LANSING — Glaring deficiencies in the state’s guardianship system
were detailed in a Michigan House Judiciary Committee hearing, where
state Attorney General Dana Nessel and others gave testimony on proposed
reforms.
“We should be ashamed at how we treat the elderly in
this state,” Nessel said Tuesday, appearing alongside select members of
her Elder Abuse Task Force. “This package of bills is not just a good
idea. It is quite simply a moral imperative.”
Elderly and disabled
residents have been assigned guardians without their knowledge, probate
court judges have selected professional guardians and conservators to
manage a vulnerable adults’ affairs instead of assigning a qualified
family member, and once in the system it can take months for a person to
extricate themselves from unnecessary oversight, Nessel said.
Examples of systemic oversight deficiencies have emerged statewide.
For
example, in 2017 a Leelanau County probate judge granted an emergency
petition to have a professional guardian appointed for Martha Rothaug,
over objections from her daughter, Jen Rodgers. The appointment occurred
despite Rothaug’s earlier move to grant Rodgers power of attorney and
patient advocate status.
Rothaug was moved out of her home in
Suttons Bay to first one then another assisted living facility, without
Rodgers knowledge or permission, court documents show.
The AG’s office is reviewing the case, documents show.
And
in 2020, an Emmet County probate judge appointed a professional
guardian for George Pappas, a 95-year-old World War II veteran of Harbor
Springs, after he said he needed help getting his car fixed and doing
some simple bookkeeping.
Elise Page, who court and police records
show made withdrawals of cash from Pappas’ bank account and used a bank
card from his account to pay for purchases at Victoria’s Secret, fast
food restaurants and a vape store. Earlier this year Page was arraigned
on fraud charges and pleaded guilty to embezzlement.
A sentencing hearing is scheduled for July 2 in 57th Circuit Court, records show.
“It
sounds like a Netflix drama, doesn’t it?” Nessel said. “But it’s not.
It’s something that has happened right here in Michigan.”
National
controversies over high-profile cases involving celebrities — singer
Britney Spears, actor Amanda Bynes and disc jockey Casey Kasim have each
had court-appointed guardians, conservators or both — have brought new
awareness to a system advocates in Michigan have been trying to reform,
with little success, for decades.
In 1990, after a national study
of 22 states found guardianship petitions filed in Michigan far exceeded
other states, the State Bar’s Elderly Law and Advocacy section asked
the Michigan Supreme Court to create a task force on guardianships and
conservatorships.
It took six years, but in November 1996, the
court appointed probate judges, probate court registers, lawyers and
professors to a 25-member Task Force on Guardianships and
Conservatorships. The group was to “examine how the judiciary,
legislature, and executive branch agencies can better protect the
interests of those for whom guardianship is sought.”
About two
years later, 11 recommendations were unanimously adopted, records show,
and resulted in minor legislative amendments to the Estates and
Protected Individuals Code, officials said.
In 2005, then-Gov.
Jennifer Granholm created an Elder Abuse and Neglect Task Force,
appointing 15 attorneys, law enforcement officers, insurance
administrators and finance experts who, a year later, issued a report.
“In
the case of guardians and conservators, standards need to be
implemented,” the report stated, though few specifics were identified in
the 53-page document and the legislature took no action on even minimum
standards or basic certification.
Nessel created her Elder Abuse
Task Force in 2019 and the proposed legislation, which Committee Chair
Graham Filler (R-Dewitt) said was a “starting point,” is at least
partially the result of information gathered by task force members
during the past two years, she said.
If passed, the new legislation would add certification requirements
to professional guardians and conservators, change the timeline of
mandatory visits from quarterly to monthly, require probate court judges
to provide written justification whenever a professional guardian
instead of a family member is appointed, among other reforms.
But not everyone supports the changes.
Filler
said further hearings on the proposed legislation will be scheduled
throughout the summer and into the fall and reported that members of the
Michigan Guardianship Association had both stated their opposition to
the bills and asked to testify at a later date.
Lake County Public
Administrator Nathan Piwowarski offered no opinion on the proposed
legislation, but said he observed “frankly troubling” variations in how
guardianship and conservatorship cases were handled from one probate
court judge to another.
“Taken as whole, elders’ legal rights vary
depending largely on the accident of where they live or where the
petition was filed,” Piwowarski said.
Nicole Shannon, an attorney testifying on behalf of the Michigan Elder Justice Initiative, agreed.
“I’ve
been doing these cases since before the ink was dry on my bar card,”
Shannon told the committee. “The problem we keep coming back to is it
really depends on whose courtroom you are in and that individual judge’s
opinion of what (guardianship) looks like.”
Guardians and
conservators are appointed when a probate court judge determines a
person no longer can handle their personal affairs, whether because of
age, illness or physical or mental disability.
Guardians generally
are in charge of medical and hosting decisions, while conservators
handle financial decisions though some probate court judges assign both
tasks to guardians.
Probate court judges have participated in task
force committees, said St. Clair Probate Court Judge John Tomlinson,
president-elect of the Michigan Probate Judges Association.
The
MPJA, which counts “nearly 100 percent” of the state’s probate court
judges among its members, supports reforms in theory, Tomlinson said. He
went on to criticize certain reforms as “problematic” that would “clog
up the system.”
For example, the proposed legislation would
require courts to set a second hearing date if there are objections at
the initial hearing — a provision aimed at protecting vulnerable adults
and their families from unnecessary appointments, but which Tomlinson
took issue with.
“Requiring us to set matters for a second hearing
would simply clog our dockets and prolong these situations for
everybody concerned,” Tomlinson said.
Securing the support of
probate court judges in the implementation of any passed reforms was one
thing several speakers, both members of the committee and among those
testifying, agreed on.
Rep Doug Wozniak (R-Shelby Township)
suggested a certification process for judges. In 2019 he recommended his
constituents protect themselves with legal documents naming a patient
advocate and a power of attorney, rather than risk a court appointment.
“I
can see where you’re going, to have the guardians and conservators (be
certified) but so many times I see the judge make up his own rules as he
goes along, opposite of statute,” Wozniak said. “So, if I had a comment
on this, a question, what can we do with the judges to make sure that
this program succeeds because without them, it doesn’t go anywhere.”
“I think you hit the nail on the head,” said Katharyn Barron, an assistant attorney general and chair of the task force.
