Final defendant in $1.2 M guardian embezzlement case sentenced

One day in prison, but hefty restitution ordered

By Alex Rose

The final defendant in an embezzlement scheme involving wards of court-appointed guardianships was sentenced Thursday to one day in prison with three years of supervised release.

Alesha Mitchell, 44, of Suffolk, Va., was also ordered to pay $85,974 restitution and a $100 special assessment under the sentence handed down by U.S. District Court Judge Joel H. Slomsky of the Eastern District of Pennsylvania.

Mitchell, represented by defense counsel Heather Mattes, was charged with bank fraud and conspiracy to bank fraud by federal indictment in June 2021. She pleaded guilty in March 2022 to conspiracy to commit bank fraud for her role in the scheme.

Co-defendants Carlton Rembert, 70, of Hampton, Va., and Gloria Byars, 63, of Aldan, were likewise charged with bank fraud and conspiracy at that time, as well as five counts of wire fraud. Byars faced an additional charge of money laundering, but she died in August before she could be sentenced.

Byars was originally charged in 2019 with former Democratic candidate for county council Keith Collins and his wife, Carolyn Collins — Byars’ sister — as part of the same scheme. Byars had been facing hundreds of state counts before the eight-count federal indictment came down.

Keith and Carolyn Collins, of the first block of Princeton Avenue in Ridley Park, were facing 18 state counts each of theft by unlawful taking, theft by deception and receiving stolen property, and three conspiracy counts.

The married couple, who serve as pastors at the Church of the Overcomer in Trainer, pleaded guilty before Delaware County Common Pleas Court Judge Mary Alice Brennan to one consolidated count of theft by unlawful taking in March. They were each sentenced to four years of probation and ordered to repay more than $54,000.

According to information from the indictment and affidavits in the state charges:

Byars, who was also Rembert’s sister, had worked from 2008 to October 2016 at a Havertown business that cares for wards appointed by the state. In her position, she assisted the company’s owner in managing wards’ assets, and had access to their checkbooks and bank accounts.

Byars was appointed guardian of several wards in 2015, granting her access to their assets as well. She set up her own corporation in August 2016, called Global Guardian Services LLC, shortly before leaving the Havertown company.

Byars, Rembert and Mitchell fraudulently obtained more than $1.2 million of unauthorized checks from 120 incapacitated wards and deposited them into accounts they opened with local banks, then split the proceeds.

Byars opened business bank accounts for Global Guardian and “ICU Records & Billing,” while Rembert and Mitchell opened accounts for shell corporations “CWR Medical Services,” and “ACC Medical Billing LLC.” Rembert also opened business bank accounts in the name of a business he previously operated called Grace Home for Children.

Byars stole money from the wards’ accounts by writing unauthorized checks payable to ICURB, Global Guardian, ACC Medical Billing, CWR Medical and Grace Home in order to make the transactions appear to be legitimate medical expenses incurred by the wards.

According to a prior release from U.S. Attorney Jacqueline C. Romero, Rembert deposited more than $695,000 in checks into the shell business bank accounts, then withdrew more than $388,000 in cash.

He also obtained $217,082 in certified checks that he sent to Byars, while keeping a portion of the stolen ward money for himself.

Byars pleaded guilty in November 2023 to charges of conspiracy, wire fraud, money laundering and filing a false income tax return. The Delaware County Medical Examiner’s Office later reported the cause of death was the “combined toxic effects of different drugs” and that the manner was suicide.

Rembert, representing himself with Bala Cynwyd attorney Vernon Chestnut, was convicted at trial last year on charges of conspiracy, bank fraud and wire fraud. He was later denied motions for acquittal and a new trial.

Rembert was sentenced earlier this month to 5½ years in federal prison with five years of supervised release. He was also ordered to pay a $400 special assessment and $534,335 in restitution.

Assistant U.S. Attorneys Tiwana Wright and Samuel Dalke prosecuted the case.

“The greed and callousness here are off the charts,” Romero said in a release when Rembert was sentenced. “It’s vile that criminals target the elderly and infirm specifically to take advantage of their vulnerability. My office and our partners will continue to do all we can to hold these crooks responsible and protect our elders from such greed, fraud, and abuse.”

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Final defendant in $1.2 M guardian embezzlement case sentenced

Senate panel: Guardians must see incapacitated charges 3 times a year

by David Ress

Court-appointed guardians responsible for ensuring that incapacitated adults are treated well should check in at least three times a year, the Senate Judiciary Committee agreed Monday.

House Bill 2028, sponsored by Del. Danica Roem, D-Prince William, requires guardians visit their charges every 120 days, with at least one face-to-face visit a year. The other visits can be done virtually or by video call.

“This is simply to make sure they are checking in on people they’re responsible for,” Roem said. Courts appoint guardians to look after the affairs of people found to be unable to do so themselves.

