ABA, State Bars Urging Attorneys to Pivot From Guardianships

by Sam Skolnik

Several states are weighing an ABA-led push to encourage attorneys handling intellectually disabled and elderly clients to consider alternatives to legal guardianships.

The American Bar Association House of Delegates earlier this year revised its model rule of professional conduct dealing with how attorneys represent clients with limited decision-making skills, following years of behind-the-scenes work from advocates concerned that the legal profession has defaulted to guardianship—also known as conservatorship—as a first option.

Reformers say the changes to Rule 1.14—which outline guidance for lawyers representing clients with what the ABA used to call “diminished” mental capacity—may be vital to fixing the guardianship system. A 2023 Bloomberg Law investigative series surfaced several instances of abusive guardianships and a system buckling due to overworked attorneys and lax oversight.

Anthony Palmieri, a former president of the National Guardianship Association, said lawyers serve as a “pipeline” for an adult guardianship system that often allows bad actors to victimize highly vulnerable clients.

“It’s more aspirational than operational,” said Palmieri, deputy inspector general of the Palm Beach County, Fla., Clerk of the Circuit Court & Comptroller, of the ABA’s model rule revision. However, given the likelihood that states will adopt their own versions of the revised professional conduct rule, making the changes legally binding, it’s “potentially a huge step forward,” he said.

The initiative has built momentum among state bar associates since the ABA’s model rule changes in February. Michigan is already moving to incorporate the language into its ethics code and bar officials in Illinois, Virginia, Florida, Washington, Utah, and Washington D.C. are exploring making changes.

But there are some skeptics who doubt the likelihood that ethics rule changes could have a major practical impact.

“While I appreciate what the ABA is doing, there is no back-stop available when a predatory lawyer targets your family,” said Rick Black, executive director of the Center for Estate Administration Reform, a nonprofit pushing for more transparency in guardianship cases.

Given that the guardianship system is an entrenched process that’s “increasingly profitable” for lawyers, legal-advisory reforms may only have the effect of “putting a Band-Aid on a gunshot wound to the head,” he said.

Michigan Moves First

The State Bar of Michigan’s representative assembly unanimously supported adopting the ABA’s new language for Rule 1.14, which confirmed that clients who have surrogate decision-makers aiding them because of difficulties making or communicating decisions also have due process right of access to counsel. It is on track to be the second state to update its 1.14 guidance.

The key is providing lawyers with the guidance they need so they’re not encouraged to pursue guardianship, a “very drastic” approach to protective action in such cases, said Syracuse University College of Law professor Nina Kohn.

The proposed rule—which needs to be approved by the Supreme Court of Michigan—also stipulates that the state’s attorneys “must look to the client, and not to family members or other persons” to make decisions on the client’s behalf. Alternatives to guardianship can include healthcare surrogacy, durable powers of attorney, living wills, and community support.

Reform advocates in Michigan had been watching the ABA “very, very closely,” so that they could move as quickly as possible to adopt their own rule change as soon as the ABA acted, said Nicole Shannon of the Michigan Elder Justice Initiative.

Katie Stanley, a lawyer with Legal Services of Eastern Michigan who introduced the resolution, said she believes the rule change will spur a “strong, human impact by providing more clarity and dignity” to respondents in guardianship cases.

The District of Columbia Bar’s rules review committee recently referred the matter to a subcommittee for study and drafting, said Hope C. Todd, who oversees the legal ethics program at the D.C. Bar. It’s “likely” that the Supreme Court of Illinois, through several of its committees, is reviewing the ABA model rule revisions “for possible adoption,” said Charles J. Northrup, the Illinois State Bar Association’s general counsel, and the Virginia State Bar is accepting comments on the topic.

The Florida Bar also will be forwarding the revised model rule 1.14 to its relevant committees for consideration, and the issue is on the radar of the Washington and Utah bars, spokespeople in those states said.

Maryland’s Example

The ABA model rule was inspired by ethics changes Maryland put on the books in 2023, which guardianship law practitioners in the state say have helped their clients.

The rule lets the state’s lawyers know that guardianship “shouldn’t be their first pivot,” said Megan Rusciano, a managing attorney with Disability Rights Maryland.

It’s also helped inform the state’s bench and bar, by showing them “in the black and white letter of the law what my job is,” said Barrett King of King Hall LLC.

King estimates that guardianship cases make up about 75% of his workload, and a key part of his representation is to advocate for less restrictive alternatives to guardianship so it’s maintained as a “last resort.”

King noted the important role played by a 2000 state court decision which made it clear that the attorney’s role in representing such clients is to “explain the proceedings to his client and advise him of his rights, keep his confidences, advocate his position, and protect his interests,” especially when the client “faces significant and usually permanent loss of his basic rights and liberties.”

“Fundamentally, there’s just so much at stake,” said Rusciano.

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ABA, State Bars Urging Attorneys to Pivot From Guardianships 

Forced Treatment Hasn’t Flooded Hospital Emergency Rooms – Yet

County supervisors postponed implementation of a conservatorship state law in response to fears that hospitals could be inundated with new patients.   

by Lisa Halverstadt 

County supervisors postponed implementing a state conservatorship expansion law after hospitals warned it could overwhelm San Diego emergency rooms. 

Yet there hasn’t been a dramatic influx of patients in the months since the county implemented the state law in January, just over a year after supervisors considered whether to immediately implement it or hold off. 

SB 43 aimed to make it easier to force people with severe substance use disorders into treatment. It also allowed holds or conservatorships in instances where someone failed to access needed medical care. The 2023 law gave counties the option to postpone implementation until 2026. San Diego County decided to move forward this January to allow more time to institute training and new services to meet an expected spike in demand for them. The decision drew praise from advocates concerned about patients’ civil liberties and criticism from others including San Diego Mayor Todd Gloria, who argued the region needed another tool to aid people languishing on the streets. 

But a recent county report showed a small drop in involuntary 72-hour holds that many expected to spike after SB 43 took effect in the first three months of 2025 compared with the prior three quarters in 2024. Temporary and longer-term term conservatorships also appeared to be trending down after January, though the county noted its March numbers were incomplete. 

Source: County of San Diego

“The fear we had that there was going to be this huge increase just really hasn’t materialized,” said Steve Koh, chief of clinical psychiatry at UC San Diego Health. 

