Unguarded: Finding Solutions to Pennsylvania's Troubled System of Naming Guardians

In the final installment of the Reading Eagle's three-day series, advocates offer remedies to a thorny problem.

WRITTEN BY NICOLE C. BRAMBILA

After a report that Eliza Dukes' 96-year-old aunt was giving money away resulted in a legal proceeding to determine competency, Dukes thought the court would appoint a family member.

She thought wrong.

Instead - on the recommendation of the Philadelphia Corporation for Aging - the court appointed a professional guardian.

"We're her family, and the whole system excluded us," Dukes said. "We were treated as outsiders."

The way Dukes sees it, there's something wrong with a system that strips individuals of all their rights with little to no consideration of less restrictive alternatives.

She's not alone. When Adult Protective Services intervenes, agencies overwhelmingly prefer professional guardians over family, a Reading Eagle review of court dockets in three counties - Berks, Chester and Philadelphia - has found.

The loss of civil liberties in guardianship has always raised abuse concerns. But it's also become an area of increasing worry with an aging population.

Over the past two decades filings statewide have risen 28 percent, faster than the increase of people 60 and older, the demographic most likely to be in a guardianship. The system in Pennsylvania already shows signs of strain, with Philadelphia Orphans Court willing to keep a felon convicted of financial fraud serving as guardian to dozens of incapacitated adults because of a shortage of professionals able to assume her caseload.

Despite congressional hearings and research on the system of court-appointed guardians, media exposés on abuses and celebrity attention, real reform has proved elusive.

So can anything be done?

Advocates for reform not only say yes, but that finding solutions is critical because of the explosive growth in a cottage industry of paid professionals that has supplanted roles traditionally held by family members.

"You can lose your civil rights," said Sam Brooks, senior attorney for Community Legal Services of Philadelphia, one of the leading advocates for the elderly in the state. "There needs to be some sort of system that ensures less invasive steps are taken."

Brooks added, "There needs to be a cultural change."'

'The safety net'
As messy and complex as the guardianship process can be, there is widespread agreement among advocates about what needs to be done.

While state statute indicates a preference for less restrictive alternatives and limited guardianship when appropriate, judges routinely strip elders of their civil rights and appoint guardians with power over the person and the purse. A first and necessary step in reform, advocates say, is a system that puts into practice what statute already suggests.

It's called supported-decision making, the process of accommodating individuals with disabilities or cognitive deficits (the most common justification for guardianship) by including family, friends and other social support to enable life decisions without impeding the adult's autonomy.

For this to happen, guardianship must be viewed as a last resort. The fact that the adult, alleged to be incapacitated, is absent or not represented by counsel in so many of these proceedings means alternatives are not being explored, said Lawrence A. Frolik, a University of Pittsburgh School of Law professor and national expert on elder legal issues.

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Unguarded: Finding Solutions to Pennsylvania's Troubled System of Naming Guardians

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Unguarded: Montgomery County Couple's Trust Betrayed

The man's court-appointed guardian is a convicted felon in Virginia, and the couple believes she has swindled them out of tens of thousands.

WRITTEN BY NICOLE C. BRAMBILA

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After Marie Frisby's husband fell prey to an all-too-common financial scam directed at the elderly, Montgomery County's Orphans Court appointed a professional guardian to protect his estate.

The couple, who had separated over mounting debt and increasingly aggressive creditors, reconciled and Marie Frisby moved back into their colonial-style home on a quiet, tree-lined street in Wyncote. With a guardian in place handling the estate, the financial woes that had plagued Marie and Hank Frisby for more than two years finally seemed behind them.

And then a county deputy sheriff knocked on their door.

The Police and Fire Credit Union, the deputy said with an apology, was foreclosing on their property."I was like, 'This can't be true,' " said Marie Frisby, 70.

Then she added, speaking of her husband's court-appointed guardian, "Gloria Byars told me everything was being taken care of."

In 2016, Byars was named the guardian for Hank Frisby, 79, during the time the couple had separated and filed for divorce.

When the court rules an adult incapacitated and appoints a guardian, the individual loses the right to make health care decisions, to determine where he lives or how his money is spent. Guardians make those decisions.

If the Frisbys were astonished to learn the court-appointed guardian had not been paying the mortgage and other bills, their surprise would pale in comparison to the revelations yet to come.

Unbeknownst to them, Byars had been convicted multiple times of financial theft.Her most recent arrest came in 2005. She pleaded guilty to felony fraud and was sentenced to 37 months in a federal prison after cashing $20,000 in blank checks found rummaging through trash cans at a Virginia post office.

Federal dockets show Byars was paroled on supervised release in 2008, the same year - according to her LinkedIn account - she began working in Philadelphia with RES Consulting, which provides guardian services.

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Unguarded - Montgomery County Couple's Trust Betrayed

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Unguarded: Professionals Normally Appointed, Incapacitation Nearly Always Granted

Judges rarely name family members to assume guardianship of the elderly, and nearly never deny a request to declare them incapable.

