Saturday, October 14, 2023

On the Perils of Adult Guardianship, An Industry Rampant with Fraud and Abuse

Court-appointed guardians have few qualifications, little oversight, and enormous potential for exploitation.

By Diane Dimond 

The idea of taking care of family and fellow citizens who cannot physically or mentally support themselves has long been a part of the fabric of American life. But somewhere along the line, that noble notion began to fade. Following World War II, young people in extended families began to move away from rural homes in search of postwar opportunities in big cities. At the same time, many left childhood inner-city areas in search of stylish suburbs. The traditional multigeneration style of living—a daughter and her husband and children living with grandparents, for example— as diminished as the younger folk chose alternatives to staying close to home. Cultural and economic developments during this time, coupled with major advances in medical care, resulted in longer life expectancy, and the number of elders who had been left alone soared. Society then turned to the courts to help these at-risk citizens. That is when the long-established legal process known as guardianship began to morph into something it was never meant to be.

The adult guardianship system we know today was originally established during the early twentieth century. Called conservatorship in some states, it is a court-initiated and court-supervised system that was designed to help the nation’s most vulnerable citizens who cannot care for themselves. Many of these arrangements are made necessary after a family quarrels, sometimes bitterly, over what is best for their at-risk loved one, be they an elderly parent, a sibling with a mental illness, or a relative living with a physical or intellectual disability. When a concerned family member turns to a lawyer for help to settle the dispute, the outcome can be shocking. The client may be led to believe that a judge will name them to the position of guardian, but once in court, reality hits. After hearing about the family’s dispute, the judge might appoint a rival family member to be guardian. But when there is family strife, judges frequently rule that the situation is “dysfunctional” and they appoint a for-profit outsider to be the guardian. The relative who initiated the guardianship might argue against appointing a professional by explaining to the court that only they know the dependent person’s deepest desires and what they had planned for the future. They may inform the judge that their name is specifically mentioned in an existing will, a trust, a power of attorney document or an end-of-life directive. But often none of that matters, because in this astonishing world, the court and its appointees can simply ignore previously prepared legal documents if it is determined that they are no longer in the vulnerable person’s “best interest.” Suddenly, the family member who sought a solution from the court realizes the system has turned on them, and henceforth an outsider will be in charge, a total stranger who makes their living controlling the lives and finances of so-called wards of the court. Welcome to the part of the justice system where the usual criminal and civil rules of procedure simply do not apply.

The criminal justice system is predicated on the idea that a person is “innocent until proven guilty,” but in a guardianship or conservatorship court, that is not the standard. Rulings are based on whether a person is seen as “incapacitated.” Too often there is no presumption that a potential ward has the capacity or is competent to handle their own affairs, for if an attorney brings forth a petition declaring someone to be mentally deficient, judges who hear guardianship cases tend to take their word for it. Frequently and frighteningly, these declarations of mental impairment are not accompanied by any definitive or trustworthy medical findings.

Before an adult is conscripted into this system, a judge must be presented with a “petition for guardianship” and agree that the person in question is incapacitated by either a mental or physical condition and unable to adequately take care of themselves. After that finding, all life decisions automatically transfer to the appointed guardian (defined as someone who manages all health and welfare decisions for another), and/or a conservator (a person who oversees a ward’s finances). Family and friends come to realize that every aspect of the “protected person’s” life will be decided by someone else. Wards are, for all intents and purposes, held captive to the will of another. For some dependent citizens this is a positive step. For too many it is exactly the opposite.

Initiating the guardian or conservatorship process is unbelievably simple. All that need be done is for a lawyer to draw up a petition for guardianship and present it to the proper judge.1 In recent years, attorneys have begun to more frequently insert the word “emergency” in the title of the document. An “emergency petition for guardianship” asserts that the prospective ward is in imminent danger and in immediate need of protection from either self-harm or outside exploitation. In the rush for a ruling (because it’s an emergency!), no time is taken to vet the petition for accuracy. The judge simply takes the word of the officer of the court who filed it. The petition’s allegations about the would-be ward’s situation or their family members’ behavior can be exaggerated, contain mere suspicions, or be outright false. My investigation into the system revealed there is no shortage of attorneys willing to fabricate facts on these petitions. They know busy or uncaring judges will likely just rubber-stamp their request. And due process is routinely nonexistent, especially during hearings on emergency petitions. There is no jury involved. No witnesses are called to refute the petition’s accusations. The targeted person is not even in the courtroom to be seen by or speak to the judge, and family members of the proposed ward often have no idea that a legal proceeding is being held. While these emergency guardianships are temporary, they nearly always become permanent.

Cases involving a nonemergency petition are more cumbersome and take more time to conclude. In those instances, the judge usually orders psychological testing, in-person interviews with both the at-risk person and individuals closest to them. The judge may entertain listening to arguments from lawyers hired by family members opposing the guardianship. There are no reliable statistics on how many of these emergency or nonemergency petitions are rejected by judges, but the number is believed to be small.

Once a person is placed under either type of guardianship—temporary or permanent—their money and material goods are confiscated and they are stripped of their civil rights. Among the many restrictions: they are not allowed to access their money, freely travel, vote, sign a contract, marry or divorce, have a baby, choose where to live, or decide when to go to church, go shopping, or go to a doctor. Many wards find themselves isolated in their own homes or involuntarily moved into assisted-living situations. Currently, there are only a few states that allow guardianized adults to choose their own lawyer; instead, the judge appoints one for them, and the role of that attorney is murky. Are they there to truly represent the ward’s wishes, or are they appointed to decide what is in the “best interest” of the conscripted person? Once in the system, the ward has fewer rights than a prisoner on death row. It has become a shameful, yet tolerated, fact of life in America, and it has gone on for decades.

Perhaps most frightening is the knowledge that a guardianship can target anyone and be initiated by any outside party. The petitioner who starts the process could be a family member, but they could also be a social worker, an angry neighbor, a business rival, a former lover, a real estate agent or antiques dealer who has their eye on your property. In one outrageous case in Rockwall, Texas, a local mechanic claimed an elderly local doctor owed him $40,000 for unpaid work, and he filed an application for guardianship with the court. The judge never laid eyes on the doctor nor alerted his family to the proceeding. There was no hearing or medical evidence presented. Despite this obvious lack of due process, the judge granted the mechanic’s request to become the guardian. The doctor’s family was forced to spend some $100,000 in legal fees for a lengthy fight to undo the mess.

This is no small problem. Best estimates from the National Center for State Courts put the number of adult Americans under active guardianship at 1.5 million, but that does not include those consigned under the banner of conservatorship. And that number is from a 2011 analysis. Informed reform advocates—particularly those who have been ensnared in abusive guardianships and have spent years trying to get corrective state and federal laws passed—believe the correct figure is now closer to two million people. Just what percentage of these wards are subjected to an exploitative guardianship is not known. Reliable and up-to-date statistics are impossible to come by because no organization or state or federal government entity keeps an official tally of those citizens who have been ordered into this system and thereby stripped of the right to make decisions about their own lives. An exhaustive investigation by BuzzFeed News in September 2021 concluded that at the pace the population is aging, there could soon be as many as two hundred thousand new guardianship cases opened in the United States each year. And, of course, for nearly every guardianized person, there are multiple family members and close friends who are also affected by this sometimes-heartless system.

