Editorial: Guardianship under the microscope

New York's attorney general is looking into the system of care for the most vulnerable, but the state needs to do more to expand resources and oversight.

By Times Union Editorial Board, Opinion

The troubled system intended to protect the state’s most vulnerable residents is getting a look from the state attorney general’s office — official attention that’s coming none too soon.

Jake Pearson of the nonprofit newsroom ProPublica has for a year been reporting stories about the guardianship program that described evidence of alleged fraud, abuse and neglect.

Among many other issues raised by ProPublica, their investigation found that there are simply too few “examiners” to monitor the care provided by guardians; only 157 exist for the 17,411 wards in New York City alone.

In the absence of proper oversight, rogue organizations have enriched themselves at their wards’ expense. That’s where Attorney General Letitia James enters to investigate these bad players and, as ProPublica reported, “how they manage the health and financial affairs of hundreds of elderly and infirm New Yorkers deemed incapable of looking after themselves.”

One such outfit is New York Guardianship Services, on which ProPublica has reported extensively, noting that it has — among other outrageous cases — placed a woman in a rat-infested apartment without heat all while the firm collected $450 a month and reported her situation to the courts as “appropriate.” This occurred, according to ProPublica, “even as internal company records and her own emails showed that she’d repeatedly complained about the conditions.”

NYGS, which was ordered by a judge to repay that ward $5,400, is one of about a half-dozen organizations now being investigated by James’ office.

Great news — but what about the guardianship program itself?

Earlier reporting by ProPublica quoted Kristin Booth Glen, a former judge who three decades ago helped craft Article 81 of the state Mental Hygiene Law, the statute that guides guardianship in New York, as acknowledging the system is now “a total and utter disaster.”

The state Office of Court Administration has noted that judges backstopping the system are outmatched by caseloads; it has appointed an advisory committee to suggest fixes. That committee has now called for a $72 million independent statewide agency to serve as a public guardian. 

Advocates have called on Gov. Kathy Hochul and legislative leaders to budget $15 million annually for a statewide network of nonprofits that could shore up the system. But the fact that the negotiated budget for the current fiscal year included only $1 million for a statewide guardianship hotline doesn't bode well for either proposal.

The hotline might be a fine tool, but it's the equivalent of a Band-Aid on a sucking chest wound. These are, after all, people who have guardians because they can’t speak for themselves.

They are referred to as the “unbefriended” because they don’t have family or confidants who can represent their best interests. As we speak, the system rarely checks on these people in person and largely relies on financial paperwork to determine a person’s well-being.

The state needs to step in immediately to consider these proposals and find ways to address alleged abuses, including improved training requirements for guardians and examiners; increasing the number of judges to keep eyes on the system; making reporting requirements more robust; and establishing caseload limits for everyone involved.

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Editorial: Guardianship under the microscope

Editorial: Florida should find better ways to stop financial abuse

Orlando City Commissioner Regina Hill, seen here at a sculpture unveiling in 2022, is facing accusations of elder exploitation with a state agent saying she used her power of attorney to take more than $100,000 from the estate of a 96-year-old Orlando resident. (Willie J. Allen Jr./Orlando Sentinel)

By Orlando Sentinel Editorial Board

In the right hands, a power of attorney can make it much easier to manage the finances of someone who can’t make their own decisions, or ensure they get the health care they need.

But too often, these powerful documents fall into what turn out to be the wrong hands — sometimes strangers, sometimes family or friends. That can result in shocking financial abuse, particularly for vulnerable people who lack close connections to provide oversight. Orlando residents are watching this narrative play out in the case against City Commissioner Regina Hill, who has been indicted on seven felony charges related to allegations that she abused a power of attorney that gave her control of a 96-year-old constituent’s finances. Prosecutors say Hill used that power in suspicious real-estate transactions, and to drain $100,000 from the woman’s bank accounts, spending the money on a  hotel stay, vitamin injections, plastic surgery and other purchases. Hill (who has been suspended from office) maintains her innocence — and may yet be acquitted. But this story is shining a light on the inadequacies in Florida’s elder-protection laws.

Easy and dangerous

Florida recognizes different types of power of attorney — or POA — contracts. They can grant a limited range of powers or extend over the entire range of a person’s finances. Some expire after a specific amount of time or when certain conditions are met. But others —so-called “durable” power of attorney — don’t expire unless they are canceled by the grantor. Florida also allows for medical power of attorney grants, which give power over health-care decisions to someone else if the grantor can’t make their own decisions.

The thing POAs have in common is this: They are very easy to execute, using standard language found on the internet, and can take force with the notarized signatures of two witnesses. And they can be  nearly impossible to challenge if the grantor can’t make their own decisions. Unlike guardianships (which give the guardian total control of another person’s life) they don’t have to be registered with any court and aren’t subject to any oversight. Theoretically, the grantor can override a POA at any time.

This is by design. Having power of attorney can make it much easier and less stressful for those who are caring for other vulnerable people. But it can also put isolated seniors and others at risk of financial abuse.

That leaves Florida with a serious problem. A legislative bill analysis of the 2023 law that forms the basis of several of the counts filed against Hill cites 2021 FBI statistics on financial abuse of seniors, claiming that 92,000 victims over the age of 60 reported claims that year. Among the states, Florida posted the second-worst record in the nation, with 9,645 victims. Not all those cases involved power of attorney abuse, but many did — and it makes sense that many of the reforms aimed at POA abuse would also stop other kinds of fraud.

This leaves lawmakers with a significant challenge: The state has already increased legal penalties for financial exploitation of elders. What more can they do to protect vulnerable Floridians? The best place to start is to look at other states that have adopted innovations Florida has yet to consider. One good example, backed by the American Bar Association, is a process called Supportive Decision Making, a less-restrictive alternative to POA agreements and guardianships which allows a team of friends, family members and professionals to advise a disabled person in making decisions that best reflect their wishes. This process is authorized in 21 states, and it’s something Florida should consider.

The state could also benefit from a suggestion by the Florida Bar: Give state investigators the ability to look into financial records when they suspect abuse. Under current law, those records can’t be accessed unless the POA’s grantor gives permission. That leads to another likely necessity of increased funding for financial-abuse investigations.