The county reports that contracted crisis stabilization units it had prepared to take in more patients who might otherwise flood local hospitals also haven’t seen a surge in demand despite the county’s efforts to redirect patients there. 

The county’s now-former behavioral health director had predicted at least a 10 percent spike in short-term holds tied to the new law in its first year based on feedback from police and others. Some activists and behavioral health providers – like hospitals – expected and in some cases, even hoped for, a more dramatic increase.  

County officials are hesitant to pinpoint the reasons for the mismatch between the predictions and reality, noting that it’s been just seven months since the county implemented the expansion. 

“While the county has recently observed decreases in holds and fluctuations in permanent conservatorships, it is still early to clearly understand the impacts of the SB 43 legislation,” county spokesperson Tim McClain wrote in an email. “The county continues to monitor these trends closely.” 

In the county memo, the leader of the county’s Health and Human Services Agency wrote that involuntary holds could “increase over time as providers become more familiar with the revised criteria and adapt operational and clinical practices accordingly.” 

Deputy Chief Administrative Officer Kim Giardina also wrote that upcoming state updates on insurance reimbursements could also “increase demand for local inpatient (substance use disorder) treatment.” 

The Hospital Association of San Diego & Imperial Counties, the lobbying group for San Diego’s hospitals that urged supervisors to postpone SB 43 implementation, declined to comment for this story. 

Other San Diegans on multiple sides of the issue have similar theories on why SB 43 hasn’t swiftly increased involuntary holds or conservatorships. 

Though the county has inked new contracts to supply more post-hospital options and treatment beds, there’s broad agreement that there still aren’t enough resources – and that police and hospital staff who make the call on holds and conservatorships are still getting up to speed on the new law. 

Koh and others said some clinicians and police officers have been unclear on whether patients meet the new criteria, leaving some to stick with longstanding protocols rather than use new ones under SB 43. 

“I think it’s a complicated thing,” Koh said. “I know there are some folks who don’t want to use it because they don’t think it will lead to anything.” 

Post-hospital placements for patients on temporary holds and longer-term conservatorships remain hard to come by, Koh said, and clinicians can be reluctant to take away patients’ rights to choose their own treatment path without a clear end game.  

San Diego National Alliance on Mental Illness CEO Cathryn Nacario agreed. 

“We still have some infrastructure that needs to be brought online to really support and place people in appropriate facilities and programs,” Nacario said. 

Michelle Routhieaux, who leads San Diego’s Depression and Bipolar Support Alliance and regularly assists people in crisis, was concerned about how SB 43 could be misused before it took effect in San Diego County. 

She’s also not surprised by how it’s played out initially.  

After all, Routhieaux said, even patients who want hospital care have long struggled to get it in San Diego County. 

“Either there’s no space for them or the hospital says, ‘You don’t meet criteria,’” she said. 

Linda Mimms, a longtime mental health advocate who rallied behind SB 43, is frustrated and also unsurprised. She thinks more education is needed on the law and that local government agencies, including the county, need to heed it – and supply the services necessary to support people who could be connected to treatment under the expanded law. 

“They just don’t want to bring people in because they don’t have the resources to help them,” Mimms said. 

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Forced Treatment Hasn’t Flooded Hospital Emergency Rooms – Yet

San Diego’s CARE Court Is Serving Those Formerly in Conservatorships

CARE Court supporters pitched it as a solution for people with serious untreated psychotic disorders. San Diego’s program is also serving people exiting involuntary treatment.

 

by Lisa Halverstadt

Judge Kimberlee Lagotta, who led San Diego Superior Court's CARE Court implementation, and county Behavioral Health Services Director Luke Bergmann during the CARE Act program press conference at the County Administration building in downtown on Sept. 27, 2023. / Photo by Ariana Drehsler

San Diego County’s rollout of CARE Court hasn’t been what many expected – not even the author of the legislation that created the program. 

Proponents touted CARE Court as a way to get thousands of people with untreated psychotic disorders into treatment through court-ordered plans. San Diego County officials, however, have held back from forcing people into treatment and instead made the program voluntary. Not only that, but officials have also tapped into another group for CARE Court participation: people already in the strictest level of forced treatment. 

Twenty-one percent of the 105 voluntary care agreements reached since the county’s program kicked off October 2023 were with people leaving conservatorships, according to county data.  

Conservatorships are considered a step up from CARE Court because they institute involuntary treatment and take away individuals’ decision-making power on their living arrangements and other matters. 

The county and state officials said the law allows for CARE Court to serve as a step-down option.  

They say it’s a tool to help people exiting conservatorships transition from forced care with the benefit of more support and oversight that can help them maintain stability. 

But others, including the author of CARE Court legislation, said they didn’t expect the new court system to be used this way.  

“That wasn’t part of the plan,” said state Sen. Tom Umberg of Santa Ana. 

County officials decided CARE Court was a useful tool to help people already in conservatorships avoid another round of involuntary treatment and that this matched the legislation’s overarching goal to minimize conservatorships. 

Amber Irvine, program manager of San Diego’s CARE Court program, said CARE Court can help people at a high risk of decompensating avoid returning to a conservatorship. 

“(Some patients) need to have this safety net of intensive treatments to step down to and having that court oversight piece to hold providers accountable for delivering those services,” Irvine said. 

Ann Carroll, a spokesperson for the state Department of Health Care Services, also described the conservatorship step-downs into CARE Court as an “appropriate application of the law” that prioritizes connecting patients with services in the least restrictive settings. 

Carroll and county officials separately noted a 2024 law authored by Umberg that they said clarified this. SB 42 allowed health care facilities to refer patients held on involuntary evaluation holds to CARE Court if they believe the person qualifies for this program rather than a conservatorship.  

Yet Umberg said he didn’t imagine counties would use CARE Court to aid conservatees preparing to exit those court-ordered arrangements. 

Umberg’s office also noted the California Department of Health and Human Services pushed for the legislative changes Carroll mentioned, though he agreed to them. An Umberg spokesperson said the senator may consider amending state law if he determines that most CARE enrollees are recent conservatees.  

For now, that doesn’t appear to be the case. Only a fraction of CARE enrollees in San Diego County are former conservatees. 

Still, the practice is catching stakeholders off guard. 