Life under guardianship or conservatorship has changed considerably over the decades. It has, in many instances, become a criminal enterprise that targets vulnerable people—most often those with significant wealth—and manipulates the courts into conscripting them into guardianship or conservatorship. In the process, massive amounts of wards’ assets are put into play. Consider that every year, new guardianships or conservatorships place more than $50 billion under the control of others, and with the average case lasting about six years, that makes for an accumulated $300 billion pot at any given time. This is money that is being controlled by largely unsupervised court appointees. With that much money available, is it any wonder that such a legally sanctioned system would attract the criminal element? Informed critics estimate that predatory players illegally divert multiple billions of dollars from this monstrous cache of money each year.7 Many of those billions have traditionally come from the hard-earned portfolios of older Americans, many of whom scrimped all their lives so they could leave selected heirs a healthy inheritance. Once guardianized, a large part, if not all, of their anticipated bequeathment is diverted to the strangers who operate within this mysterious guardianship system. But today the scandal is much more pervasive as the dishonest have gone far beyond targeting just the elderly. Like other scams, the victim base has grown over time to include young people who have earned or inherited substantial money; injured employees who have won sizable workers’ compensation settlements; victims of birth accidents targeted for control of their hefty medical malpractice awards; those with intellectual or developmental disabilities who receive generous monthly government disability payments; military and government workers with attractive pensions; and citizens with money who suffer from mental illness, even if it is only a temporary handicap (e.g., pop star Britney Spears). Citizens from a wide range of groups have now been unwittingly conscripted into this court-activated alternative existence.

As a journalist trained to present “both sides of a story,” I quickly learned about the veil of secrecy that envelops the guardianship and conservatorship system. Beginning in 2015, and after listening to heartbreaking stories from family members who watched helplessly as strangers took over the lives of their loved ones, my efforts to get the “other side” were almost uniformly stonewalled. In many cases, judges had established wide-ranging gag orders that sealed all court records from public scrutiny and sternly warned participants to stay mum about what had occurred during hearings. Those who refused to remain quiet faced contempt of court charges and substantial fines. For example, a woman in Santa Fe, New Mexico, who tearfully told a girlfriend about her longtime boyfriend’s guardianship case was sanctioned $25,000 after the friend posted about the situation on Facebook. When I requested interviews with lawyers who wrote and presented guardianship petitions, they demurred, citing a standing gag order. After contacting guardians or conservators to ask for comment on specific cases, I quickly learned that transparency is not a hallmark of this system. Even when there was no gag order in place, nearly all insiders shrugged off requests for comment and invoked the idea that since the mental or physical health of the ward was at issue, federal HIPAA privacy laws precluded them from providing any information.

In one of the earliest cases I investigated, family members who had been provided copies of the court docket (schedule of events) and other pertinent legal documents defiantly ignored the judge’s command to stay silent. They courageously passed on their files to me, and I began to write about the indignities and civil rights violations suffered by their guardianized mother.8 Soon, other desperate-to-be-heard individuals contacted me asking that I help expose their guardianship horror stories. These people may have lived thousands of miles apart, but their stories of guardianship exploitation were achingly similar. A nationwide pattern became evident. There were times when I marched myself into court hearings as if I belonged so as to get a firsthand look at how the system operated, only to be promptly removed. I also heard from concerned caretakers, court employees, and those who worked inside corporate guardian offices, who generously provided me with confidential information and paperwork to prove the validity of their stories. Still more anxious relatives of wards sent me shocking photographs of their loved one’s deteriorating condition under guardianship. The photos depicted massive bruises on naked bodies, untreated bed sores, withering limbs, and the blank, sad stares of the overmedicated. I received surreptitiously recorded cell phone videos in which wards tearfully begged to be rescued from their guardian’s control.

Yes, there are always two sides to every story, but in questionable case after questionable case the only response I got from the court-appointed guardianship community was either “no comment,” vague complaints about family dysfunction causing the unfortunate situation, or the rote pronouncement that that the ward was being “protected” in the eyes of the law. My eyes were telling me something different. My brain came to the conclusion that when there is institutionalized secrecy and silence, as has been the central feature of guardianship, meaningful change is unlikely to occur. To my muckraking mind this was an issue crying out for the white-hot glare of public scrutiny.

To be sure, many guardianship arrangements are truly beneficial, especially if a judge names a trusted person to be in control of the at-risk person. In fact, the majority of court-appointed guardians are family members who make sure their loved one is able to live a safe and comfortable life, surrounded by friendly faces who are devoted to their well-being. This is a best-case scenario. Yet, while it might sound ideal—a dependent person enveloped in the bosom of his or her loving clan—this arrangement doesn’t always ensure a positive outcome. The truth is that some family guardians have also been known to take cruel advantage of their guardianized relatives, stealing money or property from them, physically, mentally, and even sexually abusing them. It is rare for a judge to learn of this maltreatment because the conscripted and isolated person has no communication pipeline to reach the court. It is left to other family members to complain to the judge. That said, after following disputed guardianship cases for years now, I can report that many judges refuse to allow family members to speak in court, ordering them to hire a lawyer to address the bench for them. It is not unusual for a judge to dismiss family complaints as coming from the disgruntled, ill informed, or even duplicitous. The personalities in charge of administering this court system tend to be an insular bunch who are routinely dismissive of those who have questions or objections about the way things work.

Over the years, numerous cases have been identified in which a money-driven professional guardian deliberately aligned him or herself with the most disruptive and untrustworthy member of a family. This ensures the family fights will continue. Angry opposing relatives will file multiple complaints with the court about how their conscripted kin’s life is being negatively affected by the guardianship. They may express concern about the way the ward’s money is being spent, the foods or medicines being administered, or the guardian’s sudden declaration that certain relatives can no longer visit because they “upset” the protected person. Each time a complaint is filed, a hearing is called and the guardian must respond to the grievance in court. Time spent preparing for court, or appearing in court, or writing a post-hearing report allows the guardian to charge for more and more billable hours. With an average hourly rate ranging between two hundred to six hundred dollars an hour, it is in the guardian’s financial interest to keep the conflicts brewing. And once a guardian comes under personal attack from the family, they are allowed to hire their own attorney to represent them. They may also ask the court for a psychiatric evaluator to step in to examine the ward or even the person making the complaint. The family may insist that home health aides be dismissed and replaced, or that a certified public accountant (CPA) be hired to examine the way the ward’s finances are being handled. And guess who is responsible for paying the ever-mounting fees for all these outside players? It is the ward, as their confiscated money is used to pay all the bills. When a frustrated family member fights what they see as an unjust system, they may very well be depleting their own inheritance.

It is profoundly important to understand the complete authority that guardians and conservators have. These court appointees can wield enormous power, and they may exercise it almost unchecked. The system was originally designed to help citizens who can no longer live independently, and the overriding standard has always been to assist the ward using “the least restrictive measures,” and with an eye toward “conserving the person’s estate.” 11 But often the first step a professional guardian takes is to put all financial assets under their own name, and then to cocoon their charge away from the outside world. This means the protected person becomes completely dependent on the guardian and the support staff hired on to care for them. Lonely wards have been inaccurately told that their family and friends no longer want to see them; guardians have erroneously told home health aides that a particular relative must be kept away because they have threatened to kill the ward so they can inherit the estate sooner. If family visits are allowed, aides are often directed to hover over the conversation and take copious notes for the guardian’s edification. Guardians have been known to twist the contents of those notes when seeking permission from a judge to ban certain people from visiting. Those stripped of visiting rights are usually the same people who have complained about the guardian’s management techniques. And if the magnitude of this isolation results in anxiety for the ward, a guardian has the power to make sure prescription medications are administered. Overmedicating a ward to ensure compliance is not unusual, and with the elderly it can hasten their death.13 In many states there is no legal obligation for a guardian to stay in touch with the family about the health or ultimate fate of a ward. Guardians have been known to keep a ward’s death secret, order up cremation and keep the cremains in storage rather than pass them to a family member.14 Why would a guardian take such draconian steps? The short answer is because they can, and no authority steps in to stop them. Punishment of court appointees who engage in such inhumane acts has been maddingly rare.