There are no easy solutions here, unfortunately. Many cases of financial abuse are likely to go unreported. Public-information campaigns can fight that, but not always successfully. That doesn’t mean Florida’s leaders should give up. In fact, it should strengthen their resolve to protect vulnerable Floridians whenever possible.

The Orlando Sentinel Editorial Board consists of Opinion Editor Krys Fluker, Editor-in-Chief Julie Anderson and Viewpoints Editor Jay Reddick.

Full Article & Source:
Editorial: Florida should find better ways to stop financial abuse

See Also:
Orlando Commissioner Hill’s case part of ‘epidemic’ of elder abuse, experts say

Buddy Dyer sets May 21 Special Election to replace Regina Hill

Attorneys predict there will likely be prison time for Regina Hill

Preparations underway for Orlando special election to fill Regina Hill's city commission seat

Community members have mixed emotions over arrest of Commissioner Regina Hill

US official spends elderly woman's $100,000 savings on facelift, new home

Orlando Commissioner Regina Hill accused of financial exploitation of 96-year-old woman

Orlando Commissioner Regina Hill arrested, faces charges of elderly exploitation, mortgage fraud

Another small step in effort to make a big change

When Lynn Fiedler first met with The Daily Item weeks after news of horrendous acts of elder abuse emerged out of a local senior care center, she displayed a firmness and determination of someone about to initiate change.

As part of a new elder abuse task force that includes lawmakers, law enforcement personnel, lawyers and other advocates, Fiedler is pushing ahead.

Feidler has often been front and center, a voice for the voiceless as the legal maneuverings in the wake of extensive elder abuse charges emerging out of the Heritage Springs Memory Care Center in Union County continued. Fiedler’s mother was one of the victims of the gross actions of two individuals — a then-18-year-old woman and a then-17-year-old juvenile male — over a five-month window in late 2022 and into early 2023.

During that first meeting, Fiedler understood change was needed. It might not help her family, but she wanted to make sure individuals who perpetrated these disgusting acts were appropriately handled by the justice system and upgrades made to that system to expand punitive measures.

She knew then, and still understands a year later, the work is just beginning. It’s why she often wears a T-shirt with a “Journey to Justice” message on it.

“We realize this is going to be a long journey,” Feidler said after a task force meeting last week. “This is one of the first steps to the journey. We’re all very invested in this. Our goal is to create better legislation to protect this population. First, second, third or however many steps it takes, we’re in for the long haul.”

Fiedler’s determination is something state Sen. Lynda Schlegel Culver acknowledged is a driving force behind the task force. Learning the stories of the 17 residents and their families has forced action, she said.

“It’s one thing to read it, but it’s another to talk to folks who have family members that were impacted,” said Culver. “This impacts entire families, people who went to visit, people who support, this impacts an entire family. You never, ever think no matter how much research you do, no matter how many times you visit, that this can actually happen in that small amount of time you’re not there. We’re coming to learn that we’re not protecting our senior citizens. We’re leaving them out there very vulnerable. The law is not the same as if you were a child.”

A law is moving through the state Senate that will be named Alice’s Law, after Fiedler’s mother, Culver said.

It’s another step. But another step in a long process built on a determination to see real, significant and impactful change.

NOTE: Opinions expressed in The Daily Item’s editorials are the consensus of the publisher, top newsroom executives and community members of the editorial board.

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Another small step in effort to make a big change

Editorial: Targeting seniors

This is what The Boston Globe had to say about scammers who target elders:

Making banks and brokers partners in the effort will help.

The fact pattern is now so well established that it’s referred to as the “grandparent scam.”

Someone purporting to be the grandchild in trouble calls granny needing bail money or money for a lawyer, who then gets on the phone to confirm the “crisis.” Grandma rushes off to the bank to get the required cash, packs it up as told to hand to a courier or Uber driver sent to pick it up. Then it’s usually gone forever.

A 93-year-old Pembroke grandmother is among those who have fallen for such a scam. But she has plenty of company here and around the country. Online and digital scammers cost Americans $10 billion last year, according to the FBI — about $3 billion of that was lost by seniors.

And only 1 in 44 incidents of elder financial exploitation is reported, according to the National Adult Protective Services Association.

Seniors are often too embarrassed to tell even family members that they have been scammed.

“It’s a frequent enough problem that we really need to do something about it,” Secretary of State Bill Galvin told the editorial board. “The sophistication of the scammers has increased. And if an electronic transfer is used, once that money disappears, it’s gone.”

And so Galvin has filed a bill designed to put the brakes on a transaction if a bank teller, broker, or financial adviser suspects that an elder (defined as 60 and older) or disabled adult client is in danger of being exploited. It allows financial institutions to delay a disbursement and notify a relevant adult protective services agency and the secretary’s office if there is “reasonable cause” to believe financial exploitation has occurred or is being attempted.

“By and large these people (who are being scammed) are competent,” Galvin said. “But they need a little time, a little breathing room to reconsider.”

That’s Galvin’s aim with the bill — slow down the process that scammers have counted on to push panicked elders into making hasty decisions. The proposed state legislation pairs nicely with an ongoing federal effort — under the 2018 Senior Safe Act — that offers bank and financial services employees training on spotting potential victims and immunity when they report such incidents to authorities.

Galvin’s bill, filed in conjunction with Senator Paul Feeney and Representative James M. Murphy, co-chairs of the Joint Committee on Financial Services, would also provide immunity from civil liability for those bank employees trying to do the right thing.

Now, not all scammers are strangers. It’s not uncommon to have family members attempt to exploit elders, and a few of those cases have been reported to Galvin’s office by brokers and financial advisers. In fact, according to a 2019 study by the Consumer Financial Protection Bureau, “losses were greater when the older adult knew the suspect.”

Galvin’s bill deals with that possibility as well, including a provision designed to make sure that relatives or other third parties who might actually be engaged in the exploitation of elders themselves aren’t notified of a bank’s suspicions.

Federal efforts, including those of the Justice Department, have been largely aimed at spreading the word, educating people about each new scheme as it picks up speed. But for many that will come too late. States are now trying to close that gap — to take the more proactive slow-it-down approach.

A bill backed by Secretary of State Brad Raffensperger of Georgia and passed unanimously by both branches of the Georgia Legislature took exactly that approach. The Senior Protections from Exploitation Against Retirees Act was signed into law by Governor Brian Kemp in May.