Attorney Samuel Jain of Disability Rights California, whose organization was one of the most prominent opponents of the CARE Act legislation, acknowledged he supported efforts to reintegrate San Diegans who had been conserved into their communities but didn’t expect that counties would do that with CARE Court. 

“It sounds like fitting a square peg into a round hole,” Jain said. “CARE Court wasn’t actually designed for this.” 

Officials with the San Diego Police Department, which has filed CARE petitions, fear the county’s approach could limit treatment access for others. 

“The CARE Act was not meant to just reduce conservatorships, it was meant to offer a lifeline for care to patients falling through the cracks in California’s mental health system,” read a statement sent by the department. 

Irvine said the county’s decision isn’t keeping anyone from accessing treatment in the program. 

“We do not have bandwidth issues,” Irvine said. 

Irvine argued that the county’s approach will minimize potential workload issues in the future because reaching care agreements with people stepping down from conservatorships can ensure they don’t experience gaps in treatment that could later require county outreach and support.  

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San Diego’s CARE Court Is Serving Those Formerly in Conservatorships

Three Years After Britney, Wendy Williams Shows Celebrity Conservatorships May Still Be Toxic to Women

Amanda Bynes, Britney Spears, Wendy Williams and Nichelle Nichols. (Chris Smith/TheWrap)

Such court-ordered financial oversight arrangements “adversely and disproportionately impact women,” a lawyer told TheWrap 

by  Andi Ortiz

In 2022, Wells Fargo successfully petitioned a judge to put talk show host Wendy Williams under what was said to be a temporary financial guardianship. The judge froze her accounts and set a hearing to determine if a guardianship was needed, all while the talk show host disputed the decision and accused a Wells Fargo financial advisor of lying to get access to her accounts.

The guardianship became the subject of a documentary on Lifetime this year, and has drawn criticism from her family, who say they have struggled to get access to her for even a phone call as she languishes in a private facility to treat her cognitive issues. They, along with fans, are worried, especially in the wake of her aphasia diagnosis.

It’s not an unfamiliar story. Celebrity conservatorships have entered the mainstream over the last several years, largely in relation to a few famous women. The issue hit a boiling point with Britney Spears, whose 13-year involuntary conservatorship ended in 2021 following a movement fans dubbed #FreeBritney, culminating in multiple documentaries and emotional testimony from the pop star about her life under conservatorship.

Now, fans everywhere are locked on Williams, 59, hoping things don’t go south yet again.

Experts TheWrap consulted — including lawyers and professional therapists experienced in the area — said that while roughly the same number of women and men are put under conservatorships, female celebrities are often subject to adverse conditions. Men like Charlie Sheen have public meltdowns and are able to maintain control over their lives, while women like Spears are deemed unable to take care of themselves — or their wealth.

Conservatorships of celebrity women have become “almost a perverse financial incentive” for members of their families in some cases, Benazeer “Benny” Roshan, a partner at law firm Greenberg Glusker and chair of the Trust and Probate Litigation Practice Group, told TheWrap.

“They adversely and disproportionately impact women,” she said. “Look at the women that are under conservatorship that have regained their cognition and are still conserved. And then you see male examples.

“Did you ever wonder, why wasn’t Charlie Sheen conserved when he was dealing with bowls of coke, and hookers and whatnot? Why wasn’t Kanye West conserved?” Roshan continued. “It’s because, I think on some level, they’re men, and somebody’s like ‘We need to conserve you’ and he’s like, ‘No! I’m fine!’ … The inquiry stops there.”

Wendy Williams attends the world premiere of the Apple TV+ series “The Morning Show.” (Photo by Astrid Stawiarz/Getty Images)

​Indeed, Sheen ​suffered almost no career consequences for his public  meltdown in 2011, though he lost his sitcom, for which he was paid $1.8 million an episode in his last season. (He later received $25 million in a settlement with Warner Bros. Television and Chuck Lorre over his firing.) Quotes from the interviews that got him fired from “Two and a Half Men” became catch phrases (“Tiger Blood,” “Winning!”). In 2010, he pled guilty to misdemeanor assault and was removed from a hotel after causing $7,000 in damage during a bender.

At the 2011 Television Critics Association press tour, just prior to Sheen’s many drug-addled interviews, CBS’ then-entertainment chief Nina Tassler noted about the actor: “On a professional level, he does his job and he does it well and the show’s a hit, and that’s all I have to say.”

Within a month of losing “Two and a Half Men,” Sheen launched a sold-out comedy tour. That September he was the star of a Comedy Central roast​. And by 2012 he ​had a new sitcom, “Anger Management,” and new movie roles.

Spears, meanwhile, went from publicly shaving her head in February 2007 to an involuntary conservatorship in February 2008. She later testified that she was forced to continue working during that time, saying, “It was very threatening and scary,” and that she only went ahead with another tour “out of fear.”

Charlie Sheen in “Two and a Half Men” (CBS)

The singer also revealed she was forced to have an implanted IUD, preventing her from having more children. That imposed birth control appears to be a struggle unique to women under conservatorship as well. Tom Stenson, the deputy legal director of Disability Rights Oregon, told The Nation in 2021 that he’d never seen a case involving a man’s family seeking to sterilize a man.

“I’m sure somewhere out there, there’s somebody trying to get their son or brother with a disability sterilized,” he said at the time. “But I’ve had a number of these cases arise, and they are, in my experience and so far, all women.”

Differing perceptions of mental health

A conservatorship is put in place when it’s determined that someone cannot make necessary, safe decisions about their well being — physical, financial, or otherwise. Once that is proven to a judge, that person’s rights and decision-making are transferred to someone else, usually a family member or friend.

Those decisions are often subjective, as “every person operating within the larger guardianship system possesses some level of implicit bias,” according to the Justice in Aging organization.

Spears was 26 when she first was conserved. Former Nickelodeon star Amanda Bynes was 27. Lindsay Lohan’s father attempted, but failed, to get his daughter into a conservatorship at 26. Each of these came at a time when the young women were having public mental health crises.

In stark contrast, conservatorships of celebrity men have been largely due to cognitive decline from old age: Mickey Rooney (90), Casey Kasem (81), Randy Meisner (69) and, most recently, Brian Wilson (81). 