Other examples of egregious guardian behavior have occurred because judges simply assign too many cases to one appointee. For example, a guardian in Florida, with more than four hundred people to keep track of, used her power to initiate Do Not Resuscitate (DNR) orders on time-consuming hospitalized wards. In one instance, her unwanted DNR on a military veteran who had difficulty swallowing was coupled with another order to cap the man’s feeding tube. He died slowly over the course of a week while helpless nurses and doctors stood by. Conversely, there are cases on record in which a guardian ignored a ward’s DNR request, kept the person alive, and thereby insured no interruption of their fees. In Ohio, a guardian assigned to care for hundreds of wards simultaneously parked his charges in nursing homes, ignored them, and then publicly asked for more clients since the nursing home staff was doing his job for him. He ultimately pleaded guilty to multiple counts of stealing from his wards and falsifying court records. A guardian in Nevada was convicted and sent to prison for stealing at least $200,000 and expensive belongings from her wards to help bankroll both her unemployed boyfriend and her gambling habit. The sadistic nature of some guardians is difficult to comprehend.

It is not humanly possible for a judge to adequately monitor the multitude of machinations within each individual case, and the number of wards grows each year. Judges who handle the guardianship and conservatorship caseload routinely complain of being overworked, underfunded, and understaffed. It is easier for them to listen to one voice—that of their own appointee—rather than entertain family members who are almost always painted as being at the crux of the problem. This needs to change. Judges stand as the creators of guardianships. They must be held accountable for what their chosen appointees do. If they need more funding to do the job properly, state legislatures are responsible for making sure that money is available. Adequate funding is ever more urgent as the so-called Silver Tsunami of aging Americans is upon us.

There is an inherent conflict of interest built into this long-neglected system. Guardians are supposed to protect the incapacitated person for as long as they need help, yet there is absolutely no incentive for them to ever report to the court that the ward no longer needs their assistance. To do that would be to deprive themselves of lucrative fees. But a guardianized person who once suffered a brain injury, for instance, can recover and overcome the need for outside intervention. A victim of a debilitating car accident can learn to live an independent life. A person with a physical disability, like cerebral palsy, may need help with transportation or navigating stairs, but that doesn’t mean they lack the mental ability to live their life guardian-free. Sadly, while it is fairly easy to establish a guardianship for citizens like these, it can be next to impossible for them to escape court control.

There are no federal laws specific to guardianships, and state laws are a mishmash. Most states do not require guardians to have a college degree in fields that would enhance their ability to perform their court-ordered duties, subjects like banking or estate planning, psychology or psychiatry, physical or intellectual handicaps, geriatric medicine, social work or family dynamics. Only in recent years have some states begun to require credit and criminal background checks before a guardian can be appointed.19 Surprisingly, many states do not explicitly prohibit chronic debtors or convicted felons from holding such a sensitive position. At this writing, only three states require professional guardians or conservators to be licensed to operate: Alaska, California, and Nevada. In the remaining states, a hairdresser or masseuse must pass a far more stringent set of licensing requirements than a court appointee who, quite literally, takes control of another person’s life.

Some state-level reforms are being adopted to improve the system, but critics uniformly agree they are Band-Aid solutions that ignore the bigpicture problems. Many believe the federal government must step in; the US Congress has held hearings on guardian atrocities dating back to 1987, yet no definitive legislation has ever emerged. That lawmakers haven’t seriously tackled the obviously systemic problems inherent to guardianship and conservatorship leaves the public wondering just who is fighting against improvements—and why.

Full Article & Source:
On the Perils of Adult Guardianship, An Industry Rampant with Fraud and Abuse

Friday, October 13, 2023

Abuse within conservatorships

by Clara Lebrón

Conservatorships have become a hot topic in the tabloids fairly recently. From Britney Spears to the most recent scandal involving retired NFL star Michael Oher, it is evident that the concept of guardianship and conservatorships are not foreign in the minds of the general public.

At their base, conservatorships are permissions that allow an adult to take responsibility and control over either the personal needs or the financial assets of another adult who is considered unable to care for themselves.

Often, these agreements help hide the presence of the physical, psychological and financial abuse being committed towards conservatees, while also permitting conservators full control over their bodies and livelihoods.

However, when discussing celebrity conservatorships, there is often a missing structural analysis that is critical to justifying the need for stricter and more regulated processes for approving this kind of drastic legal decision.

The experiences suffered by these personalities are both unjust and cruel. However, highlighting these experiences with conservatorships over those of more marginalized and affected populations that routinely encounter the threat of being found incapable of deciding what is best for themselves.

I believe that there needs to be clear medical guidelines that not only ensure that conservatees truly need the constant oversight that conservatorships offer, but also that the conservator is mentally and emotionally sound enough to take care of someone responsibly.

Although fairly commonplace in the United States, conservatorships are especially a threat to both disability rights and the wellbeing of aging Americans.

In the last few years, the number of conservatorships around the country has been stagnant but huge, with an estimated 1.3 million people being committed to conservatorships around the country right now.

Of those cases, more than a million, 85% of them are over the age of 65. Even more worryingly, statistics seem to support the notion that institutional malpractice plays a role in how these elders and others committed to conservatorships are able to be abused behind closed doors.

In 2010, a federal report detailed hundreds of cases of alleged abuse being committed towards conservatees, with most of these being linked to family members who were acting as guardians.

However, there were several cases of abuse found that could be attributed to professional conservators and the companies they work for.

In many cases, families might appoint a professional conservator if they feel they might not be able or capable of taking care of their family member by themselves. As such, these individuals are not as knowledgeable on the wants and needs of their conservatees.

The lack of autonomy that surges from either one of these conservatorship options should create a sense of worry for anyone who is concerned with equity for those who might simply not be able to communicate themselves or reason as “normally” as a judge deems necessary.

As a great majority of conservatees are of older age, not only do ageist legislative practices such as restrictive conservatorships strip away their financial and bodily autonomy, in many cases the decisions made by conservators end up changing what were supposed to be peaceful and well-deserved moments of rest into whatever the conservator decides is most appropriate.

However, it is understandable that sometimes conservatorships are necessary in order to ensure that a person is as duly protected and advocated for when looking to receive treatments or invest money.

The practice of conservatorship can obviously not be abolished. In a world where those who might genuinely not have the intellectual capabilities necessary to absorb information and use it to make informed decisions, there do need to be protections established that accommodate for their needs.

Many disability rights advocates advise that a more receptive approach to conservatee input could help lower chances of abuse within these relationships. Instead of simply needing the consent of the conservator in certain decisions, there should need to be two authorizations: one from the guardian and one from their conservatee.

Additionally, there needs to be more coverage of conservatorships that align with the circumstances that most Americans living with them are actually subject to.

Although it is nice to see how media attention tips the scale in the favor of beloved public figures, it also negates the actual problem found within conservatorships: the ease with which they can be acquired and the difficulties found when trying to break these agreements.

Full Articles & Source:
Abuse within conservatorships

Conservatorship bill signed into law with goals to fix homelessness issue in California

Senate Bill 43 will assign a conservator to someone unable to care for themselves, including those with severe substance abuse issues or mental health issues.

