by Christy Gutowski
After months of debate, legislation inspired by a Tribune
investigation into some Chicago-area hospitals’ questionable use of the
state’s guardianship system has advanced from the Illinois House as
supporters seek to strengthen court oversight and other protections for
the rights of vulnerable adults.
Earlier versions of the bill
would have banned the appointment of private professional guardians in
cases where a hospital, nursing home or similar institution has asked a
judge to rule that a person needs court-ordered oversight because he or
she is unable to make medical, financial and other personal decisions.
The Tribune’s investigation,
published in November, revealed that when the patients in question
owned property or other financial assets, hospitals typically
recommended that a private guardianship organization rather than a
county public guardian be put in charge of their lives. Paying for that
organization’s work, along with fees billed by lawyers on the case,
sometimes drained people’s savings at a rapid pace, the Tribune found.
But
the proposal to bar private guardians completely drew objections from
hospitals and others who argued it would force some patients to remain
hospitalized beyond medical necessity. The amended bill would allow
private guardianship appointments but enact requirements aimed at giving
probate court judges more authority to hold the entities accountable.
The
measure has yet to gain the approval of a longtime opponent, the
Illinois Health and Hospital Association, but after advancing to the
Senate on a recent 81-28 vote in the House it has survived longer than
earlier attempts and has turned several past opponents into supporters.
In its investigation, the Tribune found that Chicago-area hospitals had initiated hundreds of guardianship petitions
in an 18-month period. Hospital representatives said the petitions were
intended to protect incapacitated patients who are too disabled to make
their own decisions and who have no family or friends willing or able
to take charge.
But the Tribune found many cases where the
petitions eased the way for hospitals to discharge patients to subpar
nursing homes, sometimes bypassing family members who disagreed with the
hospital’s choice or were slow to make other arrangements.
The
hospital association also had expressed opposition to similar
legislation introduced in previous sessions by former state Rep. Terra
Costa Howard, now a judge. State Rep. Marti Deuter, an Elmhurst
Democrat, worked with AARP Illinois on the latest bill, which picked up
14 other sponsors in the House before the April 16 vote.
After
months of discussions with opponents, supporters say the amended version
of Deuter’s bill represents a compromise but still would set important
safeguards around private guardianship appointments.
For example,
the bill would require employees of private guardians to undergo
criminal background checks every five years and get the education
necessary for national certification. And a private guardian corporation
would have to submit to annual independent audits if it manages more
than $1 million in assets.
The bill also seeks to prohibit private
guardians from having financial ties to other for-profit entities
involved in the person’s case and would give the court more information
through annual budgets and fee schedules.
Also, in certain cases
where a private entity is seeking to pass the case to a public guardian
as successor, which typically happens when the estate is running out of
money, a 120-day minimum notice to the court would be required.
The
hospital association still objects to the part of the bill that would
require the private guardian to meet with the hospital patient prior to
accepting the appointment, citing concerns that such a requirement may
slow the process as well as timing issues concerning medical consent.
To
address the possibility that a person may be too incapacitated to meet
with the guardian or be unwilling to meet, supporters changed the bill
to specify that if the meeting is “not reasonably possible” the
prospective private guardian must certify in court that “they will meet
with the respondent as soon as feasible after the appointment.”
In
response to Tribune questions, a spokesperson for the hospital
association said the organization will continue working with the bill’s
sponsors on the language.
“IHA supports the goal of strengthening
existing protections in the guardianship statute and is committed to
working through any remaining unintended consequences of the proposed
legislation on patients, like the previously mentioned delays in
obtaining timely consent for treatment that directly impacts patient
outcomes,” Paris Ervin said in a statement.
Cook County Public Guardian Charles Golbert, whose staff oversees the
cases of more than 600 adults under guardianship and has helped
champion the bill, said face-to-face meetings are standard practice in
his office prior to appointment and are crucial to properly assessing
the person’s needs.
He said more than 20% of all cases in his
office involve people under a limited guardianship that allows the
person some control over their life. In the Tribune’s 18-month review,
only seven of the hospital-initiated guardianships, or roughly 2%, were
limited rather than full guardianships.
“That’s scandalous in my
mind,” Golbert said, “and that’s what happens when guardians accept
appointments with people who they have never met.”
Another
compromise supporters made to advance the legislation was deleting
language that would have temporarily prevented private guardians from
collecting court-approved fees if it meant the person had to sell their
home for nonmedical reasons. Supporters said the proposal was met with
skepticism by lawmakers who recognize the private entities do not have
taxpayer funding like their public counterparts and need to be paid for
their services.
Under the latest version of the bill, fees may be
collected but the private guardian would be required to notify the court
as soon as “it estimates the estate of the person with a disability can
no longer afford the services” or “if the sale of (the person’s)
residence would be required for the continued services” within 36
months.
The hope is the court would step in at that point to
either reduce fees or appoint a public guardian, such as Golbert, who
said his office delays fee collection when doing so allows a person to
remain in their home.
Besides the hospital association, the bill
had faced opposition initially from other important voices, including
the Catholic Conference of Illinois, which runs a private guardianship
program for elderly people that receives hospital referrals. The group
dropped its opposition after the bill recognized a place for private
guardianships, said Marilou Gervacio, director of social services/social
justice.
The vast majority of the hospital guardianship petitions
reviewed for the Tribune’s investigation involved people with little
money who were placed with the Office of State Guardian at the
hospitals’ expense, rather than under a private guardian or a county
public guardian like Golbert.
The Illinois Guardianship and
Advocacy Commission, which operates the state guardian’s office, said it
initially opposed the bill because of a provision that would have
required the office to receive notice if a facility determines that
someone may need a guardian.
“That provision would have created an
administrative obligation without a clear purpose or authority to act,
and no additional resources to manage the volume of notices,” the
commission said in a statement. The language was removed in the amended
version of the bill.
Despite the compromises, supporters say the
legislation still would go a long way toward improving the system. Other
changes would require private guardians to attest to the court that
their efforts to locate family or friends were exhausted prior to
appointment. And the petition would need to name the private entity’s
president, director or other corporate officer as the preferred
guardian, rather than a business name, with the goal of encouraging more
personal responsibility.
Besides Golbert and AARP Illinois, other
backers include the Illinois State Bar Association and the Illinois
Long-Term Care Ombudsman Program.
“The bill moves Illinois closer
to a system that respects independence, protects savings and prioritizes
dignity for older adults,” Philippe Largent, AARP Illinois’ state
director, said in a statement.
Added Golbert: “These are really
commonsense types of safeguards and protections for truly our most
vulnerable people — we are talking about people with advanced dementias —
who don’t know what’s going on and don’t understand what’s happening to
them or who either have no family or have family that is financially
exploitative or otherwise unavailable. These guardrails are just
critical for our most vulnerable people.”
Sen. Michael Halpin, a
Rock Island Democrat, has picked up the bill in the Senate. The spring
legislative session is scheduled to adjourn May 31.
Full Article & Source:
Restrictions on private guardianship of vulnerable adults advance in Springfield
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