[Conservatorships] adversely and disproportionately impact women. Look at the women that are under conservatorship that have regained their cognition and are still conserved.

Benazeer “Benny” Roshan, lawyer

That’s nothing new to mental health professionals. Patrice Le Goy, a psychologist and adjunct professor at the Chicago School of Professional Psychology, told TheWrap that mental health struggles often get “more connected to the ‘fragility’ of women, and with men it is sometimes chalked up to them simply going through a difficult period.”

Both singer Joni Mitchell and actress Nichelle Nichols were placed under a conservatorship due to neurological problems in 2015 and 2018, respectively. Mitchell suffered an aneurysm that hospitalized her, and Nichols was diagnosed with dementia. (That said, Nichols’ situation also drew protestors prior to her death, many of whom worked in the Free Britney movement).

For her part, Wendy Williams was diagnosed with the same aphasia condition as Bruce Willis — which impacts language and communication abilities, as well as behavior and cognitive functions — but Willis remains independent. (Roshan suspects that’s because the “Sixth Sense” actor had done proper estate planning, making a conservatorship unnecessary.)

It’s unclear exactly what kind of conservatorship Williams is under, but she has a court-appointed guardian in Sabrina Morrissey. Even her family does not have many details. According to Williams’ niece who spoke to People magazine, under the rules of the conservatorship, Williams is allowed to call her family, but they cannot call her.

In his 30 years of practicing conservatorship law, David A. Esquibias, who served as Bynes’ lawyer when she ended her conservatorship in 2022, said he’s never noticed a “demonstrable” gender bias. He noted that a conservatorship only comes when “there is a perception” that someone specifically needs outside help, but an exact agreement cannot be reached privately.

“I would assume that you would never go through a conservatorship if you’re able to take care of matters,” he said.

Of course, perception of women’s mental health tends to differ from the perception of men’s. The National Institute of Mental Health notes that some mental disorders are “diagnosed at comparable rates for men and women or at higher rates for men,” but that “men are less likely to have received mental health treatment than women in the past year.”

“In general, it seems that the mental health of women is more up for public debate than that of men,” Le Goy said. “When women have mental health issues, it also seems to live in the public domain for longer than it does for men.”

The money

According to Esquibias, “family dynamic is everything” and will dictate how smoothly the process of conserving someone will go. But mental health experts note conservatorships change and twist family dynamics in particularly detrimental ways for young conservatees. When that conservatee is a celebrity worth millions of dollars, it gets tricky fast.

“When the breadwinner is the child, there is already a dynamic shift that they may have power over their parents,” Le Goy said. “In a way, a conservatorship can almost adjust this power, but not always in a healthy way.”

In her 2020 memoir, Mariah Carey revealed that she was nearly put into a conservatorship as a young adult by her own family, writing that “to my family, I’d been an ‘ATM machine with a wig on.’”

In the case of Britney Spears, it was revealed in 2022 that her father and lawyers took more than $36 million from her estate throughout the course of her conservatorship. 

“It really can be an unnatural and unhealthy family dynamic if not approached with the ultimate care, and with the individual’s mental health as the key priority,” Le Goy added.

Britney Spears (Getty Images)

Wendy Williams was making $10 million annually for her talk show, and in 2015 she got a seven-year contract extension. But in the trailer for her documentary, she declared, “I have no money.”

Having money — or not having it — can certainly impact how a conservatorship goes, particularly for people of color, experts said.

“Wealth and skin color are positively correlated to how one fares when going through the conveyor belt of conservatorship and guardianships,” Roshan said.

Developmental impact

Experts say there’s an additional detriment to putting someone under a conservatorship at a young age, as most female celebrities are: stalling the “natural development” processes.

“Part of our development and growth is the need to take on challenges and fail or succeed, but learn from the experience either way,” Le Goy explained. “When we don’t have the opportunity to make our own mistakes, a crucial part of the development process is missed and this can leave us ‘stuck’ at a younger emotional age than we should be.”

Conservatorships must be terminated by mutual agreement, and with a lot of proof. As Esquibias detailed, the person under conservatorship must demonstrate he or she is able to manage their finances, make their own medical decisions and resist fraud or “the undue influence of others.”

And the burden of proof can have its own effects on a person’s mental health, especially when they’ve been made to doubt their decision-making abilities.

Amanda Bynes attends an appearance at Manhattan Criminal Court in 2013, the year her mother was granted a conservatorship over her. (Getty Images)

“It’s very important to mental and social development to integrate into society with self-trust and the ability to think for yourself,” Asha Tarry, a psychotherapist and CEO of Behavioral Health Consulting Services, told TheWrap. “But, when that’s removed from you, there are all sorts of ramifications … that may make one vulnerable to exploitation.”

These days, Bynes mostly stays out of the public eye, save for a TikTok account, and is headed back to school. In July 2023, she checked herself into a new inpatient mental facility, just a month after she called police on her own behalf, reporting she felt she was a danger to herself.

For Spears, the end of her conservatorship didn’t mean the end of her struggles. She had a very public divorce, an equally public falling out with her younger sister when Jamie Lynn Spears released a book called “Things I Should’ve Said,” and, even still, has had her well being speculated about. She was sent a welfare check at the end of last year after a social media post showed her dancing with kitchen knives (something she did not appreciate).

Still, Spears’ situation and the Free Britney movement helped change things in the system. It led to legislative measures that tightened rules and regulations surrounding conservatorships. Law practitioners have come to refer to them colloquially as “The Britney Spears Rules.” 

TheWrap reached out Spears’ lawyer for comment on this story.

Roshan concedes there is “a double-edged sword” element that comes into play with conservatorships, particularly in celebrity circumstances. Her advice for those who might be facing one: “Get educated, as knowledge is power.”

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Three Years After Britney, Wendy Williams Shows Celebrity Conservatorships May Still Be Toxic to Women

Abuse within conservatorships

by Clara Lebrón

Conservatorships have become a hot topic in the tabloids fairly recently. From Britney Spears to the most recent scandal involving retired NFL star Michael Oher, it is evident that the concept of guardianship and conservatorships are not foreign in the minds of the general public.

At their base, conservatorships are permissions that allow an adult to take responsibility and control over either the personal needs or the financial assets of another adult who is considered unable to care for themselves.