She said she has been concerned about lax practices by guardians ever since a constituent told her about a sister’s death while under the oversight of a guardian.

“She died because of inattention and neglect,” Roem said.

Public guardians — individuals financed by a state program to look after indigent, incapacitated adults — are required to check on their charges once a month.

But unlike other states, which typically require guardians make at least four in-person visits a year, Virginia has had some cases in which incapacitated Virginians are not seen even one time in a year, Roem said. 

Mason pushes bill inspired by RTD's 'Unguarded' investigation

A 2020 Joint Legislative Audit and Review Commission study recommended a four-visit-a-year standard, but concerns about a lack of people to fulfill this requirement led Roem to compromise on the lower standard. JLARC found 11 guardians with caseloads of more than 20 people, and one who was responsible for 110 individuals.

Jane Powell, president of Central Virginia Families and Friends, said the once-a-year in-person standard is too onerous for family members, named as guardians, for residents in the state’s sole remaining facilities for people with intellectual or developmental disabilities, which are in Chesapeake and at the Hiram Davis center in Petersburg.

Many of those family members are elderly parents or aging siblings of the residents, and live hundreds of miles away, she said.

State Sen. Richard Stuart, R-King George, said he was concerned the bill gave guardians cover for not doing their jobs.

“I don’t know how you can look out for someone if you only see your charges a few times a year,” he said.

Roem said courts can demand guardians see their charges more frequently and that her bill simply sets a minimum standard.

The committee approved the bill 12-1.

It also approved another Roem guardianship bill that says a guardian shall not restrict an incapacitated person’s ability to communicate with, visit or interact with other people with whom the incapacitated person has an established relationship, unless that visitor is likely to harm or steal from that incapacitated person.

JLARC’s 2020 report found guardians have too much discretion to restrict contact with adults under their guardianship, noting that contact with family, friends and others can help prevent the abuse, neglect and exploitation of incapacitated adults.

A Richmond Times-Dispatch investigation reported in 2019 that VCU Health System and other health care providers had used the guardianship process to remove poor patients from hospital beds, sometimes against the wishes of family members. 

VCU Health exploring community collaborations for guardianship cases

The Senate committee on Monday also approved a measure largely aimed at helping families deal with inherited property. It involves old liens for judgments held by out-of-state buyers of debts who never bothered to file notices of repayment with Virginia courts.

Those liens can be a major headache when heirs want to dispose of property; the result is often that property ends up being lost in a tax sale, said Del. Carrie Coyner, R-Chesterfield.

The bill passed 13-1, with one abstention.

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Senate panel: Guardians must see incapacitated charges 3 times a year

Here's how Michigan is working to ensure court-appointed guardians don't take advantage of elders

by ESTELLE SLOOTMAKER 

Nicole Shannon, systemic litigation and advocacy attorney for the Michigan Elder Justice Initiative, and Alison Hirschel, director and managing attorney of the Michigan Elder Justice Initiative.

This article is part of State of Health, a series about how Michigan communities are rising to address health challenges. It is made possible with funding from the Michigan Health Endowment Fund.

Very few court-appointed guardianship cases reflect the plot of the popular Netflix movie "I Care a Lot," in which Rosamund Pike plays a predatory guardian who makes a living swindling the elders she's supposed to protect. However, similar situations are still unfortunately common enough that many Michigan providers and activists are working hard to ensure the guardianship system effectively serves Michigan's older adults.

When any adult becomes incapacitated, a Michigan county probate court can appoint a guardian to take care of the individual's needs. A similarly appointed conservator takes care of an incapacitated adult's property. One appointee can serve as both guardian and conservator. While most guardians and conservators do their jobs well and without issue, there are still many cases in which the incapacitated adult has deep concerns with their guardian or conservator's behavior.

Alison Hirschel is director and managing attorney of the Michigan Elder Justice Initiative (MEJI), elder law attorney at the Michigan Poverty Law Program, and serves on Michigan's Elder Abuse Task Force. The task force is comprised of more than 100 individuals representing 55 organizations who are dedicated to addressing abuse, neglect, and exploitation of Michigan's vulnerable older adults. One focus of the task force is making sure that court-appointed guardianships and conservatorships truly serve the people they are supposed to protect and support.

Alison Hirschel.

"Truly, we have so many of these cases," Hirschel says. "Many of our clients are concerned about how their guardians are spending money. Because there aren't adequate financial reporting requirements for guardianship, this can lead to real distrust and, sometimes, real problems with the guardianship. We also have cases where the guardians aren't spending money that needs to be spent. They're not paying their nursing home bills or their mortgages. We have many family members who contact us because they've been passed over to serve as a guardian."

