by ESTELLE SLOOTMAKER
Nicole Shannon, systemic litigation and advocacy attorney for the
Michigan Elder Justice Initiative, and Alison Hirschel, director and
managing attorney of the Michigan Elder Justice Initiative.
This article is part of State of Health, a series about how Michigan communities are rising to address health challenges. It is made possible with funding from the Michigan Health Endowment Fund.
Very few court-appointed guardianship cases reflect the plot of the popular Netflix movie "I Care a Lot," in which Rosamund Pike plays a predatory guardian who makes a living swindling the elders she's supposed to protect. However, similar situations are still unfortunately common enough that many Michigan providers and activists are working hard to ensure the guardianship system effectively serves Michigan's older adults.
When any adult becomes incapacitated, a Michigan county probate court can appoint a guardian to take care of the individual's needs. A similarly appointed conservator takes care of an incapacitated adult's property. One appointee can serve as both guardian and conservator. While most guardians and conservators do their jobs well and without issue, there are still many cases in which the incapacitated adult has deep concerns with their guardian or conservator's behavior.
Alison Hirschel is director and managing attorney of the Michigan Elder Justice Initiative (MEJI), elder law attorney at the Michigan Poverty Law Program, and serves on Michigan's Elder Abuse Task Force. The task force is comprised of more than 100 individuals representing 55 organizations who are dedicated to addressing abuse, neglect, and exploitation of Michigan's vulnerable older adults. One focus of the task force is making sure that court-appointed guardianships and conservatorships truly serve the people they are supposed to protect and support.
"Truly, we have so many of these cases," Hirschel says. "Many of our clients are concerned about how their guardians are spending money. Because there aren't adequate financial reporting requirements for guardianship, this can lead to real distrust and, sometimes, real problems with the guardianship. We also have cases where the guardians aren't spending money that needs to be spent. They're not paying their nursing home bills or their mortgages. We have many family members who contact us because they've been passed over to serve as a guardian."
For example, one older man who was both blind and deaf lived very successfully on his own. When a petition was made to appoint him a guardian, the court did not obtain an interpreter who could speak for him or to him. The judge could not appreciate how much capacity the man had and appointed a guardian. With MEJI’s help over the course of several years, the man's case was finally heard by the Michigan Supreme Court.
"He's now in charge of his own life and living independently as he had before," Hirschel says. "He got caught in the system because no one gave him a way to communicate, to express that he had capacity to manage his own life as he always had. There are lots of stories like that."
While designed to protect people who cannot care for themselves, guardianship, when abused, strips the ward of their most basic rights: where they live, what medical care they receive, what activities they take part in, and who they spend time with. One way adults of all ages can avoid court-appointed guardianship is to file an advanced medical directive that names one’s own choice of a medical patient advocate. (Many guardianship cases arise out of medical necessity.)
Hirschel notes that emergency and temporary petitions for guardianship are often granted quickly and with little oversight. When a court agrees to hear an emergency petition, decisions can be based on limited evidence. The person at the heart of the petition doesn't have a good opportunity to respond and the law does not require other interested parties, such as family or close friends, to be informed. And the current statute does not define what constitutes an emergency.
"Right now, an emergency is really in the eyes of the beholder," Hirschel says. "That might be okay if it were a true emergency and it was a short-term solution. But very often we see those emergency appointments turn into permanent appointments. That means the person has lost the right to make decisions about their life for the rest of their lives."
The long road to better guardianship guidance
Since the '90s, the state of Michigan has explored and enacted many reforms to its guardianship and conservatorship statutes. When the Michigan Department of Attorney General launched its Elder Abuse Task Force in 2019, guardianship and conservatorship became one focus of its work.
A few of the task force's many initiatives include limiting the number of wards per guardian; refining emergency petitions for guardianship/conservatorship to promote due process rights and ensure no less restrictive alternatives exist; ensuring that lawyers assigned to these cases spend quality time meeting privately with the vulnerable adult; requiring training and certification of professional guardians; increasing guardians’ visitation requirement to monthly; making sure family members are not passed by when appointing guardians; and improving protections for people when professional guardians seek to remove them from their homes. Many of these were introduced to the Michigan legislature in June 2021 through a package of four bills each in the state house and senate. If passed by the legislature, the bills will implement the remainder of the task force's first nine initiatives.
"[The package of bills] puts into law the factors that judges should look at in guardianship cases," Barron says. "It is before the legislature now and we are expecting a decision on it soon."
Barron and Hirschel agree that many of Michigan’s professional guardians do right by their wards. In fact, input from these professionals was considered as the various initiatives were drafted. However, more help is needed to protect vulnerable adults of all ages from the few predatory professional guardians — and family members — who seek their own financial gain or neglect those in their charge. One grievance Hirschel often sees in her work is wards forced out of their homes and into long-term care facilities. Guardians find it much easier to place a ward in a facility where others attend them 24/7 and there’s only one bill to pay each month.
"We often see people who want more than anything to remain in their home," Hirschel says. "As soon as the guardian is appointed, in very short order, they get moved out of their home. Once they lose their home, they lose almost all their possessions and they're living in an assisted living facility or a nursing home with hardly anything from their entire life. It’s heartbreaking."
Closing gaps and ensuring safeguards
When handled correctly, a county probate court appoints a guardian or conservator when there is clear and convincing evidence that an individual cannot make informed decisions about their welfare and safety and when there is no less restrictive alternative. Family members or others close to the person are supposed to be the first considered as guardians.
"The system as it is right now, if it was fully implemented, would work. But I'm not convinced that [the laws] are fully being implemented," says Steve Burnham, guardianship diversion project co-chair, head of the Probate Registers Association, board member of the Michigan Guardianship Association, and former Kalamazoo County probate register. "I dealt with thousands of these cases every year. I don't think there's any one, single answer. It's a multitude of things. The changes that are being talked about can be good. But if we don't enforce the rules that are already there, what makes us think we're going to enforce any new rules?"
Burnham would like to see more funding for court staff to more aggressively investigate cases before guardians are appointed. During his years in probate court, family members were routinely sought out before professional guardians were appointed. And he has seen more problems with family members taking advantage of wards than professional guardians.
"The question is: how do you protect the wards, whether it be a public guardian or family?" Burnham says. "How do we protect vulnerable adults from any court-appointed fiduciary?"
Burnham and Hirschel co-chair a new task force subcommittee that is planning a guardianship diversion program. When implemented, this program will help ensure that guardians are appointed and monitored appropriately.
"We're concerned about all petitions for guardianship and conservatorship," Hirschel says. "We know that there have been problems across that whole process."
For more information on elder abuse and the State of Michigan Elder Abuse Task Force, download its brochure.