Often, these agreements help hide the presence of the physical, psychological and financial abuse being committed towards conservatees, while also permitting conservators full control over their bodies and livelihoods.

However, when discussing celebrity conservatorships, there is often a missing structural analysis that is critical to justifying the need for stricter and more regulated processes for approving this kind of drastic legal decision.

The experiences suffered by these personalities are both unjust and cruel. However, highlighting these experiences with conservatorships over those of more marginalized and affected populations that routinely encounter the threat of being found incapable of deciding what is best for themselves.

I believe that there needs to be clear medical guidelines that not only ensure that conservatees truly need the constant oversight that conservatorships offer, but also that the conservator is mentally and emotionally sound enough to take care of someone responsibly.

Although fairly commonplace in the United States, conservatorships are especially a threat to both disability rights and the well–being of aging Americans.

In the last few years, the number of conservatorships around the country has been stagnant but huge, with an estimated 1.3 million people being committed to conservatorships around the country right now.

Of those cases, more than a million, 85% of them are over the age of 65. Even more worryingly, statistics seem to support the notion that institutional malpractice plays a role in how these elders and others committed to conservatorships are able to be abused behind closed doors.

In 2010, a federal report detailed hundreds of cases of alleged abuse being committed towards conservatees, with most of these being linked to family members who were acting as guardians.

However, there were several cases of abuse found that could be attributed to professional conservators and the companies they work for.

In many cases, families might appoint a professional conservator if they feel they might not be able or capable of taking care of their family member by themselves. As such, these individuals are not as knowledgeable on the wants and needs of their conservatees.

The lack of autonomy that surges from either one of these conservatorship options should create a sense of worry for anyone who is concerned with equity for those who might simply not be able to communicate themselves or reason as “normally” as a judge deems necessary.

As a great majority of conservatees are of older age, not only do ageist legislative practices such as restrictive conservatorships strip away their financial and bodily autonomy, in many cases the decisions made by conservators end up changing what were supposed to be peaceful and well-deserved moments of rest into whatever the conservator decides is most appropriate.

However, it is understandable that sometimes conservatorships are necessary in order to ensure that a person is as duly protected and advocated for when looking to receive treatments or invest money.

The practice of conservatorship can obviously not be abolished. In a world where those who might genuinely not have the intellectual capabilities necessary to absorb information and use it to make informed decisions, there do need to be protections established that accommodate for their needs.

Many disability rights advocates advise that a more receptive approach to conservatee input could help lower chances of abuse within these relationships. Instead of simply needing the consent of the conservator in certain decisions, there should need to be two authorizations: one from the guardian and one from their conservatee.

Additionally, there needs to be more coverage of conservatorships that align with the circumstances that most Americans living with them are actually subject to.

Although it is nice to see how media attention tips the scale in the favor of beloved public figures, it also negates the actual problem found within conservatorships: the ease with which they can be acquired and the difficulties found when trying to break these agreements.

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Abuse within conservatorships

Liza Horvath, Senior Advocate: An alternative to conservatorship

By Liza Horvath

Question: After the Britney Spears situation shined a light on the powers that a court appointed conservator has and how easy it would be to abuse someone by getting a conservatorship, I am lying awake at night worried sick that if I lose even a little capacity, someone could get a conservatorship over me and steal all my money and even control where I live. I have also seen the movie, “I Care a Lot” where a professional woman took advantage of elderly people by using conservatorships, stripping their assets and placing them in nursing homes! What can the average person do to protect themselves against this happening? Who can I trust?

Answer: The situations you share, the highly publicized Britney Spears case and that movie which, I am sorry to say, was based on true events, do present nightmarish situations. I understand your worry.

Before addressing your concerns, however, it should be noted that some court conservatorships are often desperately needed and are the right solution for certain situations. I had the situation where a client was losing capacity and continued to borrow money from friends and then demand that I pay them back from her trust funds. The lenders could have brought suit against her for the funds absent a conservatorship – which is what we eventually put into place. We of course paid back the loans and I admonished her friends not to lend her any more money. The conservatorship protects someone like this against future lawsuits for her actions.

Conservatorships can be cumbersome, however, and due to the court’s involvement, are public in nature. They are expensive, restrictive and invasive. Having a trust, power of attorney for finances and an Advance Health Care Directive in place can obviate the need for a court conservatorship. Good estate planning is your first line of defense.

On Jan. 1, California adopted Assembly Bill No. 1663 which makes reforms to probate and conservatorship law and offer a less-restrictive alternative by way of “Protective Proceedings.” According to an article written by Klaus Gottlieb, Esq., published in the Winter 2023 California Lawyers Association Trust & Estates Quarterly, “California joins an increasing number of states that have made less-restrictive alternatives to conservatorship a legislative priority. Supported Decision Making is one of them. The idea is that adults with a disability, which could include dementia, retain their autonomy and make their own decisions, albeit with support.”

Supported Decision Making can be an informal arrangement, such as your son helping you continue to make sound decisions or can be memorialized in a written SDM agreement. Like any legal arrangement, attorneys generally support having such an agreement fully documented.

With an SDM agreement, the signer of the agreement (you in this case), can continue to act independently. There appear to be some shortcomings in the legislation which need to be worked out like should the SDM be compensated; are third parties, such as doctors or banks, required to accept the decision maker’s decision; and the big one, is the decision maker held to a fiduciary standard? These legal amendments are new and educational programs for attorneys, individuals, courts and the public need to be developed. However, once solidly in place, a supported decision-making scenario would seemingly provide for a better alternative than the current court conservatorships.

Liza Horvath has over 30 years of experience in the estate planning and trust fields and is a licensed professional fiduciary. Liza currently serves as president of Monterey Trust Management. This is not intended to be legal or tax advice.

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Liza Horvath, Senior Advocate: An alternative to conservatorship

Jackson attorney may be king of conservatorships in Mississippi

by Jimmie E. Gates

Credit: The Associated Press

Consider Jackson attorney Harry Rosenthal as the king of conservatorships.

By his own estimate, he has been a conservator for more than 100 vulnerable individuals. Hinds County Chancery Court records show he’s continuing to handle a dozen conservatorships.

Though it’s not known how much the attorney receives in each case, in Hinds County alone, Rosenthal’s income from being a conservator could be substantial.

