Guardianship gap: Give people a right to counsel for proceedings

People who face losing control of the right to manage their lives should have the advice of an attorney

 

The Editorial Board

Pittsburgh Post-Gazette

It’s hard to imagine being stripped by a court of the right to make decisions about finances, medical care and other matters. It’s even harder to imagine that happening without representation or advice from a lawyer.

Yet that’s exactly what can happen in Pennsylvania if a person is deemed unable to conduct his or her own affairs. A court then appoints a guardian who can make life decisions and manage finances for the person.

There is no right to have an attorney during this process. And that is wrong. People who face losing control of the right to manage their lives should have the advice of an attorney and have representation should they wish to fight against a claim that they are incompetent.

About 18,400 adults in the state, more than half over age 60, are under guardianship, according to Spotlight PA, an independent, nonpartisan newsroom of which the Pittsburgh Post-Gazette is a partner.

Problems with the guardianship process in Pennsylvania were clear, and the state Supreme Court took action by creating an Elder Law Task Force to make recommendations on guardianship and other reforms. The task force issued a report calling for reforms in 2014. While some reforms happened, a recommendation to require appointed counsel never was implemented.

The weird thing is that officially, the goal of providing legal counsel is marked as accomplished. It depends on the definition of accomplished. For the state’s Office of Elder Justice, charged with putting the recommendations into force, accomplished means the idea was considered but rejected. Noah Webster would not be pleased.

Several members of the task force rightly expressed dismay that a right to legal counsel remains undone. A few judges appoint counsel in guardianship cases because they think it’s the right thing to do — they deserve commendation. The law should require all judges to follow suit.

And guardians aren’t subject to sufficient oversight. An improvement was made in 2018 when new software was made available for guardians to submit annual reports. The software identifies possible problems in the guardian’s handling of financial affairs. That doesn’t prove wrongdoing. The trouble is some jurisdictions are overwhelmed because of alerts about possible problems, and they don’t have the manpower to follow up.

Another weakness in the reporting system is that guardians are not required to submit bank statements, receipts and other documentation to verify their reports.

First require appointed counsel. Then legislators have more work to do to protect residents of the commonwealth under guardianship.

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Guardianship gap: Give people a right to counsel for proceedings

Pennsylvania's guardianship system has room for improvement, some in the field say

Roughly five years ago, the state Supreme Court realized that Pennsylvania's expanding aging population would likely create a major increase in court cases dealing with the protection of the elderly.

At the time, Pennsylvania ranked fourth in the nation in the percentage of residents 60 and older, and the number was only expected to increase.

So the court created an Elder Law Task Force in 2013 made up of 38 representatives to examine the current system, identify concerns and find ways to improve practices to best protect against elder abuse.

The task force released a list of 130 recommendations in November 2014, many of which addressed the guardianship system. The suggestions included the need for a statewide management system to track cases and identify problems; better training for judges ruling in guardianship hearings; and amendments to require background checks for guardians and representation for incapacitated individuals.

Some of those issues are being addressed and a statewide tracking system is expected to be in place by the end of the year, but those within the system agree there are still other aspects that can be fixed to best protect the rights and lives of the elderly.

In the works

One of the biggest criticisms of the guardianship system is the lack of an organized statewide method to maintain and monitor the data, making it nearly impossible to screen for potential issues.

In Berks County, cases are maintained by the county Orphans Court staff by hand in a desk ledger, but practices vary from county to county. With that setup, there's no way to know even how many adults are under guardianship.

Guardians, both family and professional, are directed to submit annual reports for the courts to review to ensure they are doing their job properly, but those filings also are not tracked.

To address those issues, the Information Technology Department for the Administrative Office of Pennsylvania Courts created a Guardian Tracking System to track compliance in mandatory guardian reporting and to provide statewide statistics.

Paul Stengle, CEO of The Arc Alliance, which provides services including guardianship, said the system will cause more work for his staff, but they fully support it.

"They worked hard on this, and from what I've seen, it looks very good," he said.

State Rep. Mark Gillen is taking the lead on another key concern regarding the lack of statutory standards for guardians. The Robeson Township Republican introduced legislation in March to require background checks for individuals seeking to be guardians.

The bill came shortly after a three-day Reading Eagle series that analyzed the guardianship system and found courts in Philadelphia and Montgomery counties appointed a professional guardian who had a 2005 felony theft conviction to manage the estates of more than 75 incapacitated adults.

Gillen's bill would disqualify convicted felons from guardianships and require federal and state criminal background checks. It's garnered bipartisan support and is one of the first steps to establish a set of standards for guardians as suggested by the Elder Law Task Force and other groups.

However, advocates such as senior attorney Sam Brooks from Community Legal Services in Philadelphia, believe the bill needs to be amended so it doesn't blindly bar willing family members. Brooks believes family guardians are almost always a better fit than professional guardians, claiming professionals' large caseloads keep them from giving adequate attention and care to their wards.

Ongoing concerns

However, Brooks' biggest concern stems from the incapacitation hearings at the start of the guardianship process. According to the current state statute, a potential ward does not have to be present for the hearing if a physician testifies it would be harmful for him or her. There's also no requirement that potential wards be represented by counsel.

Brooks said there is legislation in the works to require counsel in all cases, but he said that doesn't fully address the problem. In his experience in Philadelphia courts, Brooks said he too often sees court-appointed counsel present evidence against his or her client and give his or her own opinion on the case. He said that determination needs to be made by the judge.

"There should be a mandate that court-appointed counsel zealously represent the wishes of the alleged incapacitated," Brooks said.

Stengle said Arc, which becomes involved after the hearings, also prefers individuals to have representation, noting that Berks is better at that than other counties.

"We would like to see more representation for those people to make sure they're represented and their rights are protected," he said.

Stengle said Arc also has been lobbying for legislation for more limited guardianships, instead of the usual plenary appointments. While the state statute says limited guardianship should be considered, Stengle said too often individuals are found completely incompetent and stripped of their full rights.

"We would love to see the court utilize more judgment in giving limited guardianship," he said, adding that would allow wards to choose where they live and spend their time but not manage financial accounts.

Stengle also took issue with the way the current setup rewards guardians who place individuals in a nursing home with a monthly $100 reimbursement from Social Security. He said it costs much more to keep individuals in the community because most wards don't have funds.

"It seems like they should reinforce you to keep them in the community instead of a nursing home," he said.

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Pennsylvania's guardianship system has room for improvement, some in the field say