Author: Jeannie Nguyen

SACRAMENTO, Calif. — Governor Gavin Newsom signed a new bill into law that would make mental health treatment mandatory, which is an effort to address the ongoing homelessness issue. However, some advocates said the bill is not the right move to solving the problem.

Senate Bill 43 was authored by Senator Susan Eggman. She said this is the state moving in the right direction when it comes to fixing homelessness.

"Now we're gonna have a lot more tools to be able to actually help folks," said Senator Eggman (D) of San Joaquin County.

The bill works off of a previous law that would appoint a conservator to anyone unable to provide for their basic needs because of a mental health disorder. SB 43 would also include people with severe substance abuse or serious mental health issues. Senator Eggman said this is slightly different than CARE Court, which makes treatment optional.

"Being able to hold somebody against their will and then the 5250, holding them for maybe up to two weeks, then the potential month and then potentially being conserved for a longer period of time," she said.

Among the bill's supporters is Sacramento Mayor Darrell Steinberg.

"If the choice is using the law to make sure somebody gets help or leaving them out on the streets to be to be subjected to the worst kinds of conditions, and to be a danger to themselves or to other people, the choice is real clear to me get the person help," said Mayor Steinberg.

However, advocates like the Sacramento Regional Coalition to End Homelessness (SRCEH) said this is a violation of people's civil rights, impacting those minority communities most.

"It would disproportionately impact, particularly, African American and indigenous people experiencing homelessness," said Bob Erlenbusch, executive director of SRCEH.

Senator Eggman said civil rights won't be violated and that nothing changed in the due process. The only difference is the criteria when someone is being evaluated for treatment.

"It is my responsibility to try to make things better for Californians," Eggman said.

Full Article & Source:
Conservatorship bill signed into law with goals to fix homelessness issue in California

AARP Ohio Helps Secure State Funding to Combat Elder Abuse

By Natalie Missakian

En español | Ohio communities will soon get additional state funding to investigate reports of elder abuse, thanks in part to advocacy from AARP Ohio.

AARP successfully pushed lawmakers to include an additional $4.9 million per year for its Adult Protective Services program in the state’s recently approved two-year budget. The program handles complaints of abuse against vulnerable adults, including people 60 and older.

Roughly 1 in 10 Americans 60 and older have experienced some form of elder abuse, which can include physical, emotional and financial abuse, according to the National Council on Aging. Seniors who lack social connections or who have dementia are especially vulnerable.

The budgetary increase complements new state laws that protect older Ohioans from telecommunications fraud and create penalties when mandatory reporters fail to report evidence of elder abuse.

“For far too long, local communities have not had the resources they need to investigate when older Ohioans are suspected victims of abuse,” said Kalitha Williams, AARP Ohio outreach and advocacy manager. “This annual increase will help to ensure there are resources in place to enforce important policy safeguards.”

The additional funding is one of several wins for AARP Ohio in the 2024-2025 budget, and another example of how AARP is fighting in states around the country for funding to benefit older adults. In Indiana, we helped safeguard funding for adult guardianship programs. We also successfully advocated for an additional $1 million to better investigate nursing home concerns and complaints in Illinois.

Keep up with AARP Ohio’s advocacy work. And learn how to spot and report elder financial exploitation — the most common form of elder abuse — through the AARP Fraud Watch Network.

Full Article & Source:
AARP Ohio Helps Secure State Funding to Combat Elder Abuse

Thursday, October 12, 2023

Restoring rights — a path towards guardianship reform

by Grace W. Orsatti

Personal autonomy is a right so basic it is often taken for granted. Yet state courts routinely appoint guardians for individuals deemed incapable of making their own personal decisions, stripping them of their personal autonomy. Recently, however, thanks to Brittney Spears, Michael Oher, and other high-profile exposés, the power of court-appointed guardianships to restrict rights and civil liberties has captured the attention of lawmakers who are now positioned to implement much-needed reform.   

Guardianship adjudications do not necessarily require findings that the ward be unconscious or have advanced dementia. A variety of factors along the continuum of mental and physical decline can lead to a judicial determination that guardianship is warranted — even when the ward appears in court and testifies otherwise. Where a full or plenary guardianship is granted, the guardian may be granted complete control over every intimate health and welfare decision. Predictably, unscrupulous guardians have abused this immense and often unfettered power, to the detriment of the susceptible individuals in their control. Investigations have revealed widespread abuse and exploitation among guardians, from failure to properly provide for the ward’s personal preferences and health needs, isolation of the ward from family, disregard of the family’s wishes, and neglect or abuse.

To avoid guardianship, the Uniform Law Commission recently approved a new Uniform Health-Care Decisions Act (2023) that empowers individuals to exercise control over their own health decisions. The new act reaffirms the importance of preparing plans — in advance of a mental or physical health crisis — to retain as much decision-making authority as desired. The act recognizes that individual decision-making should be respected and supported where possible, and that viable, less restrictive alternatives to guardianship exist along the continuum of capacity. To that end, the act authorizes individuals to prepare instructions specifying their own preferences for how care decisions should be made, and makes it easier to prepare health care power of attorney documents appointing a trusted health care agent to make decisions on one’s behalf, where necessary. In so doing, the UHDA recognizes the valuable role of friends, family, or others who support an individual in making care decisions, permitting such supporters and advocates to assist in both preparing and carrying out the care recipient’s wishes and instructions.  

Within a health care power of attorney document, a care recipient may choose to give their agent power to make every health and welfare decision. However, powers of attorney can also be drafted by the care recipient to retain for themself as much autonomy as desired. This can be done, for example, by placing limits on the grant of decision-making authority, or specifying that the agent will assume a supportive role but will not usurp the decision-making authority of a care recipient who is able to make their own choices. Incorporating such supported decision-making options recognizes that lapses or limitations in decision-making capacity do not necessarily prevent all decision-making. Instead, such arrangements allow the care-recipient to maintain some autonomous decision-making where feasible and with appropriate support.  

To account for the possibility of eventual mental or physical decline, a health care power of attorney can also grant progressively increasing decision-making powers to the agent, that are triggered only if the care recipient’s condition deteriorates or declines. For example, within the power of attorney document (or series of documents), the increased grant of power to the agent might take effect only under certain conditions. In such cases, the health care agent need only make decisions when the care-recipient is unable to do so, and can otherwise take on a supportive role when the care-recipient can make their own decisions. Moreover, the new UHDA recognizes the discretion of medical professionals to find that the patient — with support if necessary — may be capable of making some decisions about their care, if not others, and that decision-making ability, even if limited, should be respected. State legislatures would do well to adopt this new act. 

To be sure, health care powers of attorney may be not be effective or suitable for every circumstance, and in some instances other arrangements, including guardianship, are warranted. In such cases, limited guardianships allow the care recipient to retain some autonomy over decisions they are capable of making, and provide a viable alternative to the total loss of liberty and control that comes with a full guardianship. Yet under some circumstances, full decision-making authority must be given to a guardian for reasons of health and safety. In such cases, adequate guardrails can ensure that susceptible people who lack capacity to make decisions for themselves are not unfairly deprived of their liberties, dignity and autonomy, or victimized by unscrupulous guardians. The Guardianship Bill of Rights Act recently introduced by Sen. Bob Casey (D-Pa.), aims to address the problem of guardianship abuse by curtailing unnecessary guardianships, bolstering guardianship alternatives, and protecting the civil rights of those in guardianships.

