Across
the US, uneven oversight and accountability mar the legal process by
which adults are placed under guardianship. The lack of rigor has opened
the door to stolen funds, judicial errors, bulging caseloads, and legal
entanglements for vulnerable people.
But one straightforward
reform could help ensure adults placed under guardianship aren’t abused,
defrauded, or silenced. Nevada overhauled its system and achieved
meaningful results. Advocates are waiting for the rest of the country to
catch up.
Triggered by high-profile guardianship scandals, Nevada
in 2017 began requiring independent lawyers be assigned to represent
adults whenever a petition for guardianship is filed. This legal help
comes at no cost, much like in criminal cases where indigent defendants
are guaranteed free counsel.
States typically say adults under
guardianship have a right to counsel, but Nevada goes significantly
further. It requires that representation come before a petition is
approved, that the lawyer’s sole role is to represent the protected
person’s interests, and that the legal guidance is free. Court fees pay
the costs.
With more than 2 million people, Clark County, home to
Las Vegas, is the epicenter of a system in which legal aid lawyers
scrutinize guardianship petitions.
The idea was to stop guardians
from depriving people unnecessarily of their liberty and stealing their
money. “Before the scandal, most of the time the individual and their
families didn’t even have notice that this was going on or didn’t have
the ability to challenge it,” said Barbara Buckley, executive director
of the Legal Aid Center of Southern Nevada.
When a petition is filed, Buckley said, lawyers start by asking their clients to-the-point questions.
“Do
you know a guardianship has been filed against you? And in some cases,
they may say yes, this is my daughter and I need their help and this is
fine,” she said. “In some cases, they say, ‘What? By who? I have never
met this person before in my life.’”
When the client has grounds to push back, Legal Aid Center lawyers press the point in court.
In 2021, they defeated 25% of guardianship petitions in Clark County, according to the center’s most recent annual report. The core reason: The guardianship wasn’t needed.
In
January, Buckley said the office had 2,344 open adult guardianship
cases, plus 563 involving minors. Buckley’s staff includes 15 adult
guardianship attorneys, four focusing on minor guardianship cases, four
advocates, and five legal assistants. Its annual budget for the unit:
$3.2 million.
Filling a Void
Nevada’s
overhaul alone couldn’t resolve all the problems documented in the
Bloomberg Law series. But having independent lawyers on the front end,
courthouse veterans say, can steer away unnecessary cases and provide
protection for vulnerable adults.
Such protections are crucial.
Across the US, adults can be placed under guardianship with little
warning or legal help; once in, they encounter a system in which
guardians are rarely regulated or certified, and where judges often
provide scant scrutiny. More stringent oversight could’ve aided Britney Spears, who spent years fighting a conservatorship.
Lawyers like those in Nevada fill a void, providing accountability often sorely lacking.
Nevada’s
system is “a wonderful step forward,” said Erica Wood, the former
assistant director of the American Bar Association Commission on Law and
Aging.
She noted that many state laws provide a right to counsel,
but that can be “an empty right” unless the court consistently appoints
counsel for those without representation and the state covers the cost
for those who can’t pay. “Having the right to counsel doesn’t mean the
person will actually get counsel in practice–or if they do, often it’s
not counsel as an independent advocate but more of a court
investigator.”
A December 2022 ABA survey
bears this out. At least 25 states say those under guardianship are
“entitled” to counsel, have the “right to be represented,” or can
request counsel, all standards below Nevada’s mandate. Another 21 states
say counsel “shall” be appointed, but that can be murky. Pennsylvania
says, for instance, that counsel “shall be appointed in appropriate
cases.” Maine says lawyers shall be appointed “when respondent requests”
or under other conditions.
New Hampshire, by contrast, says the right to counsel is “absolute, unconditional,” and the state seeks to avoid unnecessary guardianships. Nevada says legal counsel “must” occur.
So why aren’t others following Nevada’s model?
“All of this stuff costs money,” said Alice Liu McCoy, who became executive director of New Mexico’s Developmental Disabilities Council after guardianship fraud left that state agency in turmoil.
McCoy,
a former disability rights lawyer, said guardianship is too often a
first resort when it should be the last. She agrees the changes to
Nevada’s system have worked.
 |
Alice Liu McCoy
became executive director of New Mexico’s Developmental Disabilities
Council after a guardianship scandal rocked the state. Photographer: Adria Malcolm/Bloomberg |
Legal Help
Across the country, independent
lawyers have been the difference in guardianship cases for those who get
trapped in the system, Bloomberg Law found.
In Indiana,
disability rights lawyer Justin Schrock helped Nicholas Clouse end a
guardianship that lasted several years after he recovered from a brain
injury sustained in a traffic accident; Clouse remained under
guardianship even after marrying, having a child, and gaining work. Now
Schrock is working to help Sara Abbott, a young adult with autism whose
case was also detailed earlier in this series, terminate a guardianship
in which her former guardian billed nearly Abbott’s entire monthly
income while questioning the family’s spending.
Georgia Advocacy
Office senior staff attorney Julie Kegley helped Kalei Bulwinkle be
freed from guardianship in a case in which the local judge was found to
have improperly restricted her rights. In Texas, disability rights
lawyer Kayla Puga helped Ruby Campos end her guardianship more than a
decade after it began. “One of the biggest decisions I couldn’t make on
my own was the right to speak for myself,” Campos said.
Without such legal backing and support, fraud or abuse can fester.
In
New Mexico, directors of Ayudando Guardians stole nearly $12 million
from 1,000 clients, leaving many destitute as the guardians
globe-trotted and rented sports skyboxes. In Nevada, a court-appointed
financial guardian named April Parks was sent to prison for up to 40 years in 2019 after admitting she stole more than half a million dollars.
Bloomberg Law asked legal professionals to analyze topics including the role guardianship plays in states and what reforms would serve vulnerable populations.
No Traction
With more transparency, abuses occurring in the shadows could come to light.
“All
other states have done an excellent job of making sure that
investigations like I ran in Nevada are almost impossible to do,” he
said. “Because this profit center today is so big.” Experts speculate
that guardians control more than $50 billion in assets for those under court control.
In Nevada, the changes have made a tangible difference.
Legal
Aid Center lawyer Debra Bookout helped Victoria Gonzales, a 35-year-old
woman with cerebral palsy, terminate a guardianship that had lasted
more than a decade.
 |
Victoria Gonzales, at left, escaped her guardianship with help of Legal Aid Center lawyer Debra Bookout. Photographer: Bridget Bennett/Bloomberg |
Gonzales had been adopted by her grandmother. But after her
grandmother died, another relative became Gonzales’ guardian in 2009.
Gonzales said she felt powerless. She later connected with Bookout,
directing attorney for the office’s Guardianship Advocacy Project, and,
in court in November 2021, officially escaped the system.
“Victoria,
we’re going to give you your wish. We’re going to give you back your
guardianship,” she recalled the judge saying. Her first thought:
“Freedom!”
Now living on her own and working as a movie theater
usher, she said she finally feels empowered to make her own decisions.
“I feel like there’s a whole bunch of confidence,” she said, “and no one
can tell me what to do.”
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