I am writing in response to the ADN’s Oct. 27 story regarding the challenges being faced in the guardianship system. Many of the issues raised in the piece were inaccurately explained or lacked a proper factual basis. Much of this is understandable because guardianship and the guardianship system are complex and cannot offer a soundbite explanation.
A guardian is entrusted with making all decisions of consequence on behalf of an individual that a court has deemed “incapacitated.” Appointing a guardian results in the taking away of an individual’s rights to make their most intimate life decisions and financial decisions. Guardianship is the greatest restriction on individual liberty short of incarceration. A guardian is delegated immense power by the court — and that power comes with immense responsibilities.
I want to begin by properly framing the overarching issue: The problems inherent in the guardianship system go beyond any single administration, agency or private provider. It is a multifaceted problem that has snowballed over a decade.
First, the guardianship system is supposed to be a primarily private system. The article failed to provide this basic information. When the Alaska Legislature created the Office of the Public Guardian in the early 1980s, it intended that it would remain a small advisory entity that would lend its expertise to private guardianship providers. The Public Guardian actually has a legal duty to continue to find a private guardian. Alaska Statute 13.26.720 states: “The public guardian, when appointed as guardian or conservator, shall endeavor, for as long as practical, to find a suitable private guardian or conservator for the public guardian’s ward or protected person.”
Second, the Public Guardian, like any other appointed guardian or conservator, has no unilateral power to transfer a client to a new guardian or conservator. It all requires a court process with full court oversight and review, because only a Superior Court judge can appoint, substitute or dismiss a guardian or conservator, whether it is the Public Guardian or a professional or even a family member.
When making those decisions, the law requires the judge to consider an appointment to the Public Guardian as the last resort. Family members, friends and private professionals are required to be given priority and, if suitable, appointed before the Public Guardian should even be considered.
Third, we are concerned that the story didn’t focus on and ask the real questions plaguing guardianship in Alaska. Have the statutes been followed properly over the last decade? Is there an over-appointment problem of guardianships and conservatorships that has led to our state’s current crisis?
While it is true there are people in need of a guardian or conservator, Alaskans should be equally concerned about whether this process is being overused, even if it is being done so with the intent to protect. If you are under full guardianship, you have no legal authority to sign a cellphone contract, set your own medical appointments or even decide where you want to live. The basic life decisions most of us take for granted as adults in our country are no longer yours to make.
Guardianship ethics require a guardian to work with a protected person to maximize their autonomy and independence. Guardians are supposed to be able to focus on what the person can do, not what they can’t. This has simply not been occurring at the Public Guardian due to the size of the caseloads. Public guardians have been forced to move from emergency to emergency with barely enough time to address basic needs, and we believe as a public agency our clients deserve the guardianship services the law and our ethics require. To do that, public guardians must have a caseload that allows them to address the clients as people they have committed to help.
Overwhelming the Public Guardian means that almost 1,600 people, whom the court have declared need our protection, will not get the protection they deserve.
Fourth, it is important to recognize that there are inherent barriers to a guardian getting what their client needs. From the obstacles of not being able to get an accurate Social Security number, a client not being Medicaid eligible due to owning property that needs to be sold, to the frustrations with financial institutions not accepting legal orders and everything in between. The story fails to convey that many of the challenges experienced by Cache Integrity and complaints lodged are about things wholly outside of the guardian’s control. The Office of Public Advocacy and private guardians deal with the same challenges on a daily basis.
From an outside perspective, someone simply sees that a client did not receive benefits and debt is accumulating. But it is the specific financial situation of each client that drives what can be accomplished. This is not to say that Cache Integrity didn’t drop the ball in certain cases. But one should be cautious about making that conclusion without knowing the specific facts of a case.
Fifth, Beth Goldstein’s response — “Tom, this is exciting” — was to the prospect of a nonprofit entering the field to help Alaskans who need a guardian.
The story failed to acknowledge that Cache Integrity actually agreed to waive its opening fees for many of the 45 cases involved. Thus, the $1,000 fee didn’t even apply to those cases. It also failed to acknowledge that the Public Guardian is required to charge those equivalent fees under the law.
This information made it appear as though Goldstein was taking delight in people being charged $1,000. This is simply not true. It was disappointing to see such a baseless inference being made.
One question that could have been asked is why the court kept appointing clients to Cache Integrity until its caseload exceeded 100. Another is why Tom McDuffie accepted those appointments when he didn’t have to. The simplest answer is probably the most likely: Everyone was doing the best they could to provide services to vulnerable Alaskans despite a severe lack of certified public guardians in the state. The story certainly highlighted why overloading a guardian is counterproductive.
Finally, the story didn’t properly acknowledge the good news on the horizon. The administration in cooperation with the legislature has given OPA six additional public guardian positions, as well as two eligibility technician positions. Once certified, these positions will ensure OPA is sufficiently staffed and there will be a buffer in place when a resignation occurs. It took a great deal of effort to be able to accept cases on the Kenai Peninsula despite recently losing two certified public guardians. By January, OPA should be able to accept a limited number of guardianship appointments in most jurisdictions. The moratorium is accomplishing what it intended even sooner than expected.
Guardianship is complex, difficult and specialized. It is challenging to distill the issues within the guardianship system into a digestible narrative. However, it should be emphasized that public guardians are dedicated public servants who want nothing more than to help people. If the Public Guardian collapses, there will be 1,600 people without guardians. That is what Beth Goldstein and I are working to prevent every day.
James E. Stinson is the director of the Office of Public Advocacy.
Full Article & Source:
OPINION: ADN coverage didn’t reflect guardianship’s complexity
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