The UHDA and the Guardianship Bill of Rights Act tackle the problem of guardianship abuse and overuse on two fronts, and together can dramatically increase the scope of protection for those who may need decision supports but not the restrictions of guardianship, and for those in guardianship proceedings whose human dignity must be protected. If enacted, these two complimentary pieces of legislation will help to address guardianship’s shortcomings at the state and federal level, safeguarding the right of each of us to make our own decisions about our health and welfare, for an uncertain future. 

Grace W. Orsatti is an Assistant Clinical Professor at the Thomas R. Klline School of Law of Duquesne University where she directs a legal clinic focusing on estate planning, incapacity planning, and alternatives to guardianship.

Full Article & Source:
Restoring rights — a path towards guardianship reform

Read More:
Health-Care Decisions Act

Bills that would bring oversight to Michigan's guardianship system voted out of committee

By: Heather Catallo

LANSING, Mich. (WXYZ) — The 7 Investigatorshave been exposing problems in Michigan’s guardianship system for six years. Today several bills that will bring new oversight to the system were voted out of committee in the Michigan legislature and are now on their way to potentially becoming law.

Since 2017, the 7 Investigators have been revealing how easy it can be for some people to be declared legally incapacitated and put under guardianship or conservatorship. That means you lose the ability to make your own medical decisions, financial decisions, get married, vote – even whether you can have a Do Not Resuscitate order. Some families say the system can sometimes result in loved ones removed from their homes and thousands of dollars of their savings spent by strangers.

“A guardian was appointed, I didn’t know him – found out he had 400 wards,” said Christine Abood, who says her mother was placed with a professional guardian by the Oakland County Probate Court. “She died under that guardianship because of neglect.” 

Abood and other activists testified in front of the House Judiciary Committee Wednesday. 

“Anxiety and panic attacks are a new normal for me after my precious 89-year-old mother was put into a guardianship and isolated for over 14 months. For 14 months I cried myself to sleep,” said Cynthia Mifsud. 

“I think that we all have the understanding that these bills are intended to do a lot of good and hopefully prevent some of the horrible tragedies that has happened to some of your families and loved ones from happening to anybody else,” said House Judiciary Chair Rep. Kelly Breen (D-Novi). 

The bills will make several changes to the current laws, including requiring professional guardians to be certified, mandating professional guardians to visit their wards more often, and one of the bills will also create the Office of State Guardian (OSG). 

“This Office of State Guardian would be responsible for receiving complaints and investigating them against guardians and conservators who are believed to be enacting financial or other abuses on their wards. The goal is that the OSG would then work with the Attorney General’s office on complaints that did involve improper criminal conduct,” said Rep. Betsy Coffia (D-Traverse City) when the bill was introduced. 

Attorney General Dana Nessel formed the Elder Abuse Task Force in 2019, and the task force has spent the last 4 years trying to reform the laws. 

Today Nessel applauded the Michigan House Judiciary Committee for voting the bills out of their committee to the full House. 

“These guardrails are necessary to protect some of Michigan's most vulnerable residents,” said Nessel in a press release. “These reforms have been recommended time and time again, first by the Michigan Supreme Court in 1998, by then-Governor Granholm in 2007, and again just last term - with no movement. Michigan’s elderly residents don’t have time to wait for these protections to be signed into law and I applaud the House Judiciary Committee for recognizing this and advancing this critical legislation.” 

According to Nessel and the Task force, the bi-partisan legislative package will:

  • Require a judge to justify on the record why a family member who is willing to serve as a guardian is not suitable. While the law already provides that family members have priority, the modification serves as an additional safeguard to ensure family members get due consideration;
  • Eliminate a judge’s ability to prevent a challenge to an appointed guardianship/conservatorship for up to six months;
  • Require guardian and conservator certification and visitation frequency;
  • Establish a clear asset/income threshold for appointment of a conservator;
  • Set standards for the Guardian ad Litem report to the court;
  • Protect personal items of sentimental value from being discarded;
  • Establish a right to attorney throughout the proceedings;
  • Establish additional protections for individuals before removing them from their homes;
  • Improve the basic standard for medical testimony; and more.    

“I would suggest that a lot of the folks who work in the system have gone nose blind. When you come in from the outside, you smell it – there’s some things that are not right. And we need to fix it,” said Assistant Attorney General Scott Teter, Financial Crimes Division Chief for Nessel. The Michigan Guardianship Association (MGA) was removed from the task force earlier this year when the 7 Investigators revealed audio recordings of their lobbyist calling the AG’s group a ‘farce.’

Today the MGA’s Vice President pushed back against the bills during her testimony.

“MGA believes the current guardianship system in Michigan is in need of major reform and should be improved and strengthened to benefit Michigan’s most vulnerable population. However, these bills before you are not the right way to go about reforming the system,” said MGA Vice President Georgia Callis, who owns Guardian Care Inc., and according to the Attorney General’s office has 600 wards. 

Despite that opposition, all 5 bills were voted out of committee. They now head to the full House and then on to Senate Judiciary Committee. 

Task force members say they are constantly taking feedback from stakeholders and making adjustments with the legislation. They say they’re hoping to get these signed into law as soon as possible.

“We cannot rely on a system that continues to fail the people in it. And that’s what these bills are designed to address,” said Teter. 

Full Article & Source:
Bills that would bring oversight to Michigan's guardianship system voted out of committee

Nursing Home Staff Member Charged with Neglect

October 9, 2023

LANSING – Jessica Struhar, 26, of Macomb County was arraigned last week in the 42nd District Court in Romeo on one count each of 2nd degree Vulnerable Adult Abuse and Intentionally Placing False Information in a Medical Record, announced Michigan Attorney General Dana Nessel. Each count is a four-year felony.  

The Department of Attorney General alleges that during Struhar’s employment in 2021 as a Certified Nursing Assistant (CNA) at Medilodge of Richmond, a skilled nursing facility, she ignored multiple standing orders in relation to a 58-year-old resident’s plan of care during mealtime. Her alleged neglect led to a choking incident at the facility, ultimately resulting in the death of the resident. Additionally, CNA Struhar is alleged to have made several false medical records entries about the victim’s care while he was receiving life-saving care from EMS and hospital personnel. 

“The overwhelming majority of those who provide long-term care in Michigan do so with integrity and respect for their important role,” said Nessel. “But when there is a serious breach in the responsibility entrusted to them, there are criminal consequences, and my office will seek accountability.”  

Struhar was arraigned on Friday October 6th before Judge Jennifer Andary. She is next due in court for a Probable Cause Conference on October 17th.  

The Department of Attorney General’s Health Care Fraud Division receives 75% of its funding from the U.S. Department of Health and Human Services under a grant award totaling $5,196,188 for the fiscal year 2023. The remaining 25% percent, totaling $1,732,061, is funded by the State of Michigan.


Please note: A criminal charge is merely an allegation, and the defendant is presumed innocent unless and until proven guilty. The Department of Attorney General does not provide booking photos.

Nursing Home Staff Member Charged with Neglect

Wednesday, October 11, 2023

Trial begins for Chesapeake City councilwoman accused of elder abuse

The lawsuit alleges Newins abused her right as power of attorney related to the acquisition of a Virginia Beach.

Alex Littlehales (WVEC)  

NORFOLK, Va. — The Commonwealth Attorney's Office called four witnesses to testify in the first day of the elder abuse trial for Chesapeake City Councilwoman Amanda Newins in Norfolk Circuit Court Tuesday.

Newins, elected to Chesapeake City Council in 2022, faces a lawsuit from her great aunt seeking close to $900,000 dollars in damages. The lawsuit, filed in September, alleges Newins abused her right as power of attorney related to the acquisition of a Virginia Beach home off of Kempsville Road. 

