Who's guarding the guardians of the elderly? Pa. courts urge action

By James McGinnis Staff writer

Leasing an apartment may be more complicated than assuming legal guardianship of an incapacitated person in Pennsylvania and dozens of other states across the U.S.

On Friday, the Register of Wills/Orphans’ Court Association of Pennsylvania released a set of new “best practices” for government agencies managing thousands of cases of adult guardianship. Such cases, filed in Orphans’ Court, typically involve older Pennsylvanians in the care of family, friends or professionals.

The new recommendations come as Pennsylvania’s senior population explodes. In 2010, the U.S. Census estimated 2.7 million, or 21 percent of the state population, was over age 60. By 2030, the Census anticipates 3.6 million Pennsylvanians could be 60 age or older.

At the same time, the number of “substantiated” elder abuse cases is climbing. The Pennsylvania Area Agency on Aging reported 4,991 cases of “substantiated” elder abuse in 2013, the latest figures available. The number of cases was up 7 percent from the year prior. Most involved neglect; 16 percent involved stolen money.

Among the recommended best practices, county governments should contact court-appointed guardians who fail to submit required paperwork, said Don Petrille, Bucks County’s register of wills.

“We want to make sure the guardians are filing annual reports,” Petrille said. “The majority of counties do not contact them.”

Three years ago, Bucks created an electronic filing system to immediately contact guardians who failed to file required follow-up paperwork.

“Nothing would have happened before,” Petrille said. “The statutes that exist right now do not prescribe a penalty.”

Bucks had no exact figures on adult guardianship available on Tuesday. Some of the cases stretch back decades, Petrille said.

The National Center for Court Statistics believes more than 1.5 million Americans are under adult guardianship, though that’s only a guess, officials admit.

“We’ve tried to collect these statistics,” said Brenda K. Uekert, director of the Center for Elders and the Courts for the NCCS, based in Washington, D.C. “I wish I could say the situation is improving, but it’s not.

“Only two states keep a record of financial assets held under guardianship — Minnesota and Idaho,” Uekert continued. “In those two states, we found more than $1 billion in assets under control. People take advantage of the system all of the time.”

In 2014, the Social Security Administration commissioned a NCCS study on adult guardianship cases and government payouts to court-appointed guardians. Two-thirds of court officers surveyed said they didn’t know how much of the Social Security benefits paid to an incapacitated person was going to guardians.

Nationwide, most court officers surveyed said they didn’t require criminal background checks or review credit reports on prospective guardians.

Responding to such concerns, Pennsylvania’s Supreme Court commissioned a 38-member elder law task force. In November, the task force released a 284-page report with 130 recommendations for attorneys, caregivers, county administrators, courtroom clerks and judges.

The list includes new standards for guardians who could be subjected to criminal background and credit checks, periodic reviews and mandated training on liability and ethics.

The task force recommended professional certification for so-called “professional guardians,” caring for more than two persons at a time, and legal guidebooks for Pennsylvania’s judges.

Falls District Judge Jan Vislosky said she’d love some guidance. Legal disputes involving the elderly can be among the most difficult cases, Vislosky said.

“We have established guidelines for the mentally disabled and physically disabled,” Vislosky said. “If there were some tips for us and some direction, then that would make things easier.”

The district judge described a recent landlord-tenant dispute. The case involved an older woman sharing a home with her adult children.

The older homeowner alleged she was being denied access to her kitchen, but the adult children, renting part of the home, told the judge their mother had a history of leaving the stove on.

“If I start to dive into these issues with questions, then I start to take on the role of counselor or adviser,” Vislosky said. “As a judge, I have to maintain a judicial distance.”

At the same time, the courts need to be careful about regulations imposed on guardians, Petrille said.

“We don’t want compliance regulations to be so strict and so onerous that it keeps people from guardianship,” said Petrille. “We don’t want people to throw their hands up and say I can’t do this anymore.”

Also, families aren’t trained on how to handle the guardianship paperwork, Uekert said. “If you were in charge of your mother’s or father’s estate, could you file a decent audit of the finances?”

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Who's guarding the guardians of the elderly? Pa. courts urge action