During 2017, the courts opened 6,864 adult guardianship cases, versus 2,159 involving children. As caseloads rise, courts struggle to find, pay, and monitor guardians. The resource shortage leaves older adults even more vulnerable to exploitation or abuse.

Some counties keep tabs on the well-being of wards through visits with court investigators or volunteer visitors. In others, the guardian is the only person who reports the condition of the ward back to the probate court.

A study by the Scripps Gerontology Center found that while most courts have investigators, only 28% of them said that monitoring guardianship is a regular part of their job. Just one in four Ohio probate courts have at least one full-time investigator on staff.

"I think one of the major issues that every county is experiencing is a lack of funding for these services," said Amy Restorick Roberts, who studies guardianship and teaches at the Scripps Gerontology Center. "Monitoring and oversight are critical steps that are very difficult to devote resources to if counties are strapped financially."

Restorick Roberts said that some smaller and rural counties still lack information management systems to help track general guardianship information. In her survey of 55 Ohio probate courts, only six counties could provide statistics on the reason adults were placed under guardianship.

"We need to have a better tracking system of who is involved and what their needs are and to ensure that their best interests are taken into consideration," she said.

"We have a real challenge in terms of making sure that these individuals are being served appropriately when we can't even track and identify who they are and what their situation really entails."

Adults who cannot care for themselves due to a mental impairment can be declared legally incompetent and thus become a ward of the state. A legal guardian can be a person, corporation or organization with the authority to make personal, financial and/or property decisions for an individual who lacks the capacity to do so.

"Being a guardian is pretty much like being a parent," said Judge Randy Rogers of the Butler County Probate Court. "It's a tremendous responsibility."

Ohio Boosts Protections

Before the summer of 2015, guardians were not legally obligated even to visit their wards."It was kind of a sad state of affairs," said Jack R. Kullman, the director of Franklin County's Guardianship Service Board.

Now, a guardian must meet with the prospective ward at least once before being appointed, and a minimum of four times a year afterwards.

The 2015 updates also require guardians to pass a background check and take a course offered by the Ohio Supreme Court before being appointed. Continuing education courses are now mandatory. These courses encourage guardians to consider the desires and preferences of wards whenever possible.

"Even though the guardian may be actually making the final decision the individual under guardianship should be involved to the extent they can in the decision-making process," said David English, a professor at University of Missouri School of Law who specializes in guardianship

Generally, he added, the aim is to "banish the view that the person is totally incompetent and 'Now I make all the decisions for you.'"

But even now, only 9 percent of Ohio's probate courts require that the ward be present for an initial court hearing, if able.

Adult wards have no rights guaranteed under Ohio law. A ward's bill of rights was initially part of the Ohio Legislature's reform bill, House Bill 50, but that section was dropped before the bill was passed.

And the reforms have not been free. Judge Randy Rogers of the Butler County Probate Court, which oversees about 1,000 guardianship cases, said his court filed 20% more documents from just two new mandated forms.

"It's a lot of work for probate courts and it's a lot of work that was created without any increase in resources," said Rogers. His staff is still still working on tracking down all the guardians appointed before the change, to make sure they've taken the course. Despite the challenges, Rogers said he believes the new requirements will have a positive impact, provided the courts embrace them.

"Was it good for us, to help us focus on what would make things better? Yes, it was good and a lot of work went into it," he said. "Now the job is for us in the probate courts to implement these changes."

Even after the reforms, contentious cases can be costly for the ward, partly for lack of a mediation program.

Legal fees pile up during arguments over who should be appointed guardian. Wards can lose a considerable amount of money in a legal battle over who gets control over their life, a battle in which they have little to no say.

What Can We Learn From Other States?

Ohio isn't the only state seeking answers.

Minnesota tackled financial elder abuse in 2012 by establishing a Conservator Account Auditing Program (CAAP). It created an online system for uploading records of court-appointed conservators and hired a team of auditors to periodically review them. A related initiative is called the Conservator Account Review Program (CARP).

According to Minnesota Judicial Branch Audit Manager Jamie Majerus, roughly 4,800 Minnesotans had assets under conservatorship in 2018 that were monitored by the programs. The value of these assets totalled $950 million.

In both programs, professionals supervised by certified fraud examiners oversee wards' finances. CAAP audits all conservator-managed accounts after the first year and all accounts with assets exceeding $10,000 every four years. CARP routinely audits all conservator-managed accounts, regardless of size, and can refer those accounts to CAAP if it spots potential problems.