Roanoke County Senior Assistant Commonwealth's Attorney Bill Braxton's first words to the selected jury were "She took advantage."

In the fall of 2020 Newins' great aunt and uncle, Shirley and Bobby Davis, moved out from their long-time Kempsville Road property and into the home of Newins and her husband. In a statement of facts submitted in previous court documents, Newins' great uncle was diagnosed with Alzheimers and late stage dementia that December. Included in this period of transition was the signing of new powers of attorney, wills, as well Newins allegedly being added to Shirley and Bobby's financial accounts. 

According to the same statement of facts, Newins acquired the Kempsville Road property after the Davises signed a Deed of Gift, which is "consistent with the desires written in their wills."

Braxton further argued Newins had led Shirley Davis to believe there was "no other option" regarding the ownership of the Davises' assets, in relation to their desire to seek medical assistance for Bobby's declining health. 

"I trusted her," Shirley Davis repeatedly stated to the courtroom during her witness testimony. 

Newins' attorney Kristin Paulding painted a different picture to the motivations behind these decisions.

According to Paulding, the Davises served as secondary parents to Newins, helping raise her throughout her early childhood and into adulthood. Davis later testified that Newins and her husband accommodated them by cooking meals for the couple and driving them to their doctors appointments. 

Following the acquisition of the Kempsville property, Newins and her husband began making improvements and repairs to the home, with the intention of having the entire family unit eventually move back in, according to Paulding.

Davis testified she was told the house "needed to be fixed" before they could go back. 

On the witness stand, Davis acknowledged she was unaware of reports of lead paint and asbestos in the house. 

The day's final witness included a notary who notarized the Deed of Gift document transferring ownership of the house to Newins, but admitted the Davises were not present at the time of the signing. 

Day 2 of the trial is scheduled to continue Wednesday, with the Commonwealth Attorney's first witness being a neurologist to speak on the declining health conditions of Newins' great uncle. 

Full Article & Source:
Trial begins for Chesapeake City councilwoman accused of elder abuse

Michiganders can report suspected elder abuse at updated website

by Mark Birdsall

The state of Michigan has unveiled a new, updated website where residents can report suspected incidents of elder abuse, patient abuse and exploitation.

Michigan Attorney General Dana Nessel announced Monday that her office, in conjunction with the state's Elder Abuse Task Force, has worked to improve the webform where concerned parties can easily and quickly file a report.

“I created the Elder Abuse Task Force in 2019 to bring together a comprehensive group of experts to ensure our elderly and vulnerable populations are protected from abuse,” Nessel said in a press release. “Part of that work is ensuring the tools we provide to the public, like this form, are accessible, easy to complete and up to date.”

According to Nessel's office, more than 100,000 older adults in Michigan are elder abuse victims, and less than half of all instances are reported to authorities. 

The updated form includes sections to identify: 

  • The person being abused or in need of assistance;  
  • The person alleged to be responsible for the abuse;  
  • If the abuse has been previously reported to other agencies; and  
  • Details of the abuse.    

The complaints are then investigated by the AG's financial crimes or health care fraud divisions, depending on the details of the allegation.

Assistant Attorney General Scott Teter currently serves as the financial crimes division chief and is also the head of the Elder Abuse Task Force. Assistant Attorney General David Tanay, leader of the health care fraud division, oversees the attorney general's Sentinel Project.
The Sentinel Project was launched in 2021 and uses specially trained staff to examine long-term care facilities for evidence of abuse or neglect through unannounced visits, which performance metrics, complaints and other data will determine. 

"The Department of Attorney General is dedicated to detecting and addressing any neglect or abuse of loved ones residing at home or in long-term care facilities," Nessel said. "Instances of substandard care must be eliminated, and The Sentinel Project helps accomplish that goal."

The Sentinel Project team recently met with Genesee County Sheriff Chris Swanson and other county leaders to discuss how state and county law enforcement agencies can work together to train and investigate allegations of elder abuse in long-term care facilities. The Sentinel Project is launching a series of law enforcement training across the state, beginning Thursday, Oct. 12, in Ingham County. 

Nessel and the task force are working with the state Legislature on a series of bills that will help strengthen guardrails to protect the elderly. The legislation, House Bills 4909-4912 and 5047, will:   

Require a judge to justify on the record why a family member who is willing to serve as a guardian is not suitable. While the law already provides that family members have priority, the modification serves as an additional safeguard to ensure family members get due consideration;   

  • Require guardian and conservator certification and visitation frequency; 
  • Protect personal items of sentimental value from being discarded;  
  • Establish a right to an attorney throughout the proceedings;
  • Establish additional protections for individuals before removing them from their homes;
  • Improve the basic standard for medical testimony;
  • Create an Office of State Guardian to oversee and certify guardians, and more.    

Michigan's Elder Abuse Task Force launched in 2019 and consists of more than 55 different organizations and more than 100 individuals in the public, private and nonprofit sections, all working together to combat elder abuse. 

The task force's achievements include the adoption of a vulnerable adult incident report form for investigation by law enforcement across the state, including the implementation of related training. Additionally, the Financial Exploitation Prevention Act was signed into law in 2021 to ensure mandated reporting for financial institutions on suspected fraud or exploitation. Both were part of the task force’s first set of initiatives.   

Michigan residents seeking elder abuse resources are encouraged to call 800-24-ABUSE (22873) or 855-444-3911 to report suspected elder abuse.

Full Article & Source:
Michiganders can report suspected elder abuse at updated website

LETTER TO THE EDITOR: Guardianships are elder abuse

By Poppy Helgren, Henderson

Separating families is traumatic and unless there are extenuating circumstances, such as abuse, should not be done.

Just as taking children from their parents is abusive, so is snatching the vulnerable elderly from their loving families.

Our country stands by idly allowing large-scale human rights abuses by allowing court-appointed guardianships of vulnerable elderly people, supposedly to protect them. Often these folks have advance directives, powers of attorney and family trusts, which end up disregarded by the courts. Many times those placed in guardianships have substantial assets. After the guardianship is placed, no longer does the ward or their family have any say in health care, personal or financial decisions.

Frequently, property is sold off to pay guardianship fees and attorneys’ fees. Nest eggs saved over a lifetime no longer remain for heirs. Sometimes professionals exploit their position to ransack the life savings of the elderly.

Even worse is the isolation that can occur when guardians use their power to keep wards away from their families. This happens every day in all 50 states.

While we won’t forget the horror of child separation, we also must pay attention to family separation that can easily occur with an unnecessary guardianship.

Full Article & Source:
Guardianships are elder abuse

Tuesday, October 10, 2023

Sen. Testin, Rep. Macco: Introduce legislation to help elderly victims of crime

Madison, WI –With incidents of elder abuse on the rise, Senator Patrick Testin (Stevens Point) and Representative John Macco (Ledgeview) have reintroduced legislation to help victims get justice. By allowing for expedited hearings and the ability to preserve testimony through a video-taped court hearing, the bill aims to reduce stress and improve the process for elderly victims and witnesses who are involved in a court proceeding.

“The justice system must be able respond to the unique needs of an elderly victim or witness,” said Testin. “This bill has broad bi-partisan support, and I believe that the time is now to pass this important reform.”

Both Senator Testin and Representative Macco were involved in Attorney General Brad Schimel’s Task Force on Elder Abuse, which originally developed the bill. Macco agreed with Testin that the bill would have a positive impact.

