Next Avenue: Guardianship Laws are Improving, Problems Persist

(Editor’s note: This is Part 2 of a three-part series on guardianship abuses appearing this week on Next Avenue.

Here are Part 1 and Part 3.)

Cases of abusive guardianships have made headlines for decades. Horrific tales — of relatives fighting over Mom to access her savings, professional guardians draining an estate through exorbitant fees or nursing homes filing for guardianship to keep their beds filled — have been all too common.

When a judge imposes legal guardianship or conservatorship, everything changes.

After a hearing that might last only minutes, the ward or “incapacitated person” may no longer be allowed to decide where to live or whom he or she will see. If a guardian is appointed for you, that person will choose whether you get any spending money. You won’t be able to enter into contracts, including marriage, or demand a different guardian or your freedom back — even if your guardian is abusing you or stealing your money.

Nationwide Reforms

Many such arrangements are undoubtedly necessary and benign. And the ranks of guardians and conservators include some highly dedicated, caring and selfless people.

Yet this Next Avenue investigation has come to a key conclusion: changes are desperately needed.

Yes, lawyers, judges, advocates and politicians have fought hard for reform in the guardianship and conservatorship systems. (Guardianship generally refers to control over a person; conservatorship, to control over a person’s finances.) And dozens of new laws have been put in place throughout the country.

But many experts believe it’s all happening far too slowly — and some of the most finely crafted laws remain mere words on paper.

“Even though we’ve made changes in the statutes, it’s as if we’re living in a virtual reality,” said A. Frank Johns, a Greensboro, N.C. attorney and a national leader in the field of elder law. “When you go out and try to look for the application of those changes, it’s nowhere to be found.”

Landmark Investigation

Experts say there was little widespread recognition or publicity about the problems in guardianships until 1987, when the Associated Press published a blistering six-part series of articles following a year-long investigation.

Then as now, there were no reliable statistics on exactly how many guardianships there are nationwide; the AP estimated 300,000 to 400,000. Today, experts give a range from 1 million to 2 million. States do not keep track of the numbers.

The exposé prompted impassioned calls for reform and led to a host of new state laws.

*Some of the changes since then include these requirements:
*That the would-be “incapacitated person” is notified of the guardianship hearing and be present if desired
*That he or she has the right to an attorney
*That there is “clear and convincing” evidence that the person is incapacitated, and, in some states, that guardianship is necessary to avoid harm
*That (in some states) a medical expert assesses the proposed ward.

Efforts in Michigan

Changes in the laws didn’t always translate to changes in the courtroom, however.

For instance, after the AP series came out, Michigan passed a comprehensive new law. “After the Guardianship Reform Act of 1988, Michigan has probably had the best or among the best statutes in the United States,” said attorney Bradley Geller, who has spent his career in the field, most recently as an assistant long-term care ombudsman for Michigan. However, he added, “that has, over the past 27 years, meant absolutely nothing.”

Geller attended a conference of probate judges when the law took effect. “One probate judge rose and said, ‘Guardianship reform will come to Michigan when all the sitting judges are dead.’ And he was, unfortunately, optimistic, because even with a new generation of probate judges, the problems remain,” Geller said.

Full Article and Source:
Guardianship Laws are Improving, Problems Persist

See Also:
Guardianships in the US:  Protection or Exploitation?

Guardianship in the U.S.: Protection or Exploitation?

(Editor’s note: This is Part 1 of a three-part series on guardianship abuses appearing this week on Next Avenue.)

Ginger Franklin - Credit: Tennessee Bar Association

Ginger Franklin was just shy of her 50th birthday when she fell down the stairs of her Nashville-area townhouse in 2008. A marketing representative for Sam’s Club, she was taken to the hospital with a severe brain injury. Doctors weren’t sure if she would survive.

Since Franklin had not designated anyone to make decisions for her if she became incapacitated, and with no immediate family, her aunt was advised to petition the court for a guardian. The guardian, a lawyer appointed by the county, placed her in a group home for seriously mentally ill adults.

But Franklin was not mentally ill. And she did what no one expected her to do: she recovered.

When she returned home from a rehabilitation center seven weeks later, however, the guardian “told me that I didn’t have a home anymore and that my townhouse was empty,” Franklin said.

Some of these cases are the ugliest family cases you can imagine.... somebody who did not get access to Mom and Dad’s money [against] someone who did.

— Brenda Uekert, National Center for State Courts

As is common in guardianship cases, the court granted permission for the guardian to sell Franklin’s home and its contents. The owners of the group home where she was placed then put Franklin to work: She was forced to do the grocery shopping, cook, dispense medication, watch over the other residents of the house and clean the owners’ personal home — for no pay, Franklin said. Meanwhile, she was paying $850 monthly rent to the owners, plus $200-per-hour attorney fees to the guardian for such tasks as writing checks for Franklin’s expenses and leaving phone messages, according to a court document.

With the help of an advocate, and media attention, Franklin fought the guardianship in court, winning her freedom in 2010 after two long years of having no legal rights. She now lives independently in the Nashville area and has sued the guardian.

“It’s quite an understatement to say I was devastated,” she told Next Avenue. “I don’t trust people anymore. I lost everything — because I fell down the stairs.”

More Will Enter ‘The Danger Age’

Franklin’s case, originally investigated by The Tennessean newspaper, is just one of many cases of guardianship and conservatorship abuse across the country.

In a 2010 report, the U.S. Government Accountability Office (GAO) found hundreds of allegations of physical abuse, neglect and financial exploitation by guardians in 45 states and the District of Columbia between 1990 and 2010. Guardians also stole $5.4 million in assets from their wards in that period, the GAO said. (The GAO is currently working on an updated report.)

As the boomer population moves into old age, the numbers of people affected by guardianship and conservatorship will rise “tremendously,” said Jennifer Wright, a professor at the University of St. Thomas School of Law in Minneapolis who directs the school’s Elder Law Practice Group.

“There are more of us who are going to enter the danger age,” she said.

With as little as a single document — and in some cases, not even a court hearing — older adults can see their most basic rights stripped away. They cannot vote, get married or get divorced. A family member or a stranger appointed by the court will decide where they will live, how their money will be spent, what health care they will get or not get, when they will go out, when and where they may travel and whom they are allowed to see.

Guardianships: Difficult to Challenge

Rarely is an “incapacitated person” or ward able to get a guardianship or conservatorship terminated — until death, that is. Franklin was, in that sense, very lucky.

“Go ahead and see what you can do, because you have been deemed incapacitated, so everything you say or do is meaningless,” said Brenda Uekert, principal court research consultant with the National Center for State Courts. “You can’t even get an attorney, because a judge has already determined that you don’t have the ability to make decisions for yourself.”

Those who do try to fight often end up paying exorbitant amounts of money.

“Many families go bankrupt because they believe if they hang in there long enough the system will work for them, and it doesn’t,” said Elaine Renoire, a director of the National Association to Stop Guardian Abuse in Loocootee, Ind., a victims’ rights group. The No. 1 complaint she hears: guardians who try to isolate older adults from their loved ones.

In her 2014 book, The Con Game: A Failure of Trust, business professor T.S. Laham of Diablo Valley College in the San Francisco Bay Area wrote that America’s guardianship system is “an open invitation to potential abuse.” (Next Avenue wrote about the book last year.)  (Continue Reading)

Full Article & Source:
Guardianship in the U.S.: Protection or Exploitation?