The average salary for a non-family member conservator is $51,214 per year in Mississippi, according to the research blog salary.com. ZipRecruiter, which says it gets its salary estimates from employer job postings and third party data sources, puts the average salary in Mississippi at $47,787.

State Supreme Court Justice Dawn Beam, who helped craft changes to the conservatorship law, said most appointed conservators are family members, and they aren’t paid a lot of money.

The law allows a family member to be paid fees set by a judge for their service.

Professional conservators are entitled to reasonable fees, but the judge decides what is reasonable and must approve the amount before the conservator can be paid. Money for the conservator comes from the account of the person under a conservatorship. If a person under a conservator has little or no financial assets, the judge can appoint a public guardian/conservator who is paid from public funds.

Some attorneys say the new law makes it difficult for ordinary citizens to file conservatorship petitions without the assistance of attorneys. 

Elder law experts say the cost of obtaining a conservatorship over someone can be expensive with the hiring of attorneys or attorneys to represent the individual, family members and interested parties. There are also court and other fees involved with a conservatorship petition.

Rosenthal told the Mississippi Center for Investigative Reporting, a part of Mississippi Today, that most of the wards for whom he has served as conservator were once clients in criminal cases. 

More than 30 years ago, the attorney provided $12,000 in bail money to try to help white supremacist Byron De La Beckwith get out of jail after he was indicted and arrested for the third time in the assassination of Mississippi NAACP leader Medgar Evers.

Although Jewish, a group of people Beckwith disparaged, Rosenthal, 82, has said he provided the money to Beckwith because he believed his speedy trial rights were being violated after two previous trials in 1964 ended in hung juries.

In 1994, 30 years after his previous trials, Beckwith was convicted in Hinds County Circuit Court of Evers’ murder and sentenced to life in prison. Beckwith died in 2001 in custody.

Thirty-four years ago, Rosenthal filed the petition to become conservator for Gary Gordineer in Hinds County Chancery Court.

“I’ve had him for more than 30 years and I still have him,” Rosenthal said recently. In February, Rosenthal filed an annual accounting report of Gordineer’s assets, a court docket report shows.

Rosenthal said he knew Gordineer, Gordineer’s father and other family members. He said the younger Gordineer had been a criminal client. Rosenthal said he once had Gordineer, who is a veteran, in a home with his mother but now has him in a nursing home.

No family member of Gordineer could be reached for comment.

Rosenthal is also listed as conservator in another case, dating to 1989 involving Howard Ruffin Jr.

Ruffin’s niece, Erica Porter, said she has been his caregiver for the 100% disabled veteran the last four years. Other than her, Ruffin has little or no family alive, she said. “I’m all he has.”

In her four years of caring for Ruffin, she said she had never heard from Rosenthal until recently when she went to his office to request more money than the $700 a month she receives for Ruffin’s care. 

Porter said Rosenthal denied her request.

“My first time talking to him was actually last week,” Porter said recently of Rosenthal. “We haven’t heard from him or nothing.” 

Rosenthal said everyone wants to spend a ward’s money.

“If you are a conservator or guardian, the money belongs to the person you are trying to protect, and the laws of the state of Mississippi say you are supposed to conserve and build upon the money, if possible,” he said.

Most of Rosenthal’s conservatorship cases in Hinds County occurred before an updated law went into effect three years ago.

About 2,500 conservatorship cases have been filed in Mississippi since then.

The updated law, known as the Mississippi Guard and Protect Act, seeks to protect the rights of those unable to take care of themselves, said Beam, who co-chaired the 26-member committee that came up with the recommendations. It was the first update of the guardian and conservatorship law in 30 years.

The law distinguishes guardianship of the person from conservator of the estate, clarifies the role of a guardian/conservator in a ward’s life, specifies the basis for appointing a guardian/conservator through improved medical evaluation forms, encourages individualized planning and use of the least restrictive alternative. It also creates accountability between the guardian/conservator and the courts to prevent fraud and abuse. 

The law also mandates wellbeing reports.

The updated law applies to cases filed after Jan. 1, 2020, but a judge has the authority to apply the new law to older cases if no rights are violated.

In a 2021 state Supreme Court appeal, Hattiesburg attorney Carol Bustin said that, for decades, courts have treated conservatorships as mere ministerial actions and the imposition of conservatorships as matters of petitioners’ rights. 

Unless someone is a party in a conservatorship case, court records in cases like those of Gordineer and Ruffin are sealed, except for the brief descriptions placed on the court docket. 

Rosenthal said some things in the new law look good on paper, but accountability isn’t being strictly enforced.

The sister of one of Rosenthal’s wards questions the lawyer’s accountability.

“I think the rule, or unofficial rule, should be to talk to family members before they put people into a court-appointed conservatorship to make sure there is no one who can take over the responsibility,” said Linda Taylor of Memphis, whose brother, Edward Redmond, was one of Rosenthal’s wards.

At one point, Rosenthal had Redmond living in a facility in south Mississippi, according to Taylor.

But Rosenthal was forced by court order to move Redmond to Jackson to be closer to family.

Taylor said her brother initially was able to spend time with family.

“In August 2019, however, Rosenthal forbade us to take him away from his assisted living residence to spend time with him. He even claimed he had a warrant out for my brother Robert’s arrest because he had violated that order and picked Edward up once, anyway.”

Redmond, a Marine veteran, was diagnosed as paranoid schizophrenic in the 1980s and became addicted to drugs. He was determined to be 100% disabled by the VA hospital. Redmond’s parents became guardians over his military and Social Security benefits.

In 1994, Redmond’s parents agreed to let Rosenthal become his guardian without fully understanding what they were consenting to, according to Taylor. She said she and another sister in Texas didn’t know anything about what was going on with their brother until after Rosenthal had already been court appointed guardian/conservator.

At one point, Redmond was allowed to live with Taylor and her husband in Memphis on a trial basis. During that time, Redmond overcame his addiction for a while. He had a great testimony about his victory over drugs. Rosenthal forced Redmond to move back to Jackson for unexplained reasons.

Taylor said her brother was moved over the years to different locations throughout the state of Mississippi, and that all of those places Rosenthal chose were not approved by the Department of Veterans Affairs.

