Tuesday, March 9, 2010

OH Standards of Practice for Attorney Guardians

Judge Eric Brown got an earful - and dozens of e-mails - when he asked the public's opinion on rules to protect the addled, aged and disabled from busy or unscrupulous attorney guardians.

Some examples:

• Don't require us to visit each ward personally at least once every three months, some attorneys pleaded with the Franklin County Probate Court judge. Many attorneys have only a handful of wards, but others have a large staff to work with hundreds.

That rule stays, Brown said.

• Don't require those alleged to be incompetent to open their homes to prospective guardians, who lack legal authority to visit, others said.

Got a point, Brown decided. He told guardians to ask to visit.

• Put as Rule No. 1: "Take no actions which are not in the best interests of the ward," a Texas judge suggested.

Brown agreed that would cover everything. An early paragraph now reads, "In all matters, the guardian shall always consider and act in the best interest of the ward."

Other states have embraced guardian guidelines, and Brown hopes his standards will help the Ohio Supreme Court as it works to do the same.

"These standards will improve the quality of work by the (attorney) guardians," Brown said. "They're going to be better trained. They're going to be more personally involved. They're going to be held to higher standards with regards to ethics and standards."

The rules will be mandatory starting in late summer for attorneys, who are usually paid from their ward's assets. Brown has the authority to impose rules on anyone before his court, though his rules for licensing, training and other requirements apply only to attorneys. The judge hopes relatives and volunteer guardians will still find them helpful.

Brown's rules will forbid the attorney guardians from self-dealing: They can't hire their relatives without court permission. And they must respect a ward's wishes and privacy.

Brown made guidelines a priority when he took office a year ago. As a Common Pleas judge, he'd heard the case of Milous Keith. The retired city worker lost his freedom and allegedly more than $400,000 in assets under an attorney guardianship before Brown found him competent.

Today, Keith is suing his former guardian's law firm, alleging that guardian Jim Hughes sold assets at a loss, hired his father-in-law as a real-estate agent and failed to inventory safe-deposit boxes.

Full Article and Source:
Opinions Fervent on Rules for Attorney Guardians

See Also:
Read the Standards of Practice for Attorney Guardians


tvfields said...

I congratulate Judge Brown for addressing many of the complaints which I've heard or read about. On the other hand, I think more is needed. In particular, I believe many of these rules are too vague to reliably prevent guardianship abuses. In an effort to make this point and others clear, I'll include below some of the questions which came to my mind as I read these standards.

These rules (see the paragraph immediately above Section I) apply only to lawyers who serve as guardian for more than five adult wards in Judge Brown's court. Why shouldn't they apply regardless of the number of wards for whom the attorney serves as guardian in Judge Brown's court?

These rules (see Paragraph II/H/7) require guardians to limit their caseload to a size that allows them to support and protect each ward properly and to fulfill all guardianship duties in accordance with Ohio guardianship law and these standards. What would be a practical basis for determining this limit? Should this limit depend upon the condition of the wards and the services which the guardian needs to provide them? If so, how?

These rules (see Paragraph II/D/2) require the guardian to visit the ward personally at least quarterly. Is this sufficient? Should the frequency of visits depend upon the condition of the ward and the services which the guardian needs to provide the ward? If so, how? Should the guardian ever be required to video record his visit with the ward? If so, when?

These rules (see Paragraph II/D/3) require the guardian to attempt to maintain a good relationship with the ward's family and promote a good relationship between the ward and the ward's family unless contrary to the best interests of the ward. What should a guardian need to do in order to fulfill this rule? Should these rules include a protocol for the guardian to follow at the first sign these relationships are deteriorating so as to avoid the family's alienation. If so, what should be included in this protocol?

These rules (see Paragraph II/D/4) require the guardian to respect the ward's privacy and dignity and carefully consider the ward's wishes for confidentiality before disclosing information to the ward's family or others. Should these rules include a protocol for determining, recording and reporting the ward's wishes for confidentiality? If so, what should be included in this protocol?

Similarly, these rules (see Paragraph II/E/1) require the guardian, when making decisions on behalf of the ward, to determine if the ward has a current preference and defer to that preference unless doing so would cause the ward harm. Should these rules include a protocol for determining, recording and reporting the ward's preferences? For identifying and reporting evidence of the ward's previously-stated preferences if the ward currently is unable to state a preference?

These rules (see Paragraph II/D/5) require the guardian, when appropriate, to keep the ward's family reasonably advised of pertinent medical information and other major life decisions such as address changes and funeral preplanning and consider their input when making such decisions. How quickly should this information be communicated to family members? Should this information be communicated in writing as well as by voice? Should the guardian be required to advise family members to submit their input in writing? Should the guardian be required to submit this input to the court?

Anonymous said...

I'm glad Judge Brown cared enough!

Norma said...

The thing is the standards of practice need to have no open ends.

"In the best interest of the ward" is one of those open ended statements. Most abuse, including isolation, is accomplished, "in the best interest of the ward."

Watching said...

Thank you, tvfields. Your comments are as good, infomative, and helpful as the article itself!

Lou said...

Nice of Judge Brown to make an attempt at this however, doesn't change the fact that there is no oversight of guardians. The guardians say they are "acting in the best interest of the ward" as the isolate, medicate and liquidate their estates. The judges get out their rubber stamps and make it a done deal! The system sickens me.