Boomers Against Elder Abuse: Letter to Mr. Jim Jackson

 

Dear Mr. Jackson*-- I am a national advocate for vulnerable adults and elders under guardianship. My Facebook Page, Boomers Against Elder Abuse, which researches this subject has 61,000 followers This page was started here in New Mexico. As you know, news is breaking all over the nation about severe financial abuse by guardians and conservators who are not adequately supervised by experts outside the court.

I attended the International Congress on Adult Guardianship in Washington D.C. in May, and would like our New Mexico task force on guardianship to consider reforms in legislation that would improve the situation in our state. Highlights of reform include: Michigan is reinforcing rights of wards, requiring courts to specifically state the exact powers of the guardian/conservator. All other ward rights are retained. "Best interest" can't override these without a court order. In California ward's rights to visitation, mail, and phone calls have been bolstered as well.

The head of Michigan's Arc, Dohn Hoyle, suggests that guardianship/conservatorship works against the safety the ward. He feels that the idea of protecting an elder or vulnerable adult by removing the fundamental rights that serve as their protection is fundamentally flawed. Limited guardianships only are allowed in Germany, and wards do not lose legal capacity to properly defend themselves. In Hong Kong, only $12,000 per month can be removed from a guardianship account in order to protect the ward's assets. Limited guardianships are insisted upon as first priority.

Supportive decision-making with a circle of support is being considered as a future option among many reformers. Treating a ward like a child, with the guardian acting as a parent of a child is no longer acceptable in the 21st century. Persons with Disabilities and Disabled Elders need to be treated as integrated members of society, not separated from the world around them by social discrimination, restriction, and loss of quality of life. This, unfortunately is the case for many wards in our state. I became interested in this topic when a friend of mine was put under guardianship and charged perhaps as much as 1 million a year for "services." Heirs are not allowed an audit of where and how the ward's money was spent, and the records are sequestered.

Illinois is proposing that clear and convincing concrete proof be required to remove previously assigned P.O.A. and Health Directives. My friend had all of his documents in place, and they were quickly tossed out the window. Too often these documents are rescinded by the court without concrete evidence of mis-management or wrong-doing. Often the elder's wishes when expressed while having capacity are completely ignored, as was the case with my friend. This is true throughout the nation. If P.O.A.'s were respected and not allowed simply to be tossed without question, this would reduce the number of guardianships/conservatorships in our state.

When it comes to wards with substantial assets, a small number of wealthy families in New Mexico are claiming that 50 million dollars is missing from their parents' estates after conservatorship. They aren't allowed to hire outside accountants to review the records which are also sequestered by the courts. With no one outside the court carefully examining guardianship accounts, even though there are honorable conservators and guardians, the laws basically, as reformers see it, encourage unmonitored theft by family guardians and professional guardians. With the laws as they are, theft can too easily be covered up, and severe conflicts of interest exist in the courtroom setting.

Some families are forced to sign confidentiality agreements to receive inheritances, and there is no attention to any of these malpractices by law enforcement which claims that guardianship and conservatorship theft is a civil matter. It's not. It's potentially criminal, which can only be ascertained by thorough investigation, which is obviously no possible due to the egregiously insulated, cozy, closed system. The very nature of the conflicts of interest and secretive nature of the guardianship court proceedings in our state looks very suspect to the public. This perception will only grow as publicity of practices increases, which is occurring everywhere. We need to act proactively to protect the reputations of those who are honorable in these professions, and to weed out those who are not. Only stronger enforcements will do that.

In Palm Beach, guardianship fraud is so rampant that the state has given all county clerks throughout the state the independent authority to subpoena records for three levels of audits depending on each case brought to their attention.. A guardianship fraud hotline was established in Palm Beach due to the severity of complaints.

We need a mechanism here for complaints because there is no recourse for investigation into the practices of conservators and the fees charged by guardians and their employees. Heirs have no recourse under our system, and even though an elder's money does not belong to heirs during an elder's lifetime (and some families seem to forget that) those assets should be for use by the elder. However, most of these assets are diverted to often unwanted "services" that are truly suspect.

One million dollars per year for one person's care, for example, with no proper auditing outside the courtroom where these charges are considered fine, is outrageous and obviously not in an elder's best interest. Elders have spent a lifetime accumulating legacies to pass along for generations to come. It is not in any elder's best interest to have everything they have worked for depleted mercilessly by total strangers, who often isolate and medicate the ward beyond recognition. I have seen this behavior personally, and in any other arena, these practices would be considered financial, emotional, and physical elder abuse.