Rosenthal said he won’t apologize for the care Redmond received in Jackson. Taylor wanted too much money for keeping Redmond, he said. “I’m not ashamed of what happened. I had a tremendous problem with her trying to get his money.”

Taylor said the family requested to have guardianship over Edward while allowing Rosenthal to continue being conservator over his money.

“Rosenthal refused,” she said. “The record speaks for itself.”

This project was produced by the Mississippi Center for Investigative Reporting, now part of Mississippi Today, in partnership with the Fund for Investigative Journalism.

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Jackson attorney may be king of conservatorships in Mississippi

ABC10's reporting on California's conservatorships honored with Investigative Reporters and Editors award

ABC10 Sacramento focused on abuses and neglect of disabled persons by the California state bureaucracy controlling their lives through conservatorships.

Author: Lauren Walike  

SACRAMENTO, Calif. — ABC10 is being recognized with a national investigative award by Investigative Reporters and Editors for investigative reporter Andie Judson's reporting on California's conservatorship system.

"The Price of Care: Taken by the State" is a two-year investigation digging into the legally complex legal tool giving civil rights and liberties of someone unable to care for themselves to another person or entity. In Season Two, Judson and the ABC10 Originals team investigated the state agency responsible for the rights and needs of all Californians with disabilities, including separating families by conserving people with disabilities and cutting all contact and communication with their loved ones.

"Our goal with the Price of Care is to seek the truth and uncover systemic and institutional failures in order to fix them," said Director of Special of Projects and Engagement, Gonzalo Magaña.

In a series of five reports, ABC10 Sacramento focused on abuses and neglect of disabled persons by the California state bureaucracy controlling their lives through conservatorships. Through the stories of victims, reporter Andie Judson detailed a system that ignored their interests and isolated them from their families. The reports were part of a two-year investigation by ABC10 widely credited with ensuing reform legislation.

"IRE is the leader in investigative Journalism, we are honored that our investigation is being recognized among the top investigations in the country," said Judson.

Not only is her award-winning reporting shining a light on the abuse some of the most vulnerable Californians are facing, but it's also leading to legislative changes.

Gov. Gavin Newsom signed a bill limiting conservatorships that grant legal guardianship over individuals after the story aired. The new law will give potential conservatees preference for selecting a conservator and make it easier to end probate conservatorship.

The Video Longform award honors and is shared with the ABC10 Originals team of journalists who worked tirelessly on this investigation: Director of Special Projects and Engagement Gonzalo Magaña, Photojournalists Rory Ward and Tyler Horst, Producers Sabrina Sanchez and Mike Bunnell, and Photographer Xavier Uriarte. Without their drive and passion, this reporting would not have been possible.

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ABC10's reporting on California's conservatorships honored with Investigative Reporters and Editors award

Conservatorships Keep the Homeless in Psychiatric Wards Too Long: Study

by Alan Mozes

WEDNESDAY, Jan. 19, 2022 (HealthDay News) -- Homelessness is difficult enough, but when it's compounded by serious mental health issues the result can be an inability to function at even the most basic level.

Sometimes that leads to round-the-clock involuntary hospitalization, and when that happens a state-appointed psychiatric conservator can take over, making critical health care decisions for a person deemed mentally unstable.

But new research conducted in California warns that once a conservatorship is set up, there's a very real risk that a homeless individual will end up stuck in a psychiatric hospital for weeks or months — far exceeding what's needed and much longer than inpatient care provided to patients who aren't homeless.

The bottom line, according to lead researcher Kristen Choi, is that "our mental health care systems are falling short in meeting the needs of individuals who are homeless at every level." She's assistant professor in the schools of nursing and public health at the University of California, Los Angeles (UCLA).

Taxpayers also pay a hefty price: Choi's team estimates that it costs $767 per day (nearly $280,000 per year) to care for a homeless person on a psychiatric ward in California, compared to less than $14,000 to provide them with year-round housing. Most of the patients in the study were uninsured.

Last-resort option

In their research, the UCLA team tracked the progress of nearly 800 Los Angeles residents, aged 18 to 56, who were involuntarily hospitalized within a non-profit "safety net" psychiatric facility sometime between 2016 and 2018.

A little more than half of the patients did have housing and never ended up being placed in a conservatorship. In these cases if they were hospitalized it was typically for less than two weeks, Choi's team found.

But nearly half of admittees to psychiatric care were homeless. Among that group, about one in every seven were placed under a mental health conservatorship, according to the report.

Once that step was taken, these patients often faced "very lengthy hospital stays," averaging about five months, although some went even longer, Choi said.

A mental health conservatorship is "a strict legal process," she added. In California, it's a kind of highly restricted last-resort option, intended for limited durations in order to protect mentally impaired patients for whom "all other treatment options have been exhausted," Choi explained.

"Mental health conservatorships are for individuals who are 'gravely disabled' by serious mental health illness, such as schizophrenia, bipolar disorder, or other mental health disorders," she said. If unable to feed, clothe or house themselves, such patients can be deemed in need of a guardian who can step in to make mental health treatment decisions.

(As such, this arrangement is not to be confused with the much-publicized case of Britney Spears, whose conservatorship was of the financial affairs/probate variety; the pop star never lost her ability to make her own health care decisions.)

Once patients become stable enough, mental health conservatorships are meant to end, with patients shifting from an involuntary psychiatric hospital setting to a voluntary, community-based care model instead.

But housing is crucial to that transition.

"It is difficult, if not impossible, to stabilize mental illness for individuals who do not have their basic needs met, including housing," Choi explained.

And even if psychiatric stability is achieved, all patients face "a very long waitlist for beds at lower levels of care, such as in psychiatric step-down facilities, psychiatric rehabilitation facilities, and group homes," she added.

That means that patients under conservatorship often "have no choice but to wait in the hospital" after stabilization, Choi noted, sometimes for weeks or months.

Too few options

That wait ends up being a particularly heavy burden for homeless patients, given that 14% of the study's homeless patients were placed in a conservatorship compared to just 3% of patients with housing.

Overall, even though homeless admittees to psychiatric care under conservatorships made up just 6% of all the patients in the study, they ended up accounting for more than 40% of the total time spent hospitalized over the study period, the researchers found.

None of this is good for anyone, said Choi. But she believes that "hospitals have few options" when it comes to handling such patients, because there's been so little progress in improving access to either housing or community-based mental health services.