Earlier this month, Connecticut Governor Ned Lamont signed a bill to give financial institutions the ability to suspend disbursements for up to 45 days if the exploitation of an elder is suspected. (The Massachusetts bill’s holds would expire after 15 days.) The Connecticut bill goes into effect July 2024. It, too, passed unanimously in both legislative branches.

Now Georgia, where Republicans hold both branches of the Legislature and the governorship, and Connecticut, where Democrats hold all three, would seem to have little in common — except perhaps their common-sense approach to doing the right thing by seniors — preventing their exploitation before it robs them of their savings.

The Galvin-Feeney-Murphy bill is all about doing the right thing by seniors here in Massachusetts. If Georgia and Connecticut can get it done, we can too.

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Editorial: Targeting seniors

EDITORIAL: Hotline helps vulnerable older population

Connecticut Attorney General William Tong speaks next to, left to right, State Reps. Liz Linehan (D-103) and Jack Fazzino (D-83), and State Senator Jan Hochadel (D-13), at the Cheshire Senior Center, Thursday, April 27, 2023. Tong spoke to seniors on how to combat financial fraud along with other kinds of abuse. Dave Zajac, Record-Journal

Elder abuse comes in many forms and far too often those in this demographic do not have the connections or resources needed to fight back. A hotline project is working to address that injustice by giving older people a way to protect themselves and get support.

Record Journal reporter Cris Villalonga-Vivoni recently wrote about elder abuse, a nationwide problem and one that continues to be underreported, according to Audrey Grove, director of CareConnect Navigator at Masonicare, a Wallingford-based not-for-profit provider of senior living and healthcare.

Nationwide, an estimated 10% of adults 60 and older will experience one or more forms of elder abuse during any given year, according to the federal Department of Justice.

Elder abuse runs the gamut of painful experiences and can include caregiver neglect and financial exploitation as well as psychological, sexual or physical abuse, writes Villalonga-Vivoni, citing Department of Justice findings. The resulting trauma can result in “increased chance of mortality to financial loss to disruptions in relationships.”

A common and disturbing exploitation involves frauds and scams. Grove told Villalonga-Vivoni that seniors can be easy prey as they may be isolated and looking for connections to others. Their knowledge of internet safety may not be the best, either, Grove explained. For instance, romance scams often foster a friendship with a senior ultimately resulting in the scammer asking for money. Most seniors realize they're being exploited only after it's too late, she said.

Scams often prey on fear, Grove said, describing how a scammer can frighten an older person with a phone call saying a family member was arrested and needs money to get out of jail.

In 2021, the state's Office of Attorney General William Tong created the Elder Justice Hotline. The service provides seniors a place to report abuse and get help with issues that may require financial, criminal or social services to address their situations.

"We provide this resource so that people aren't alone. They have someplace to turn and can get someone in the Attorney General's office to focus on their issues personally,” Tong said.

The Elder Justice Hotline has assisted hundreds of Connecticut seniors experiencing elder abuse, typically fielding 70 calls a week, through its 1-860-808-5555 number. Those statistics show this service is needed and being used.

The idea was to create a “one stop shop” for seniors, making it easier to find and use the many available resources. Hotline operators can immediately connect callers with the right department or authorities for a wide range of needs: housing, food insecurity, health insurance and legal assistance. There’s a follow up call, too, to ensure that the issue is resolved.

Having a phone line with a live staff member was an important piece of creating the service, as older people may not like or have easy access to the internet. They also need to connect with a human voice and not an automated message.

"This hotline will help law enforcement, as well as family and friends, protect our most targeted and vulnerable population,” said James Rovella, the commissioner for the state department of emergency services and public protection. “Our older populations sometimes have difficulty and fear when they are trying to report that they are a victim. This will be a tremendous help."

Giving older people a hotline — at times it’s a lifeline — provides them access to a wide range of support services. It means they do not have to be alone as they sort out what can be a confusing and, at times, dangerous world. The components of this hotline assistance reflect a compassionate and result-oriented approach. The hotline can help our elderly stay healthy and safe and let them know they are valued. “Elder justice” says it all.

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EDITORIAL: Hotline helps vulnerable older population

Editorial: Revamp laws for legal guardians

 
Most older people understand, by experience, the adage that “old age doesn’t come alone.” And, as people live longer, old age often comes with a legal guardian.

In Pennsylvania, more than 18,000 people are under legal guardianships, and about half are older than 60. Guardians oversee more than $1.7 billion in personal assets.

More than 2.2 million Pennsylvanians are older than 65, according to the Census Bureau, fifth-highest nationally by number and seventh-highest in terms of population percentage (17.8%). The bureau also has projected that 27.5% of the state population will be 60 or older by 2030, a nearly 28% increase from 2012.

Prompted by many individual cases of failed guardianships, a bipartisan group of state legislators has introduced legislation in both houses to ensure that guardianship is a last resort and that guardians have mandated basic qualifications and truly work for the client.

Spotlight PA recently reported on a guardianship case that began in 2010, when a Montgomery County nursing home filed a court case seeking to declare an elderly patient incapacitated and then filed a debt collection action against her.

When the first case was filed, the county orphans’ court quickly appointed a guardian — a lawyer recommended by the nursing home. That lawyer then appointed another lawyer, who did not defend the collection case. The court entered an $81,651 default judgment against the woman, who had to sell her home to cover it.

In a pending lawsuit later filed by her daughter, lawyers called the guardianship appointments a “conspiracy” that “shocks the conscience, makes a mockery of this commonwealth’s guardianship statutes … and callously exploits and abuses some of the most vulnerable members of society — all in a relentless, rabid pursuit of money.”

The new legislation would mandate training and state certification for prospective guardians, require legal representation for individuals in proceedings to appoint guardians and require steps to preclude guardians’ conflicts of interest.

Even in a polarized political environment, everyone has the common bond of growing old. Lawmakers should improve the system.

— The Citizens’ Voice (Wilkes-Barre)

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Editorial: Revamp laws for legal guardians

Editorial: #Free Britney movement revives overdue conservatorship system reform

Protesters for an end to the 13-year conservatorship over pop star Britney Spears at the Stanley Mosk Courthouse in Los Angeles on July 14, 2021.
(Emma McIntyre / Getty Images)

By The Times Editorial Board

Aug. 7, 2022 5 AM PT

A Los Angeles Times investigation in 2005 exposed deep flaws in California’s probate conservatorship system, which is meant to protect adults who cannot adequately see to their own needs or manage their money because of a disability, such as dementia or traumatic brain injury.