After the audit, judges get an Account Review Report summarizing the auditor's findings and recommendations. A similar document is provided to the judge before conservatorship hearings.

One expert calls it the model for an auditing system.

Nevada addressed guardianship abuse after a fraud case drew national attention. Professional guardian April Parks used her court-appointed position to isolate and financially exploit more than 150 individuals in Las Vegas before she was caught. She got the maximum sentence of 16-40 years in prison after pleading guilty last November.

In 2017, the Supreme Court of Nevada created the Permanent Guardianship Commission, made up of judges, advocates and attorneys, to oversee and improve the state's guardianship practices.

Wards must be present at a hearing, if physically able, and must have legal representation. A proposed ward can hire his or her own lawyer, but many are appointed by the court through legal aid centers.

"Now, protected persons and proposed protected persons have trained lawyers fighting for what they want, not what everyone thinks is in their best interest," said Jim Berchtold, who leads the Guardianship Advocacy Program at the Legal Aid Center of Southern Nevada.

Berchtold believes that a lawyer independent from the probate system can best serve wards as an impartial advocate.

"Even if a protected person is unable to express his or her wishes, the mere presence of an attorney to represent them helps to ensure compliance with the statutes and dissuades financial exploitation and other abuses," he said.

Nevada also created a Guardianship Compliance Office, which supports district probate courts by reviewing cases and performing investigations upon request. It can investigate the health and welfare of a protected person, locate guardians the court has lost contact with, and run forensic audits if a judge is concerned about a ward's accounting.

"Before the court didn't have those resources to dig in and investigate," said Guardianship Compliance Manager Kate McCloskey. "We have one district court that calls our audits 'liquid gold.'"

The GCO also operates a hotline for anyone who has questions about guardianship or needs help reporting guardianship abuse.

Berchtold and McCloskey said Nevada's 2017 Protected Person's Bill of Rights was another major step forward. It includes the right to be educated about guardianships, to participate in developing plans that will affect the ward's future, and to remain as independent as possible.

Overburdened Ohio courts can be particularly overwhelmed when family members disagree on the proper way to care for loved ones who can't care for themselves.

In April 2013, Fourough Bakhtiar, an Alzheimer's patient, went to lunch with her daughter, Jaleh Presutto. She never returned.

Ten days later, Bakhtiar signed a document giving Presutto power of attorney. Bakhtiar had originally filed for divorce in 1988 but later dropped the case. Soon after she went to live with Presutto, she filed for, and was granted a divorce, after about 50 years of marriage.

Neurologists who examined Bakhtiar at the time said dementia made her "vulnerable to exploitation."

The question of her care has plagued the courts in Lorain and Cuyahoga County for six years.

The court later removed Presutto and her husband as guardians after they pled guilty to separate felony counts of forgery and unlawful use of property for misappropriating money from their son's school district.

Bakhtiar's new guardian, attorney Zachary Simonoff, supported Bakhtiar's petition to end her marriage. He said that while she was incompetent as a matter of law, her dementia did not bar her from expressing her wishes. He also pointed out that it's not the first time Bakhtiar has filed for divorce. She and her husband were separated for about four months in 1988; Bakhtiar began divorce proceedings, but ended up moving back in with her husband instead.

Her four sons disagree. They allege that their mother was unduly influenced by Presutto, who wanted access to the funds from a hefty divorce settlement. They said the lawyers involved in Bakhtiar's care have supported the divorce because they profit from the legal fees.

Simonoff said the only reason the Saghafis oppose the divorce is that they want their father to keep the settlement money. He said the family's appeals are to blame for the legal fees billed to Bakhtiar's estate.

"If they would stop suing the guardianship, there would be a severe drop off in the money that's going to attorneys," he said.

Jamsheed Saghafi vehemently disagreed. "I couldn't care less about the money that was stolen," he said. "I want my mom returned. If (the attorneys) want the money, go ahead and burn it all."

It's been years since Bakhtiar last saw her family. The court has ordered that Mehdi Saghafi not contact his ex-wife. The rest of the family is welcome to visit, says Simonoff, provided they give him one business day's notice. Jamsheed Saghafi said the family won't visit her until his father is allowed to join them, but they will continue to appeal the case.

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Ohio’s Guardianship Laws Leave Seniors Vulnerable to Abuse