“This bill is essential to protect our growing elderly population,” said Rep. Macco. “With more baby boomers retiring each day, it is critical that we take steps to protect them from harm and any unnecessary delays in the court process.”

The bill will circulate in the legislature for co-sponsorship until October 5th.

Full Article & Source:
Sen. Testin, Rep. Macco: Introduce legislation to help elderly victims of crime

AG Nessel Launches Updated Elder Abuse Reporting Form, Law Enforcement Training Series

LANSING - Today, the Department of Attorney General, in conjunction with the Elder Abuse Task Force (EATF) launched an updated webform for residents to report suspected incidents of elder abuse, patient abuse and exploitation. 

“I created the Elder Abuse Task Force in 2019 to bring together a comprehensive group of experts to ensure our elderly and vulnerable populations are protected from abuse,” said Nessel. “Part of that work is ensuring the tools we provide to the public, like this form, are accessible, easy to complete, and up to date.” 

The updated form includes sections to identify: 

  • The person being abused or in need of assistance; 
  • The person alleged to be responsible for the abuse; 
  • If the abuse has been previously reported to other agencies; and 
  • Details of the abuse.   

The complaints are then investigated by the Department’s Financial Crimes or Health Care Fraud Division, depending on the details of the allegation. 

The Financial Crimes Division Chief is Assistant Attorney General Scott Teter who is also the head of the EATF. The Health Care Fraud Division is led by Assistant Attorney General David Tanay and oversees the Department’s Sentinel Project

The Sentinel Project was launched in 2021 and uses specially trained staff to examine long-term care facilities for evidence of abuse or neglect through unannounced visits, which will be determined by performance metrics, complaints and other data. 

“The Department of Attorney General is dedicated to detecting and addressing any neglect or abuse of loved ones residing at home or in long-term care facilities. Instances of substandard care must be eliminated, and The Sentinel Project helps accomplish that goal,” Nessel continued. 

The Sentinel Project Team recently met with the Genesee County Sheriff Chris Swanson and other county leaders to discuss how state and county law enforcement agencies can work together to better train and investigate allegations of elder abuse in long-term care facilities. The Sentinel Project is launching a series of law enforcement trainings across the state, beginning this Thursday, October 12th in Ingham County. 

Attorney General Nessel and the EATF are working with the legislature on a series of bills that will help strengthen guardrails to protect the elderly. The legislation, House Bills 4909-4912 and 5047, will:   

  • Require a judge to justify on the record why a family member who is willing to serve as a guardian is not suitable. While the law already provides that family members have priority, the modification serves as an additional safeguard to ensure family members get due consideration;  
  • Require guardian and conservator certification and visitation frequency;   
  • Set standards for the Guardian ad Litem report to the court; 
  • Protect personal items of sentimental value from being discarded; 
  • Establish a right to attorney throughout the proceedings;
  • Establish additional protections for individuals before removing them from their homes;
  • Improve the basic standard for medical testimony;
  • Create an Office of State Guardian to oversee and certify guardians, and more.   

Michigan's Elder Abuse Task Force launched in 2019 and consists of more than 55 different organizations and more than 100 individuals in the public, private and nonprofit sections - all working together to combat elder abuse. 

Achievements include the adoption of a Vulnerable Adult Incident Report form for investigation by law enforcement across the state, including the implementation of related trainings. Additionally, the Financial Exploitation Prevention Act was signed into law in 2021 to ensure mandated reporting for financial institutions on suspected fraud or exploitation. Both were part of the Task Force’s first set of initiatives.   

It is estimated that more than 100,000 older adults in Michigan are victims of elder abuse, and that less than half of all instances are reported to authorities. Michigan residents seeking elder abuse resources are encouraged to call 800-24-ABUSE (22873), or 855-444-3911 to report suspected elder abuse.


AG Nessel Launches Updated Elder Abuse Reporting Form, Law Enforcement Training Series

Family alleges elder abuse at Folsom nursing facility lead to 89-year-old's death

Barbara Collier escaped the Caldor Fire and was put into Brookdale Folsom Senior Living facility where her family alleges she faced physical abuse before dying. 

Family alleges elder abuse at Folsom nursing facility lead to 89-year-old's death

Monday, October 9, 2023

Maine’s constitution says people in guardianships with mental illness cannot vote. Voters can change that in November.

By Samantha Hoga 

Secretary of State Shenna Bellows urges approval of a ballot question that would eliminate “antiquated” language that is “not even legally enforceable.”
Voters stand at voting booths to fill out their ballots on Election Day.
Photo by Caitlin Andrews.

Nine words in the Maine constitution were found to be unconstitutional 22 years ago, yet remain in the state’s guiding document. Voters will decide in November if they should be removed.

Every Maine resident aged 18 and over who is also a U.S. citizen can vote, “excepting persons under guardianship for reasons of mental illness,” according to the state constitution. 

Maine’s Secretary of State Office has not enforced the prohibition on voting for more than 20 years, since a federal judge ruled that the disenfranchisement of some people with mental illness violated federal anti-discrimination laws and the U.S. Constitution.

“Right now in Maine everyone who is a citizen and a resident of our state can, in fact, vote. No exceptions,” said Secretary of State Shenna Bellows.

Maine and Vermont are the only states that do not restrict citizens’ rights to vote in some fashion, Bellows said. Some states prohibit people in prison from voting, and others prohibit convicted felons from voting.

Guardianship restricts a person’s ability to make their own decisions. Probate judges decide in Maine whether adults incapacitated by age, disability or mental illness can safely make their own decisions or if they need a guardian to make choices about housing, medications or finances on their behalf. 

Question 8 on the ballot this November asks voters if they would like to remove the phrase “excepting persons under guardianship for reasons of mental illness” from the voting rights section of the state constitution.

The constitutional amendment received bipartisan support from state lawmakers earlier this year. It will be decided by voters.

“Maine voters should vote ‘yes’ to this question to demonstrate that we are a welcoming state that upholds the principle of the freedom to vote for all,” Bellows said. “We should be very proud of that record of extending the right to vote to every Maine citizen, and our constitution language should reflect that pride.”

“My hope is that the voters will reject the antiquated language of the past that is not even legally enforceable and finally align our constitution with our principles and the law today,” she added. 

The Maine constitution has been amended 175 times since it went into effect on March 15, 1820, according to state records.

Only men could vote under Maine’s early constitution. Later the state constitution blocked paupers, people under guardianship and Native Americans from voting, until 1954 when Native Americans were given the right, leaving “paupers and persons under guardianship” exempted from voting.

In 1965 lawmakers and voters changed the constitution again, this time, “excepting persons under guardianship for reasons of mental illness.” 

Voters rejected attempts in 1997 and 2000 to remove the same language from the constitution. This November is the first time they will take up the question since a federal judge said it was unconstitutional.

The question comes before voters amid increased scrutiny of guardianships in Maine and the state’s antiquated probate court system, which is run by part-time, elected judges. 

The Maine Monitor has revealed several examples of spotty oversight of public guardianships

Voters approved another constitutional amendment to overhaul the probate courts 56 years ago, but lawmakers ignored the calls for reform. 

The question before voters this November is one small aspect of a large system that includes some 1,200 adults under public guardianship of the state Department of Health and Human Services, and thousands of people under the guardianship of family members. 

The exact number of adults in guardianships in Maine is unknown because several probate courts said they don’t track it, the Monitor reported

‘It’s due time to change’

In a landmark decision, U.S. District Court Judge George Z. Singal ruled in August 2001 the state could not restrict people under guardianship for reasons of mental illness from registering to vote or voting.