The “Guardians for profit” series outlined horrendous abuses by court-appointed professional conservators who used their considerable powers to mismanage the lives of some of the state’s most vulnerable people. Some of the cases were the stuff of nightmares, as unscrupulous and poorly supervised conservators took over bank accounts, blocked people from spending their own money on their comfort and safety, removed people from their homes, and got rich in the process. Other failures were more mundane but revealed a system in which overworked probate judges relied too much on the judgments and recommendations of professional conservators, to the detriment of the people they were supposedly protecting.

A probate conservatorship begins when a family member, or sometimes a public agency or other interested party, files court papers that claim a disabled adult cannot, or should not, make fundamental decisions about how to live his or her life. After a hearing, which often does not include the disabled person, the court generally appoints a conservator to take over decision-making. Conservators can dictate how a person spends money, where to live, even whether to date, marry or have sex.

Probate conservatorships are generally indefinite and are subject to only cursory review in the following years. In that way they are different from temporary mental health holds and conservatorships under the Lanterman-Petris-Short Act for people who are so “gravely disabled” they cannot feed, clothe or shelter themselves; those conservatorships expire automatically after a year.

There currently are thousands of conservatorships in California. How many thousands is a mystery, since the state relies on reports from each of the 58 superior courts. Many courts don’t file their reports.

The laws on the books permit a person under a conservatorship in California to ask a court to review and reconsider the oversight and to seek a different conservator. But they often are unaware of these rights, in part because the conservator can control what they read or hear, and with whom they speak or visit.

Former Assemblyman Dave Jones (later the state insurance commissioner) responded to The Times series with a bill intended to repair the system. It passed and was signed into law — but many of the reforms required investment in court oversight and were never put in place amid the Great Recession and the state’s dire financial condition. Little changed, and for nearly 17 years, the urgent need to fix the conservatorship system was forgotten.

In 2019, a reminder came from an unexpected source. The #FreeBritney movement rallied around pop star Britney Spears, who was the subject of a conservatorship that began in 2008 and ended in November 2021. Members of the movement became experts in California conservatorships, and reignited public interest in the broken system.

A reform bill was signed into law last year, but it, too, remains partly unfunded.

Now lawmakers are considering a bill to complete the work and, importantly, provide less-restrictive alternatives to court-ordered conservatorships, allowing disabled adults to retain as much control over their lives as they want and can exercise, with assistance.

Assembly Bill 1663 would create a program of “supported decision-making,” in which an adult can select a person to provide assistance in making choices that otherwise would be up to a court appointee, and so retain the fullest practical measure of self-determination.

Supported decision-making is based on the conviction that as long as an adult is able to communicate his or her choices, those choices should be honored. They should be able to select their own advisors and experts.

They also should be informed of those rights — as should the judges and state agencies that are part of the traditional conservatorship process. To that end, the bill allocates a one-time $10-million appropriation to provide education and technical assistance to courts, as well as to people who might otherwise be conserved, and their families.

Lawmakers should move AB 1663 forward. Improvements and alternatives to the state’s conservatorship process have been far too slow in coming. Further delays would inflict unnecessary damage on thousands of Californians.

Full Article & Source:

Editorial: #Free Britney movement revives overdue conservatorship system reform

Editorial: One guiding principle to untangle guardianship flaws

We wish for heroes and villains.

We need people to inspire us onward in a flawed world; we need people to blame for the flaws.

But our desire for clarity can create polarity. Our search for simplicity can miss the point.

The Record-Eagle’s nine-month dive into Michigan’s guardianship and conservator system found few heroes or villains, and fewer simple answers.

The more reporters investigated, the more tangles they found.

Many working in the system had both insight into its flaws and also reasons for them — changed policies, realities of funding and staffing, jurisdiction issues, delineation of duties, client privacy, fragmentation and more.

Those in the system juggle these, with the responsibility to decide what’s best for someone else, while walking a tightrope between ardent family members who disagree with each other on what “best” is. The difficulties are no doubt immense.

But we let one faction guide our reporting: The people for whom the system is built.

Vulnerable adults. The elderly. Those incapacitated by circumstance and illness. The guardian/conservator system is meant to serve them — not those orbiting around them.

But time, and time again, we found the system serving itself, the absence of the voices of the individuals in question creating both a vacuum and an opportunity for exploitation; a lack of accountability and transparency allowing repeated and unnecessary incompetence and abuse.

“Unguarded’s” findings bear repeating:

• Probate courts aren’t built to audit and monitor what guardians do with their wards.
• Protocol changes by the state judiciary, made in the name of reform, weakened state oversight.
• Three employees in the Attorney General’s office are tasked with keeping a watchful eye on more than 1,600 vulnerable individuals who have no family members interested in their well-being.
• Reform efforts have come and gone with little to show, the result of repeated efforts by judges and professional guardians to resist oversight changes. Those efforts are being revived today.
• “Good” guardians are sorely needed, but the job often pays pennies and encourages professional guardians to oversee as many wards as possible.

Progress is possible, and long overdue.

Attorney General Dana Nessel’s Elder Abuse Task Force — a body of 100 officials, lawyers, elder advocates and politicians — put forward several fixes to improve life for the state’s elderly.

Of nine, two have been realized — banks must now report suspected fraud of vulnerable adults and there’s a new form for law enforcement to use when reporting that fraud.

The other seven stalled in the House, “revised” by special interest-influence to dilute caps on the number of wards a guardian can be appointed to serve, remove requirements for guardians to personally visit their wards and debate certifications for guardians and conservators, including requirements for minimum training and professional standards.

Lobby groups for those in the system, like for judges and guardians, opposed the initial recommendations.

This isn’t the end of the story, as all of us will be needed to fix what is broken.

We will continue our reporting on every side of this complicated problem.

But the answers can be simple if we let one principle guide us — who does the system serve and how does it serve them?