For example, one older man who was both blind and deaf lived very successfully on his own. When a petition was made to appoint him a guardian, the court did not obtain an interpreter who could speak for him or to him. The judge could not appreciate how much capacity the man had and appointed a guardian. With MEJI’s help over the course of several years, the man's case was finally heard by the Michigan Supreme Court.

"He's now in charge of his own life and living independently as he had before," Hirschel says. "He got caught in the system because no one gave him a way to communicate, to express that he had capacity to manage his own life as he always had. There are lots of stories like that."

While designed to protect people who cannot care for themselves, guardianship, when abused, strips the ward of their most basic rights: where they live, what medical care they receive, what activities they take part in, and who they spend time with. One way adults of all ages can avoid court-appointed guardianship is to file an advanced medical directive that names one’s own choice of a medical patient advocate. (Many guardianship cases arise out of medical necessity.)

Hirschel notes that emergency and temporary petitions for guardianship are often granted quickly and with little oversight. When a court agrees to hear an emergency petition, decisions can be based on limited evidence. The person at the heart of the petition doesn't have a good opportunity to respond and the law does not require other interested parties, such as family or close friends, to be informed. And the current statute does not define what constitutes an emergency.

"Right now, an emergency is really in the eyes of the beholder," Hirschel says. "That might be okay if it were a true emergency and it was a short-term solution. But very often we see those emergency appointments turn into permanent appointments. That means the person has lost the right to make decisions about their life for the rest of their lives."

The long road to better guardianship guidance

Since the '90s, the state of Michigan has explored and enacted many reforms to its guardianship and conservatorship statutes. When the Michigan Department of Attorney General launched its Elder Abuse Task Force in 2019, guardianship and conservatorship became one focus of its work.

Katharyn Barron.

"When the task force was formed in 2019, the members first took a step back, read all previous task force reports, and asked, ‘What still needs to be done? What can we reasonably accomplish?' A task force often writes a report, puts it on a shelf, and disbands," says Katharyn Barron, Michigan's assistant attorney general, state public administrator, and head of the Elder Abuse Task Force. "We don't intend to write any report. We intend to push these initiatives through."

A few of the task force's many initiatives include limiting the number of wards per guardian; refining emergency petitions for guardianship/conservatorship to promote due process rights and ensure no less restrictive alternatives exist; ensuring that lawyers assigned to these cases spend quality time meeting privately with the vulnerable adult; requiring training and certification of professional guardians; increasing guardians’ visitation requirement to monthly; making sure family members are not passed by when appointing guardians; and improving protections for people when professional guardians seek to remove them from their homes. Many of these were introduced to the Michigan legislature in June 2021 through a package of four bills each in the state house and senate. If passed by the legislature, the bills will implement the remainder of the task force's first nine initiatives. 

"[The package of bills] puts into law the factors that judges should look at in guardianship cases," Barron says. "It is before the legislature now and we are expecting a decision on it soon."

Barron and Hirschel agree that many of Michigan’s professional guardians do right by their wards. In fact, input from these professionals was considered as the various initiatives were drafted. However, more help is needed to protect vulnerable adults of all ages from the few predatory professional guardians — and family members — who seek their own financial gain or neglect those in their charge. One grievance Hirschel often sees in her work is wards forced out of their homes and into long-term care facilities. Guardians find it much easier to place a ward in a facility where others attend them 24/7 and there’s only one bill to pay each month.

"We often see people who want more than anything to remain in their home," Hirschel says. "As soon as the guardian is appointed, in very short order, they get moved out of their home. Once they lose their home, they lose almost all their possessions and they're living in an assisted living facility or a nursing home with hardly anything from their entire life. It’s heartbreaking."

Closing gaps and ensuring safeguards

When handled correctly, a county probate court appoints a guardian or conservator when there is clear and convincing evidence that an individual cannot make informed decisions about their welfare and safety and when there is no less restrictive alternative. Family members or others close to the person are supposed to be the first considered as guardians.

"The system as it is right now, if it was fully implemented, would work. But I'm not convinced that [the laws] are fully being implemented," says Steve Burnham, guardianship diversion project co-chair, head of the Probate Registers Association, board member of the Michigan Guardianship Association, and former Kalamazoo County probate register. "I dealt with thousands of these cases every year. I don't think there's any one, single answer. It's a multitude of things. The changes that are being talked about can be good. But if we don't enforce the rules that are already there, what makes us think we're going to enforce any new rules?"

Burnham would like to see more funding for court staff to more aggressively investigate cases before guardians are appointed. During his years in probate court, family members were routinely sought out before professional guardians were appointed. And he has seen more problems with family members taking advantage of wards than professional guardians.

"The question is: how do you protect the wards, whether it be a public guardian or family?" Burnham says. "How do we protect vulnerable adults from any court-appointed fiduciary?"