Disability Rights Center, now called Disability Rights Maine, brought the lawsuit “Doe v. Rowe” on behalf of three women who were under guardianship due to mental illness diagnoses and wanted to vote in the 2000 election. 

The federal judge decided Maine’s restriction on people with mental illness from voting was arbitrary and violated the American with Disabilities Act, Rehabilitation Act and Fourteenth Amendment of the Constitution.

“The state has disenfranchised a subset of mentally ill citizens based on a stereotype rather than any actual relevant incapacity,” Singal wrote.

Mark Joyce, a managing attorney with Disability Rights Maine, represents individuals diagnosed with mental illness. There continues to be a risk that people under guardianship will be disenfranchised because of the plain language still in the state constitution. 

“The problem that we’ve had is that the constitution reads this way but the law is not that way,” Joyce said. “So there’s confusion when people are reading the constitution.” 

Disability Rights Maine perennially has to educate people about their right to vote. Some Maine newspapers have continued to reference the restriction in the constitution even after the state stopped enforcing it, Joyce said.

“It’s due time to change it,” Joyce said.

While the prohibition isn’t enforced, the language in the constitution is still viewed as discriminatory by families whose loved ones are in guardianships. 

Cheryl Ramsay gave birth to identical twin boys, Derek and Scott, a minute apart by cesarean section on April 5, 1986. They grew up in Topsham, and both were later diagnosed with schizophrenia.

Scott Ramsay, now 37, spent a year at the Riverview Psychiatric Center in Augusta twice during his early 20s. During his second admission, Cheryl Ramsay said it was recommended she apply to be Scott Ramsay’s guardian through the Kennebec County Probate Court so she could sign paperwork and approve medications on his behalf.

Cheryl Ramsay was granted full guardianship of Scott Ramsay in 2010. The order left his voting rights intact, which Cheryl Ramsay said she is grateful for even though Scott Ramsay has never expressed interest in voting.

“There’s a presumption of incompetency just because guardianship is in place, and I just don’t feel that should be the case,” Cheryl Ramsay said. “There’s all kinds of different situations where a guardianship may have been put in place. In terms of Scott, getting guardianship was one of many difficult pieces of the journey that we’ve been on, and it wasn’t anything that I took lightly.”

Multiple shelves are overflowing with probate court case files inside a courthouse office.
Voluminous probate files are housed in the probate office in the Cumberland County Courthouse in Portland, Maine. The court has approved at least 712 guardianships or conservatorships since September 2019. Photo by Fred J. Field.

One in four Mainers were diagnosed and receiving treatment for a mental health challenge prior to 2020, said Hannah Longley, a senior clinical director with the state branch of the National Association of Mental Illness.

“We have to be incredibly mindful that just because someone has a mental health challenge or they’re experiencing a mental health crisis, it does not negate their constitutional rights,” Longley said. 

Longley said it is “horrific” that Maine has allowed discriminatory language that restricts the voting rights of one group to remain in its state constitution.

One voice of opposition is Matthew Gagnon, who is the chief executive officer of the Maine Policy Institute, a free market policy think tank.

Writing a column in the Bangor Daily News, Gagnon notes guardianship is too broad to be used as a proxy to determine whether someone has the mental capacity to vote. He would prefer a more narrowly tailored approach that defines mental incapacity more precisely.

The November ballot question, he said, leaves voters with two bad options.

“If we vote yes, we remove a constitutional provision that seeks to prevent those who can’t make rational decisions from voting. If we vote no, we undoubtedly prohibit people who actually can reason through decisions from exercising a right they should possess, and we leave a provision on the books that has been ruled invalid in court,” he wrote in the Bangor Daily News

Voting rights still vulnerable

Although a federal court found it to be unconstitutional for Maine to automatically take away the voting rights of all people under guardianship for reasons of mental illness, the state still can have laws restricting voting rights, said Joyce, the Disability Rights Maine attorney.

“The state can make these laws that do impact fundamental rights, but there is a very big body of law about restrictions about how they would be able to do it,” Joyce said.

State law says adults under guardianship retain three rights: to vote, marry and have a lawyer.

But state law also allows probate judges to restrict voting rights of an adult under guardianship as long as they explain their specific reasons why they believe the adult cannot vote.

“A court order removing the right to vote must include a finding that the adult cannot communicate, with or without support, a specific desire to participate in the voting process,” according to Maine law.

Lyman Holmes was first elected the Washington County Probate Judge in 1989. He cannot recall in his 34 years purposefully restricting a person’s right to vote. 

Maine’s probate laws were heavily revised in 2019. It is possible under the old laws that people lost their right to vote automatically when Holmes approved a guardianship, he said.

“I thought the federal case has done away with that, but on an individual basis I guess it gives us the right to deny a person a right to vote,” Holmes said.

David Paris, who was elected the Sagadahoc County probate judge in 2020, said he also hasn’t taken away the right to vote during any guardianship proceedings.

“I have never restricted any voting privileges in any guardianship that has come before me as Probate Judge nor could I fathom any circumstance that would be appropriate either,” Paris wrote in an email.

Judge David Paris speaks with an individual (not shown) in front of a sign that lists him as the county's probate judge.
Judge David Paris, who runs the Sagadahoc County Probate Court without a permanent courtroom. Photo by Fred J. Field.

State Sen. Craig Hickman (D-Winthrop) led the effort to get Question 8 on the ballot this November. It has gained the support of more than two-thirds of Democrat and Republican lawmakers in the state.

Voting is the way for people to participate and have a say in how their government operates from the local to the federal level, Hickman said. Voting also allows people to have a say in if their rights are supported or infringed upon.

“Our vote is our voice,” Hickman said. “It’s the primary power that we have as individuals in a democratic society.”

Finding the political will

Maine’s constitution is a “unique” and “quirky” document, Hickman said. He proposed the Legislature form a study commission to review the entire constitution, but the bill didn’t gain enough support this year and did not pass.

Election Day will be the 56th anniversary since Maine voters approved a constitutional amendment to repeal registers of probate and part-time probate judges as elected officials and to replace them with a system of full-time probate judges.

The constitutional amendment would not take effect until the Legislature created a probate court system with full-time judges. State lawmakers have completed numerous studies and proposed bills to transition the probate courts to a system with full-time judges, but the Legislature has not approved any of the proposals.

A Monitor investigation this year uncovered that Maine’s 16 independent probate courts have too few employees and insufficient budgets to consistently screen, train or monitor the guardians that probate judges appoint. Most probate courts do not know how many guardians they have approved or whether the people under guardianship are still alive. 

The probate courts do not employ full-time investigators to check on adults after they’ve been placed under guardianship. Probate judges instead depend on a once-a-year report to learn about the care and well-being of incapacitated adults, sometimes with devastating outcomes, as was the case of Norman Fisher, who died in 2019, the Monitor reported.

Probate Judges also infrequently opt for a less restrictive alternative to guardianship, known as “supported decision-making,” which judges are required to rule out before appointing a guardian. 

In the past three years, eight individuals under public guardianship of the state have died in unexplained ways, the Monitor reported in September.

Lawmakers including Hickman, who is chairman of the Government Oversight Committee, are now demanding answers from the state Department of Health and Human Services after it failed to report these kinds of deaths to legislators for more than 25 years.

“At some point the Legislature is going to have to find the political will to do something that establishes a probate court system that hires full-time judges, because that’s what the constitution has told the Legislature to do,” Hickman said. 

This story is part of an ongoing series by The Maine Monitor about the county probate court system.

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Maine’s constitution says people in guardianships with mental illness cannot vote. Voters can change that in November.