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Editorial: One guiding principle to untangle guardianship flaws

 

See Also:

A guardianship gone wrong 

 

Michigan’s guardianship system leaves vulnerable exposed 

 

Isolated by guardianship 

 

Conservator says she's targeted by AG task force

Editorial: Lawmakers add new protections to guardianships

By Albuquerque Journal Editorial Board

The years-long overhaul of guardianships in New Mexico most recently has focused on rules related to emergency appointments of temporary guardians, a key source of weakness in the system of protecting vulnerable adults.

Recent high-profile cases have exposed how easily a person’s liberties can be stripped away — and how difficult it can be for that person to reclaim some say in how their lives are arranged following an emergency intervention.

In two cases profiled by the Journal, temporary guardians were appointed for retirees in Las Cruces without the knowledge of their families. In each case, it took several years and thousands of dollars in legal fees for the women’s sons to convince the judges in the cases to remove the corporate guardians and permit the sons to serve as guardians.

Lawmakers and the judiciary have been reforming New Mexico’s adult guardianship system since 2018, after the Journal began an ongoing investigation. Critics complained the system was ripe for corruption given the power granted to court-appointed guardians and conservators. Some families of incapacitated adults contended they were barred or restricted by guardians from visiting their loved ones.

With federal criminal fraud indictments of principals of two major guardianship firms fueling the debate, lawmakers and the judiciary adopted numerous reforms aimed at transparency, accountability, family involvement and oversight. But temporary guardianships had not been tackled.

Changes for the better

To date a temporary guardian can be appointed by a judge without the alleged incapacitated person or their family being notified; they can be forced out of their homes, their bank accounts transferred and their property liquidated. And all this can occur before they ever appear before the judge, who would eventually evaluate the evidence and decide if, in fact, they needed a guardian.

Now, the Legislature has unanimously approved a bill requiring judges who approve a temporary guardianship to hold a hearing within 10 days to listen to the evidence. Currently, state law requires hearings to be held “as soon as possible.” But sometimes months elapse before a hearing, during which temporary guardians have had wide latitude to make life-altering changes on a protected person’s behalf.

The measure still needs the approval of Gov. Michelle Lujan Grisham, but she paved the way for the law’s creation by adding its proposal to the list of bills to be considered during the recent short session. The governor (a lawyer who is also a caregiver for her mother) is sure to appreciate the protections afforded by tightening up of the emergency process.

Temporary guardians would be barred from liquidating the protected person’s property or moving them out of their residences without express approval from the judge. There is no such prohibition in current law.

And families, even a friend or neighbor, would have standing to appear at the 10-day hearing and ask the judge to modify or dissolve the temporary guardianship.

One of the bill’s sponsors, state Sen. Katy Duhigg, D-Albuquerque, told the Journal the bill is important because it “requires for the first time that temporary guardians and conservators account for the decisions they make and the actions they take.” A report must be filed with the judge in the case within 15 days of an appointment.

Temporary guardianships are meant to be a rare exception to the usual process of appointing a permanent guardian. Supreme Court Justice Shannon Bacon told members of the Senate Judiciary Committee there should be about eight temporary guardianships filed annually in the state. Instead there are more than 800.

The bill’s endorsement by the state AARP chapter and N.M. Guardianship Association is well earned. It increases oversight over the temporary guardian, establishes a firm timeline, requires a clear determination of a need for a guardian early and provides more opportunities for an allegedly incapacitated person to rebut allegations.

It will be tougher for the process to be abused once the governor signs this bill into law.

This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.

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Editorial: Lawmakers add new protections to guardianships

Editorial: NM has made strides to rein in bad conservatorship actors, but new cases show there’s so much more to do

By Albuquerque Journal Editorial Board

Three weeks after court approval of an emergency petition immediately turned Dorris Hamilton’s bank accounts and legal affairs over to a corporate guardian, police showed up at her Las Cruces home to take her to the hospital for an evaluation and, ultimately, to a nursing home – upending life as she knew it.

It’s not surprising to those who know the strong-willed Hamilton, the first Black woman to graduate from the University of Arkansas and the first Black public school principal in New Mexico, that she had other ideas when officers knocked on her door in August 2019. Hamilton, now 93, told police that “if a judge has decided that I’m incapable of living by myself … and I haven’t had a hearing, I want to talk to the judge.”

Her son, Rio Hamilton, says Dorris was allowed to drive her car (later driven away and sold by her conservator) to the courthouse, where she waited on a bench for 20 minutes in an unsuccessful attempt to see the judge on her case.

It is yet another case of families finding themselves shut out of the emergency guardianship process when someone files a petition. As reported by the Journal going back to the 2016 series “Who Guards the Guardians?” families watch helplessly as their loved one is removed from their home, bank accounts are closed, and court-appointed guardians and conservators take control of their lives. All at a substantial cost to the protected person’s estate. Rio Hamilton estimates the cost so far in the continuing case to be well over $100,000. That doesn’t include his own legal fees.

There are glaring holes in the system that must be fixed.

According to court records, there was no hearing on the emergency petition that would have allowed all sides, including her son, to weigh in before the judge made his decision. In fact, the petition filed by a Las Cruces lawyer listed Rio Hamilton as the petitioner, while stating (with no physician exam) that Dorris was suffering from vascular dementia. Hamilton denies he sought the corporate guardianship and said he took his mom to see the lawyer only in an attempt to get a power of attorney after a bank had turned down his request because his driver’s license had expired.

He finally succeeded in May – nearly two years later – in being named his mother’s guardian, but there is still a court-approved conservator in charge of her nest egg. Or, rather, what’s left after court-appointed entities and lawyers have billed.

Hamilton has persevered. He can see his mother and take her on outings, something she is happy about. But the case is not concluded. At some point, he said, his mother would like to move to a different facility, or even back to her home – which the conservator would have sold except Rio’s name was on the deed.

But loved ones and their families need additional protections.

Supreme Court Justice Shannon Bacon told the legislative Health and Human Services in August that guardianship reform in New Mexico is not complete.

“We have got to change the emergency guardianship process … that allows somebody on a very bare-bones petition to assert that a guardian needs to be appointed immediately” with a promise to come back later with detailed proof, she told the panel.

Bacon acknowledged that emergency petitions are necessary at times. “Mom is in a nursing home and her son has gotten hold of her debit card and is withdrawing funds as fast as he can,” Bacon told lawmakers. “So, let’s put a stop to that through an emergency petition. That’s an appropriate use.”