"It is important to note that the vast majority of people experiencing homelessness do not have mental illness," Choi stressed. "Homelessness is ultimately a problem of lack of housing, not lack of mental health care, and we must be cautious to not conflate homelessness and mental illness."

But she believes that "conservatorships are not appropriate or humane for the majority of people with mental illness," homeless or otherwise.

Hoping to address the situation in Los Angeles, Choi said she and her colleagues are linking street-based homeless outreach teams — such as L.A.'s Homeless Outreach and Mobile Engagement (HOME) program — with inpatient psychiatric services at facilities such as Gateways Hospital and Mental Health Center.

Housing and health care

The problem isn't confined to California, of course. Alleviating mental illness among the homeless is an uphill battle everywhere, according to child and adolescent psychiatrist Dr. Nicole Kozloff.

"A lack of stable housing makes managing a serious mental illness a near-impossible task," said Kozloff, who is associate director of the Slaight Family Centre for Youth in Transition at the Campbell Family Mental Health Research Institute in Toronto.

In a perfect world, mental health treatment involves psychotherapy appointments, daily medication regimens, bloodwork, and medical check-ups, Kozloff said. But life on the streets is far from a perfect world.

"It is very difficult to maintain this routine if you have to prioritize your basic needs, don't have a private place to store your belongings, (and) can't afford transportation," Kozloff said. "Furthermore, the stress of being homeless can exacerbate existing mental health problems."

Kozloff agreed with Choi that solutions lie in improved access to permanent affordable housing, coupled with a wider availability of "mental health supports geared to a person's needs and choices."

Choi's team published their findings recently in the online issue of Psychiatric Services.

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Conservatorships Keep the Homeless in Psychiatric Wards Too Long: Study

How Conservatorships Can Prop Up or Tear Down a Loved One

Britney Spears' conservatorship is an extreme case, but abuse and neglect can happen to anyone in these legal arrangements. 

 

by Emma Kerr

 

The conservator is court appointed and may be responsible for financial decisions such as retirement planning, the purchase or sale of property and the movement of any other financial assets. (Getty Images)

A conservatorship can be a welcomed safety net or a tool of abuse and neglect. 

In the now-famous case of pop star Britney Spears, experts agree the conservatorship arrangement created around Spears is far from typical. But conservatorships and guardianships aren't just a reality of life in the spotlight. These arrangements are common among average citizens, are often a standard element included in the larger estate planning process and can lead to similarly contentious and painful situations for those subjected to them.

"Once you have a conservator in place, the burden is on you to prove you no longer need a conservatorship," says Russel Morgan, estate planning attorney and principal of Morgan Legal Group P.C. in New York. "I've seen all sides of it. The biggest issue in most cases is abuse of power or neglect. Either (the conservator) is doing something self-serving like spending money on something they shouldn't be or spending on themselves, or the alternative, where they're doing absolutely nothing – not helping the conservatee or providing the care they need."

Conservatorships and guardianships can be entered into when an individual is 18 years old or as an individual ages and loved ones find that other estate planning documents have fallen short. The laws guiding these arrangements can vary significantly across states. A conservatorship or guardianship is typically necessitated by a disability or injury that prevents an individual from caring for themselves.

Before creating one or naming one in your estate planning documents, learn more about these legal arrangements and how to protect yourself. 

What Is a Conservatorship?

A conservatorship is created to allow one individual to manage another's finances.

The conservator is court appointed and may be responsible for financial decisions such as retirement planning, the purchase or sale of property and the movement of any other financial assets. 

Estate planning attorneys may recommend a conservator or guardian be named in standard estate planning documents, such as the power of attorney. A conservator can be any adult, possibly a family member, who can be trusted with the responsibility of managing one's finances.

"Since a Conservator would be in charge of a person's assets, we nominate the same people who we nominate to serve as attorney-in-fact," Jennifer D. Taddeo, estate planning attorney and partner at Conn Kavanaugh in Boston, wrote in an email. "However, since a Guardian is in charge of the person themselves, we nominate the same people who are nominated to serve as health care agents in the client's health care proxy. Sometimes, these are the same, but if they're different, it is important for that difference to be reflected."

[ READ: Do-It-Yourself Estate Planning Mistakes. ]

 

What Is a Guardianship?

A guardianship is created in cases where an individual cannot take care of themselves and requires another person to make some or all of their personal decisions. These might include decisions about one's medical care, support services, housing or finances, according to Scott Sparks, founder and CEO of Sparks Financial, a Northwestern Mutual Private Client Group in Colorado.

"Although a court appoints both a conservator and a guardian, a conservatorship is generally limited to financial decisions, while a guardianship covers personal decisions, such as medical care, and may, in some cases, also cover financial decisions," Scott Sparks wrote in an email.

A guardianship can be thought of as similar to a parent-child relationship.

Avoiding a Conservatorship or Guardianship

Most states also have laws in place meant to protect those placed in a conservatorship or guardianship. Guardianships in New York, for example, require that the individual meet certain medical requirements to be determined unable to care for oneself and the burden of proof to meet such restrictions is high, Morgan says.

Beyond such legal protections, individuals can seek professional help in preparing for future circumstances that may prevent them from managing their finances and personal affairs. Common estate planning documents such as wills, powers of attorney, beneficiary forms and health care proxies can help individuals avoid being placed into a conservatorship or guardianship as well as protect themselves and their loved ones.

[ Read: 6 Common Myths About Estate Planning. ]

"Without prior financial and estate planning, if you become unable to handle your financial affairs or make healthcare decisions, a court may need to appoint someone (a conservator or guardian) to act on your behalf," Taven Sparks, principal and private wealth advisor for Sparks Financial, wrote in an email. "With some planning, you can help ensure your wishes are followed, and your loved ones may be able to avoid the need for a court to intervene (and the cost and stress of such proceedings during an already trying time)."

A financial advisor and attorney can work together to determine whether a particular situation merits a conservatorship or guardianship and put plans in place to avoid these legal arrangements.

"Don't be afraid to revisit your financial and estate plan and alter it based on your values, goals, and changing life circumstances," Taven says. "Your financial advisor can help you navigate those changes and help you think through the financial impact of various life events."

 

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How Conservatorships Can Prop Up or Tear Down a Loved One