My Facebook page on this topic is gravely concerned with the rights of elders as Boomers approach old age. Too many abuses are occurring under the guise of protection. This needs serious attention in our state. Since stories in the press are breaking out at a steady clip, around the nation, it's only a matter of time before the industry here is put under scrutiny. 12 family members of victims have confided in me, and the abuses they have suffered are immeasurable.

I appeal to you, as having been in the forefront of guardianship/conservatorship reform in our state, to see to it that elders who choose to retire here in our state are safe. I hope that the work of the task force on guardianship will continue to examine these problems. I also strongly believe that efforts towards reform must include elder advocates who have studied reforms in other states and countries. We want to be part of the solution. Right now, as outsiders, all we can do is point out the problems.

Thank you--

Marcia Southwick
Boomers Against Elder Abuse

*Mr. Jim Jackson is Director of Disability Rights and a member of the NM 2013 Legislative Task Force on Guardianship

3rd World Congress on Adult Guardianship: Putting Personal Autonomy Ahead of 'Best Interests'

The World Congress on Adult Guardianship is a grand-sounding name for a gathering of lawyers, judges, social workers and legal guardians from more than 20 countries who have come to a Marriott near the Reagan National Airport to discuss some lofty goals having to do with human dignity.

I am here to learn the latest thinking on how very vulnerable adults — both elders with dementia and people with severe developmental disabilities — can lead self-directed and authentic lives instead of being sacrificed to well-meaning but heavy-handed government intrusions. Everyone at the conference readily admits that these ideas are a long way from the bleak realities on the ground in most of the places they come from.

But at least they are talking about them. They use phrases like “person-centered guardianship” and “supported decision-making.” They are making an earnest attempt to connect the dots between the murky, hidden and highly bureaucratic world of adult guardianships and the newly accepted broader social agenda of helping dependent people stay in their communities instead of being shuttled off to institutions.

And because this is Washington, D.C., the way talk turns to action is in creating a layer of government to prod society further along. Two years ago, the Department of Health and Human Services came up with something called the Administration for Community Living, putting money and a mouth toward the goal of giving America’s elderly and disabled access to what all of us say we want: the right to decide where and how we live.

Assistant Secretary of Aging Kathy Greenlee, who is administrator for this new federal agency, says it’s the first emergence on such a level in 20 years. The compelling numbers — 35 million people with dementia worldwide, expected to triple by 2050 — have certainly helped to drive the change. But Greenlee believes we have to stop framing that demographic phenomenon as some sort of apocalypse, as in the “silver tsunami.”

“I am on a one-woman campaign to get rid of this language,” she told the audience here. “A tsunami will drown you. Older people are not a threat.”

In a culture that worships youth and abilities, she said, it is time to challenge our assumptions with new questions.

“At 90, what you have more than anything else is your self,” she said. “Can you be yourself in a guardianship? It all starts with knowing more about the lives and the hopes and the goals and the self of that person.”

Supported decision-making is being discussed here as an alternative to the all-or-nothing powers that court-appointed guardians now have to act in the “best interests” of their adult wards. When it comes to people with dementia, Greenlee admitted, this is easier said than done.

“Supported decision-making becomes even more complicated when you try to reduce it to practice,” she said. “We have socially constructed negative images of the very people we want to help. How do we do this well? How do we provide the right support at the right time?”

A day after Greenlee spoke, her deputy made the announcement that the Administration for Community Living had just decided to establish a national center on supported decision-making, and fund pilot projects to see how the concept can work. Sharon Lewis, principal deputy administrator for the agency, said she knew it would be a tall order for existing guardianship programs.

“Our role is not just to protect people,” she said. “Now we are saying, ‘Oh, by the way, everyone has to be served on a person-centered basis, and you have to take into account what they want.’ We’re a long way from that ideal that I describe. But I also think we can get there.”

Kristin Glen, a former New York Supreme Court judge and law school dean and an advocate for guardianship reform, said recognizing the right of an elder with dementia to more autonomy is a “radical concept.” But she pointed out that this kind of mass paradigm shift has happened before.

“Half the people in this room,” she said, would have once had all major decisions made for them because they were considered “too delicate, too childlike, and they needed protection. Everybody understood that. Now we see things very differently. Of course, I’m talking about women.”

Source:
Putting Personal Autonomy Ahead of "Best Interests"