Families tread carefully through maze of guardianship

In the United States, all adults are considered legally capable of making decisions regarding their personal and financial affairs unless a court of law determines otherwise.”

— National Association for Court Management, "Adult Guardianship Guide"

Bill Lee

This story is about the otherwise.

Bill Lee, a World War II veteran, “worked like a donkey” his entire life. By the time he collapsed alone in his Roanoke County house in 2014, Lee owned $5 million worth of rental homes; vacant lots crammed with cars, trucks and construction equipment; and warehouses stuffed with a lifetime of deal making.

Now at 86, Lee is forbidden by law to step onto any of his properties, including the home he lived in for nearly 50 years, unless his family permits him to do so. Lee signed a legal document several years ago expressing his desire for his family to manage his affairs. Now he thinks they are mismanaging his holdings.

A judge disagrees. And as doctors testified during two days of hearings and through a stack of depositions in two court files, Lee’s brain can no longer process indisputable evidence that runs counter to his beliefs.

Lee dismisses that medical verdict and is appealing the judicial one. He clings to one fact he’s certain is true: This is no way to treat an old man.

Last year, guardians, whether family members or public agencies, directed the lives of 10,356 Virginians. The number of people requiring guardians has increased with each passing year and has risen nearly 50 percent since 2011.

Lee has wealth, though he’s spent more than $100,000 of it on lawyers this year alone, and he has family willing to care for him, though he doesn’t want them to.

Just the opposite can be found a half-hour drive from Lee’s room at the Virginia Veterans Care Center. A handful of elderly patients make their home at Catawba Hospital because they have no place to go, and no money or family to look after their welfare. They need what Lee has but doesn’t want: someone authorized to make decisions for them.

Like Lee, they are no longer capable of managing their own lives. But unlike Lee, they’re paupers, and no one they know is willing to help. So they wait at a psychiatric hospital, long after they are ready for discharge. They’ll stay there until someone dies and frees up a slot in the state’s public guardianship program.

State policymakers say this is no way to treat old people.

Virginia lawmakers agreed in February to spend up to $500,000 to figure out what types of services are needed in the Roanoke and New River valleys so elderly people with dementia and other mental illnesses can live in homes or other community settings rather than at a state psychiatric hospital.

Though the study is due in November, the state Department of Behavioral Health and Developmental Services has yet to hire a consultant.

“One of the big issues is for folks who can’t make decisions on their own,” said Catawba CEO Walton Mitchell in an interview earlier this year. “There are not enough guardians to go around.”

What is a guardian?
Whether your net worth is counted in a series of skimpy zeroes or seven fat digits, when a brain illness robs you of your capacity to care for yourself and your affairs — even if you think you still can — a judge may decide who’s the guardian of your health and who’s the conservator of your money.

The same person can fill both roles, especially if an estate is simple.

Guardians and conservators aren’t reserved solely for the elderly. Parents file petitions when their children with intellectual or developmental disabilities become adults so that they can continue to communicate with doctors and teachers and to protect their children’s income from swindlers and debtors. Other families seek limited control of loved ones with relapsing serious mental illnesses so they can more easily compel prompt medical intervention.

Before someone is stripped of his right to be the boss of himself, a guardian ad litem looks at how well he or she functions and recommends to a judge how much authority should be placed in another person’s control.

“When someone is demonstrating any level of cognitive impairment, memory loss, whether it’s actually dementia or a brain injury or mental illness, especially within the context of guardianship actions, we are having to balance the needs and rights of the individuals, but we’re really trying to assess what are their abilities and what abilities are compromised,” said Roanoke attorney Rhona Levine, who is president-elect of the Virginia Academy of Elder Law Attorneys.

“The important issue here is that it’s not all or nothing,” she said. “Very often, especially in the frail elderly, it’s going to be complete.”

At times, the Adult Protective Services Division of the Department for Aging and Rehabilitative Services will recommend that people need guardians, mostly because they no longer can safely care for themselves. Last year, the agency substantiated 10,109 reports of negligence, abuse or exploitation; more than half were due to self-neglect.

Professionals who work with the elderly say that, ideally, people would have the foresight when they’re well to execute legal documents expressing how they wish to be treated if stricken with a brain illness, and their families would harmoniously respect those wishes.

Public guardians
Sometimes no family or friends are willing to serve as guardians, and the person who needs help lacks financial resources.

Nearly 20 years ago, Virginia created a public guardian program to serve this need, which continues to grow. Last year, lawmakers added $500,000 to the budget to care for 100 more people, and for the first time the program reached into every corner of Virginia. The program can serve 706 clients; another 884 people were on a waiting list.

When the program began, Family Service of Roanoke Valley was named to run one of three pilot projects.

“It was a brand new concept back in 1997 that an agency would be a guardian rather than a person,” said Cathy Thompson, who oversees Family Service’s guardianship program. She and her staff serve as guardians for 70 people, placing them in group homes, assisted living facilities or nursing homes, and then coordinating health care and services.

“Most of our clients back then were elderly and in nursing homes. That’s not the case today. We have a lot of younger individuals, and they are not necessarily in nursing homes,” she said. The public guardians play a vital role in moving people of all ages out of the state’s training centers in order to comply with a Justice Department order.

“With all guardian clients, we include them as much as possible in making decisions, whether we show them pictures or have a conversation they will forget in 30 minutes, or misconstrue,” she said. They also try to establish a “values history” to figure out what the client was like before he needed a guardian. This is important when it comes to making decisions for someone else.

Thompson said they seek to substitute their judgment so that it mirrors choices the person would have made, rather than to opt for what they might think is in the person’s best interest.

“We strive for the substitute judgment because that’s including the person in as much as possible,” Thompson said. “They’ve not been awarded a guardian for a happy reason. It’s because they’ve been abandoned or mistreated or had a mental illness or kind of walked off the job. So we always have to be mindful of not assuming what the circumstances were because we truly don’t know.”

For tough decisions, especially those involving end of life, Thompson turns to a team of physicians, attorneys and ethicists.

“I’ve never had anybody we had become guardian over who has an advanced directive,” she said. “To do all that, you have to be mentally stable and competent.”

And, she is always on the lookout for a family member or friend to step into the role.

“Family members in the beginning might be fearful of accepting a guardian role because they think they’ll be financially responsible,” she said. They won’t be. Sometimes someone will step forward, she said. “We also have had families say we don’t want anything to do with this person.” (Continue Reading)

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Families tread carefully through maze of guardianship