But Bacon said the courts also see attorneys file emergency guardianship process with a promise of proof to follow. She told lawmakers that, in some cases, the judge “will kick the can down the road” and not be presented in timely fashion with the proof necessary by clear and convincing evidence that the individual is in need of a guardianship or conservatorship.

Lawmakers could make a significant improvement by adopting provisions of the model Uniform Guardianship Act drafted by the national Conference of Commissioners on Uniform State Laws in 2017.

The model code not only requires the person who would be placed in an emergency guardianship to have a lawyer appointed immediately, but also that a hearing be held in as little as five days on whether such a drastic measure is warranted. That would have given Dorris Hamilton a lawyer and, perhaps, the opportunity to talk to the judge face to face as she tried to do when she was taken from her home – ostensibly for her own good.

So, yes, New Mexico has made important strides in reforming the process. Petitions seeking guardianships and conservatorships are public record. There is a grievance process. A system of monitors is being set up. But the story of Dorris Hamilton and others like her shows there are more steps to be taken to ensure an emergency guardianship that completely upends a person’s life is absolutely necessary and that no less-restrictive measures will suffice.

In the words of former Senate President Pro-Tem Mary Kay Papen, D-Las Cruces, who had known Dorris Hamilton for years, “I find it quite scary as we get older that they can walk in and do this, even though you have children. … That they are able to take you away. … I find that very frightening.”

Indeed. It should frighten all of us. Including New Mexico legislators who need to enact additional reforms that, in the words of Justice Bacon, would “make the emergency process truly for an emergency and have extra safeguards in place so it cannot be abused by anybody.”

This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.

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Editorial: NM has made strides to rein in bad conservatorship actors, but new cases show there’s so much more to do

Editorials Editorial: Judge sends 47-year message on abuse, duty of guardianships

By Albuquerque Journal Editorial Board

U.S. District Judge Martha Vázquez sent a powerful, 47-year message to the guardianship/conservatorship industry in New Mexico last week. That’s the length of the prison term she imposed on Susan Harris, founder and former president of Ayudando Guardians Inc. of Albuquerque, during a sentencing hearing in Santa Fe.

For Harris, 74, it is in effect a life sentence – one that is more than justified.

It’s also one that others who are given court authority to oversee the lives and finances of vulnerable people incapable of making their own decisions would do well to heed when it comes to exploiting those they are entrusted to safeguard.

The criminal enterprise that operated out of the firm pilfered more than $11 million from client accounts over a decade. Yes, hard as it is to believe, the courts, a state guardianship agency, the Social Security Administration and the U.S. Department of Veterans Affairs never figured out Ayudando’s principals – Susan Harris and chief financial officer Sharon Moore – were systematically stealing government benefits and other money from their clients to finance a lavish lifestyle for themselves and their families. Illegal perks included Hawaii vacations, Caribbean cruises, cars, RVs and a private box at University of New Mexico basketball games with nightly catering tabs in excess of $3,000.

The criminal case is over, with Moore, William Harris (Susan’s husband and Ayudando guardian representative) and his stepson, Craig Young (Ayudando caseworker) also sentenced to prison.

How could this have happened in an industry overseen in many cases by the courts and, depending on the client, by other state and federal agencies?

In part it’s because we have had a history of ignoring those who need this kind of help and their families when they have complained. In the case of Ayudando, clients who said they weren’t receiving the appropriate money from their accounts simply were disregarded. It took the courage of company employees to come forward as whistleblowers in 2016 and spur a federal investigation that finally brought down this horrific scheme, fueled by what Vázquez characterized as “unbelievable greed.”

There has been plenty of this kind of abuse in the industry, and on occasion it has been prosecuted in New Mexico.

In February of 2019 Paul Donisthorpe was sentenced to 12 years in federal prison after his decade-long scheme to steal roughly $6.8 million from 70 clients of his nonprofit trust company. Desert State Life Management, a state-regulated guardianship and financial firm, was brought down by state regulators who conducted an overdue audit and noticed irregularities. Desert State acted as conservator and fiduciary for developmentally or physically disabled and elderly individuals.

“The victims,” U.S. District Judge James Browning said in passing sentence, “will have to suffer for the rest of their lives so he (Donisthorpe) could live a high-end lifestyle.”

Sound familiar?

Vázquez correctly noted the Ayudando case inflicted damage beyond that suffered by vulnerable clients, including military veterans who relied on Ayudando to manage their government benefits.

“The scope of the defendants’ fraud and their success fooling state and federal agencies for years,” Vázquez said at sentencing, “has done significant damage to the public’s confidence in New Mexico system of guardianship as well as confidence more generally in the government’s ability to protect its most vulnerable citizens and veterans to whom it owes its highest duty of care.”

Following publication of a series of Albuquerque Journal stories beginning in November 2016, the New Mexico Supreme Court and Legislature have taken important steps to improve accountability in the system of guardianships and conservatorships. There is now more transparency. Families have more recourse to intervene on behalf of loved ones, and the state auditor and the Administrative Office of the Courts will provide additional oversight thanks to legislative reforms enacted just this year.

The system is better. But to make a real difference it will require meaningful oversight, actually listening to vulnerable clients and their families and zero tolerance for exploitation – a message delivered loud and clear by Judge Vázquez.

This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.

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Editorial: Judge sends 47-year message on abuse, duty of guardianships

OPINION: Florida Should Put Guardian Abuse Scammers Out of Business

by Lou Holtz
The legal system is supposed to protect the vulnerable, but too often it is manipulated into exploiting them. From coast to coast, guardianship and conservatorship abuse — where seniors are cheated and stripped of their liberty and property — is a glaring, yet underreported, example of this insidious phenomenon.

The hit Hollywood movie “I Care A Lot” and high-profile cases of guardianship and conservatorship abuse, like those of Britney Spears and Joann “Mama B” Bashinsky, have brought the issue to national attention, which long has been needed. But as a Florida resident, I’ve been aware of this disturbing practice for some time. I’ve taken measures to protect my family from this kind of abuse, but too many Americans remain unaware of just how widespread and terrible guardianship abuse and conservatorship abuse truly are.

Guardianship abuse may more correctly be thought of as guardian, medical and legal abuse, because without unethical, predatory individuals in all of those fields working together, such abuse is impossible carry out. It takes more than a corrupt guardian to do these terrible things — it takes a corrupt guardian, a corrupt lawyer, a corrupt doctor, often a corrupt nursing home or hospital and, finally, corrupt judges.