Advocates have raised concerns about the inability to monitor the system that protects the nation's vulnerable and elderly, and those concerns are illustrated in the way Berks County Orphans Court tracks annual filings: by hand, in a desk ledger.

The county's hand tally is expected to be replaced with an electronic statewide case management system by year's end that will allow Pennsylvania - for the first time - to track a variety of issues, including elder abuse.

Currently, no one can say how many adults are under guardianship in Pennsylvania or how widespread elder abuse by a guardian is.

No one tracks guardian caseloads, which, if too large, can hamper the quality of care. And, as yet, there are no statutory standards for who can become a guardian nor any mechanisms to flag the unscrupulous.

Guardianship is the process of determining whether an adult - usually 60 and older - is capable of informed decision-making. If they're not, a guardian with broad authority over the individual is appointed.

Because an incapacitated adult loses those rights, which are then given to a family member or professional, guardianship raises a host of civil liberty concerns. But the lack of reliable data, despite decades of hand-wringing, and a growing list of bad actors threatens to significantly undermine the public's confidence in the guardian system.

It's an issue policymakers will need to soon confront, as the number of older adults in the U.S. is projected to nearly double over the next three decades.

Given the magnitude of potential harm by a system with little to no monitoring, the Reading Eagle sought to examine court practices, industry trends and areas in need of public scrutiny. Fifteen months ago the newspaper began examining annual caseload reports and court dockets in three counties: Berks, Chester and Philadelphia.

Information available in the dockets varies by county.

Accessing the dockets in Berks and Chester required multiple trips to the counties' orphans court to look up individual cases that were entered by hand into a database for analysis. The newspaper looked at records for 2016.

Among the newspaper's findings:
Statewide, court filings have risen at a quicker pace over the past two decades than the demographic most likely to be involved in an incapacitation case: those 60 and older, which grew more moderately.
Although Philadelphia, Montgomery and Allegheny counties had more cases in 2016, Berks had a higher rate per capita: 4.18 per 10,000 population. Philadelphia had a rate of 3.86 and Allegheny 2.55.
*Adult Protective Services, a hospital or nursing home filed two out of every three petitions in 2016 alleging incapacitation in Berks, Chester and Philadelphia.
*Philadelphia's professional guardians carry significantly heavier caseloads than the nationally recommended ratio of 1:20. From 2014 through 2016, the top 10 professional guardians in Philadelphia were appointed, on average, to 52 cases.
*Among the reviewed cases from Berks and Chester resolved in 2016, the courts declared every adult before them incompetent. Not a single petition was denied, a finding that troubled advocates.
*Of the 325 Philadelphia cases in which the judge made a finding on incapacitation in 2016, only two were denied. Everyone else was deemed incapacitated and a guardian was appointed.
*Adult Protective Services favors the appointment of professionals. In 2016, for example, Berks Area *Agency on Aging recommended a professional guardian in 92 percent of their petitions, although the dockets in half of these identified family members living in the state.
*Despite the widespread belief that family members more frequently serve as guardian, professionals were more prevalent. For example, in Philadelphia in 2016, 73 percent of the appointments were held by at least one professional guardian.

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Unguarded: Professionals Normally Appointed; Incapacitation Nearly Always Granted
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Coming Sunday: An investigation into guardians of the vulnerable

Ludalla Gibson

In a three-day series, the Reading Eagle illustrates how courts are failing those who can't look out for themselves.

Written by Reading Eagle 

 

Beginning Sunday, the Reading Eagle launches a three-day series looking at the deficiencies in the system of appointing guardians to oversee those who are incapacitated.

The special report, "Unguarded: How the courts fail the vulnerable," reveals the findings of a Reading Eagle investigation that began 15 months ago.

Guardianship is the legal process of determining whether an adult has the capacity to make sound decisions and appointing a substitute called a guardian when they cannot. Judges can appoint a guardian to make decisions about the incapacitated individual, such as where they will live or the health care they'll receive, or to the estate, deciding how a ward's money will be spent.

Because of the loss of civil liberties, guardianship has always raised abuse concerns. And it's an area of growing concern with an aging population.

No good, reliable data exists on elder abuse, guardian caseloads or the number of adults in guardianship. Pennsylvania does not yet have a statewide data management system.

Because those 60 an older are most likely to be in a guardianship, and this demographic is expected to double in the next three decades, there is a growing concern over identifying and addressing guardian abuses.

Despite the widespread belief that judges more frequently appoint family members to serve as guardians, professionals are more likely to be tapped to take responsibility for those who are incapacitated, according to a Reading Eagle analysis of court dockets.

For example, 73 percent of the appointments in Philadelphia County in 2016 were held by at least one professional guardian.

While we hope you read each installment of the three-day series, we want to hear your stories, too.
If you or a loved one has had an experience with the guardian system in Pennsylvania, send your story and contact information to wardstories@readingeagle.com.

And, join Reading Eagle Investigative Reporter Nicole Brambila and Photographer Susan Angstadt for a live Facebook discussion about the project on Monday at noon.

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Coming Sunday: An investigation into guardians of the vulnerable