Guardianship laws and conservatorship laws are well-intentioned, designed to protect the truly incapacitated and vulnerable from those who would take advantage of them. But as Florida’s, and indeed America’s, guardianship-abuse epidemic shows, this system that was put in place to protect individuals from exploitation is far too often subverted to actually exploit them.

Legislators in Florida are trying to fix the problem, but there’s still a long way to go, and the issue needs far more attention at the national level from Congress. When a system designed to protect people can be easily twisted into a weapon to cause harm, there’s a serious problem. It’s time we end that problem in the guardianship system.

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Opinion: Florida should put guardians abuse scammers out of business

An audit of guardian program is greeted with hostility, the wrong response | Editorial

By Orlando Sentinel Editorial Board

It’s bad enough when an audit finds a government office has fallen down on the job.

It’s worse when the government office doesn’t own up to those shortcomings.

That scenario played out in a recent examination of the way the Orange County Clerk of Courts handles its responsibilities to monitor cases where guardians are appointed to oversee the affairs of someone who is unable to do it themselves.

The audit submitted earlier this month by Orange County Comptroller Phil Diamond documented multiple shortcomings by the Clerk of Courts office, which is run by Tiffany Moore Russell. As is the nature of audits, Diamond’s office brought the receipts.

Rather than being chagrined, Moore Russell answered many of the criticisms with what amounts to a not my job response. She rejected in whole or in part 11 of the comptroller’s 13 recommendations for improvement.

Her response is not an encouraging sign that the clerk’s office is redoubling its efforts to ensure guardians don’t rip off or abuse their wards.

Lack of scrutiny goes to the heart of the widespread scandal centering on Orlando-based guardian Rebecca Fierle, who is facing criminal charges in one of the cases she handled.

Guardians like Fierle essentially are granted the ability to exercise legal rights that belonged to someone who, for any number of reasons, has become incapacitated. It’s an awesome responsibility, and one that requires intense scrutiny by the court system to ensure the guardians’ wards are kept safe and don’t get cheated.

Some of the responsibility for oversight falls to Florida’s clerks of courts, the elected offices whose many responsibilities include serving as a bureaucratic watchdog for the guardian program.

Keeping watch is primarily where the comptroller’s office found Moore Russell’s office came up short.

Problems included failing to monitor guardianship cases, failing to notify the court when problems were discovered and insufficient training of the clerk’s employees, which seems particularly important given the complex and arcane nature of this kind of work.

Tiffany Moore Russell

Some cases went unmonitored by the clerk’s office for years, according to the audit. In one instance, the clerk’s office was unaware that a guardian’s ward had died nearly three years earlier.

Audits are complicated, so rather than attempt to summarize the entire 86-page report, here’s just one illustration:

The audit checked 24 guardians and found 19 of them hadn’t provided all the legal documents they’re required to file, including credit histories, criminal background checks and proof of a bond, which is kind of an insurance policy.

These documents are important because guardians often have access to their ward’s finances. If someone’s been charged with embezzlement, for example, that’s good to know.

Moore Russell’s answer to that criticism, and the recommendation to do better, was that if something is found to be missing, the clerk’s office makes a note of it. Problem is, those notes don’t automatically get forwarded to the judge in charge of a guardian’s case, according to Diamond’s office.

The other problem is that the audit found the clerk’s office had noted missing information just once in the 19 instances where legal documents were lacking.

It’s as if the clerk’s office views itself as little more than a glorified Dropbox, a depository for information rather than a critical evaluator of information.

No one is perfect, especially when it comes to keeping track of countless documents as a clerk of courts office is expected to do.

Audits are a way to identify weaknesses and strengthen the way things are done.

That only works if the people who are subject of the audit are willing to demonstrate some self-reflection and humility.

In politics generally, and with this audit specifically, the preferred response is “we’ll do better” instead of “nothing to see here.”

Editorials are the opinion of the Orlando Sentinel Editorial Board and are written by one of its members or a designee. The editorial board consists of Opinion Editor Mike Lafferty, Jennifer A. Marcial Ocasio, Jay Reddick and Editor-in-Chief Julie Anderson. Send emails to insight@orlandosentinel.com.

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An audit of guardian program is greeted with hostility, the wrong response | Editorial 

 

See Also: 

Audit: Guardian program lacks proper oversight 

 

Audit finds missteps in Orange County Clerk of Courts handling of guardianship cases

Editorial: Who guards the guardians?

BY ALBUQUERQUE JOURNAL EDITORIAL BOARD

Sunday, July 5th, 2020 at 12:02am

Much has changed for the better since the Journal published an investigative series in November and December of 2017 titled “Who Guards the Guardians.”

Those stories by reporter Diane Dimond detailed complaints about a secretive system. Critics, most often family members of incapacitated people, complained about having little recourse to abuses that ranged from overspending and mishandling of assets to virtual carte blanche authority by court-appointed guardians and conservators to ignore and override the wishes of families when it came to concerns for their loved ones.

Despite heated denials by many within the system that anything was wrong, Journal Investigative Reporter Colleen Heild continued to probe complaints of abuse and misconduct. Meanwhile, the state Supreme Court took notice and along with other reforms established a process that has led to more transparency and created an avenue in which family members and others can petition the courts to address their grievances.

Justices Charles Daniels, who passed away in 2019 after retiring from the court, and Judith Nakamura were instrumental in advancing reforms. So were retired District Judge Wendy York of Albuqueque, who headed a Supreme Court-appointed commission to study the issue, and District Judge Shannon Bacon of Albuquerque, who is now a Supreme Court justice.

So it was fitting that Bacon announced last week that the New Mexico State Auditor’s Office will now have a permanent watchdog function over the nearly 6,000 cases in which state district courts have appointed guardians and conservators to manage the affairs of those deemed incapacitated.

The announcement followed a one-year pilot project undertaken by State Auditor Brian Colón, whose auditors found 194 “risk factors” in annual reports filed among more than 300 conservator cases sampled. The factors included lack of supporting documentation, conflicting information, and the fact that assets of the protected person being were understated or unaccounted for. Auditors also found instances of checks written directly to conservators. Or conservators charging large fees for services or reimbursements of expenses. The auditors sent more than 40 letters to judges in the cases laying out the concerns.

This kind of outside oversight is unprecedented.

With a green light from the judiciary, Colón’s office will now have oversight and involvement in what had traditionally been a closed system that sometimes excluded even family members of the incapacitated person. Colón appeared with Bacon on a Zoom video conference to make the announcement.

“We have an opportunity to step up oversight …” Colón said. “We’ve got to fill in the cracks (in the system) so we know those most vulnerable don’t fall through.”

Bacon said the courts and Legislature have already added more transparency to the system and enhanced reporting requirements. Now, she said, the courts plan to implement measures “to give auditors open access to guardianship and conservatorship cases.” Bacon said the auditors have been granted special access to online reports that typically aren’t public.

On the issue of reporting, though, Colón’s auditors recommended guardians and conservators provide supporting documentation instead of simply listing the amounts of assets and expenditures on standardized forms filed with the district courts.

The Supreme Court can make that happen by adopting a rule requiring it.

The auditor’s report also recommended “increased focus on review of financial affairs of protected persons with substantial assets.” That makes sense.

The state auditor also said the recent criminal sentences of two of four defendants in the now-defunct Ayudando Guardians Inc. underscored the need for more oversight in New Mexico. The company’s top officials stole millions of dollars from clients to finance a lavish lifestyle in a nearly decade-long scheme.

In contrast with a closed system that appeared to stonewall complaints, Bacon and Colón urged people with concerns to fill out a grievance form found on the state Supreme Court website. The forms are to be submitted to the district court where the case is filed. Colón said a copy also can be sent to his office.

In another major step forward, Bacon said the judiciary wants Colón’s office to be able to do random audits and go to banking institutions to review records, if needed. The details are still to be worked out with the courts.

“This ongoing process and partnership,” Bacon said, “is how we increase the sunshine and avoid the abuses of the past.”

The judiciary, lawmakers and the auditor all deserve credit for the work they’ve done. Now is the time to push ahead on the rest of the reform items to prevent the exploitation of incapacitated New Mexicans and give a voice to their loved ones.

This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.

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Editorial: Who guards the guardians?

Bogus 'guardians' steal money, sometimes life | Opinion

Editorial Board, Lakeland Ledger

The concept of “retirement,” along with government social welfare programs to support old folks who no longer worked, dates to the 1880s. That’s when German Chancellor Otto von Bismarck concluded that a little socialism for the elderly — Germany set retirement its age at 70 — was better than blanket entitlement programs for all his constituents.

As Bismarck’s idea circulated across the Atlantic, Florida didn’t take long to catch on. The New York Times noted a few years ago that by 1910 middle-class retirees joined the wealthy in discovering the Sunshine State as an appealing place to live out their golden years. Retirement communities began popping up within the next two decades.

Thus, for a century Florida has marketed itself and catered to the elderly, becoming a top destination of elders seeking a retirement pasture.

But that influx of senior citizens made Florida a target-rich environment for hucksters, shysters and ne’er do wells out to con them — or harm them in other ways. And on occasion that abuse came from those entrusted to watch out for their interests.

Now, state Rep. Colleen Burton has joined an effort to better protect our seniors.

The Lakeland Republican has sponsored a bill that would toughen oversight of the state’s guardianship program for seniors, which is managed by the state Department of Elder Affairs.

At a guardian hearing in Judge Lisa Davidson's courtroom at the Moore Justice Center in Viera, guardian Manda Wright replaced Rebecca Fierle for two Brevard residents as their guardian. Judge Lisa Davidson at the hearing.  (Photo: MALCOLM DENEMARK/FLORIDA TODAY)

Focus on this arm of the tiny agency began last summer after media reports surfaced about Rebecca Fierle, an Orlando-based guardian. The Florida Department of Law Enforcement investigated her after one of her clients, Steven Stryker, 75, died from choking on food while hospitalized in Tampa. Fierle reportedly filed a “do not resuscitate” order, which precluded hospital staff from treating Stryker, without permission from either Stryker or his family.

Subsequently, an audit by Orange County determined Fierle had billed Advent Health more than $4 million over 10 years, double-billing the hospital system and court for the same services. Fierle also had clients in Volusia and Flagler counties, and after news of the Tampa case broke, Volusia County Circuit Judge Margaret Hudson started requiring that guardians seeking a DNR appear before her for an evidentiary hearing with medical testimony and notice to the ward’s family.

A few months before Stryker’s case became news, the website RealClearInvestigations.com reported on Lillie White, an 88-year-old from Palm Coast. During an August 2016 doctor’s appointment, while her niece remained in the waiting room, a guardian took White and declined to say where she went. Two years later White’s family learned that her sole granddaughter, who had been cut out of White’s will, had persuaded a judge White needed guardianship.

White, who was worth $4 million, was housed in an assisted living facility 35 miles from home. The guardian, without White’s family’s knowledge, sold her house and some of her other assets to pay the fees of the guardian as well as a court-appointed lawyer and other people overseeing her case.

WFTS in Tampa recently reported on a Pinellas County guardian charged with draining her 92-year-old client’s bank account of $541,000 in just 10 months. She had convinced him to grant her power of attorney over his affairs and proceeded to pay herself $1,600 a day.

Meanwhile, the state’s director of the program resigned last year amid a lengthy backlog complaints about guardians — which the Department of Elder Affairs now says has been addressed.

In response, Burton and Sen. Kathleen Passidomo, R-Naples, have filed bills that will strengthen protections for the more than 3,800 Floridians managed by guardians. Included in the proposals are requirements that:

• Judges look more closely at possible conflicts of interest and other disqualifying factors before appointing a guardian;
• Guardians seek court approval for DNR orders, and be prohibited from seeking their own appointment;
• Guardians could not recieve bonuses, referral fees, commissions or other potential kickbacks from service providers.

We believe that most of the state’s 500-plus guardians are professional, conscientious, devoted to the best interests of their wards and law-abiding.

But as noted above, some are not. In order to protect Florida’s elderly who need this service, as well as the state’s reputation as a haven for senior citizens, we must have stricter rules governing this program. For working for that, we applaud Rep. Burton and Sen. Passidomo.

This editorial was originally published in the Lakeland Ledger.

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Bogus 'guardians' steal money, sometimes life | Opinion