Burnham and Hirschel co-chair a new task force subcommittee that is planning a guardianship diversion program. When implemented, this program will help ensure that guardians are appointed and monitored appropriately.

"We're concerned about all petitions for guardianship and conservatorship," Hirschel says. "We know that there have been problems across that whole process." 

For more information on elder abuse and the State of Michigan Elder Abuse Task Force, download its brochure.

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Here's how Michigan is working to ensure court-appointed guardians don't take advantage of elders

Guardianship Destroyed My Family

By Marian Kornicki 

November 12, 2021 was a great day for Britney Spears and a great day for justice when a judge freed her from a conservatorship that controlled every aspect of her life. It was definitely something to celebrate, but it was also a solemn day because Spears had had to endure a more than decade-long nightmare orchestrated by her father and others. It was a solemn day, because there are at least a million other, less famous, individuals who are still trapped in exactly this kind of arrangement.

Guardianship is an alarming threat to everyone’s health and welfare. In secret in a judge’s chambers, one’s rights to make personal and financial decisions can be stripped in moments. It is very widespread, but little known, although because of Britney Spears’ chilling testimony last summer and the persistence of the Free Britney Movement, this practice has been catapulted into the public’s consciousness.  (click to continue reading)

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Guardianship Destroyed My Family

The Rise of the Predator Class: Systemic Elder/Guardianship Abuse by Professional Predators

By: Don Bowman

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Question:

Are guardians, professionals in the legal system, and influential people in the political system stealing from wards (elderly and disabled individuals who have been placed in guardianships) and laundering the money through shell companies? Specifically, can shell companies be found by examining the April Lynn Parks court case and/or IKOR? In addition, is there a connection between the two? This document presents raw data about court-appointed guardian Parks and IKOR, an elder services franchise. Criminal wrongdoing in individual guardianship abuse cases is known. The criminal network, that runs from county courts and county Area Agencies on Aging (Adult Protective Services) to high-level government offices, is not known. Shell companies may be one piece of the puzzle.

Facts About Shell Companies:

A shell corporation is a company with financial assets but no significant business activity.

Shell corporations don’t create products, hire employees, or generate revenue. Rather, they store money and engage in financial transactions. Shell corporations can be used for illegal purposes like money laundering or legitimate purposes like storing funds in the early stages of a startup. According to the research group Global Financial Integrity, the U.S. is the second easiest country to create a shell corporation in. Delaware, Nevada, and Wyoming are the most popular states for creating a shell company due to lax incorporation requirements and strict privacy laws. Storing personal assets in a shell company makes sense for people with a large amount of wealth from investments.

The Panama Papers implicated a number of government officials and public figures in crimes ranging from tax evasion to money laundering. The investigation, which exposed the rogue offshore finance industry, showed that owners of shell companies can hide their identities from United States authorities This constitutes a “significant loophole” in the country’s ability to tackle money laundering and illicit financing. The Panama Papers may offer clues about how money is laundered after it is illegally obtained through guardianship scams.

Facts about Systemic Elder Abuse/Guardianship Abuse:

Systemic elder abuse/guardianship abuse is one of the three primary prey on the vulnerable schemes that has been perpetrated in family (civil) court by government agencies, judges, attorneys, and others in the legal system for over thirty years. This scam is known to include state legislators and may include members/former members of Congress. The National Association to Stop Guardian Abuse, or NASGA, is an organization that advocates for victims of guardianship abuse.

Unlawful and abusive guardianships ensnare the most vulnerable people in a larger and larger trawling net, which now includes those merely physically “incapacitated.” A corrupt court system has created a feeding trough for unethical lawyers and other “fiduciaries.” A growing number of these professionals have become nothing more than predators.

Wards in these circumstances are victimized under the deception of protection. Wards are defenseless and subject to neglect, abuse and/or exploitation by the very people chosen to protect them; they become invisible and voiceless.

Strangers (guardians) are often given total and absolute control of life, liberty, and property of their wards, who are denied:

•the right to contract, including the right to choose a lawyer;

•the right to control their assets and make financial decisions;

•the right to remain in their own home and protect it from sale;

•the right to protect and enjoy their personal property;

•the right to choose where to live;

•the right to accept or refuse medical treatment, including psychotropic drugs;

•the right to decide their social environments and contacts;

•the right to assure prompt payment of taxes and liabilities;

•the right to vote;

•the right to drive;

•the right to marry; and

•the right to complain.

Nevada Investigation of Guardianship Abuse:

The FBI refuses to investigate guardianship abuse, a form of public corruption. Previously, no state attorney general would investigate the crime either. Then Nevada Attorney General Adam Laxalt brought charges against professional guardian April Lynn Parks (and several others), and on November 5, 2018, Ms. Parks pleaded guilty to elder exploitation, theft, and perjury charges. Higher-ups weren’t prosecuted, but at least the problem of guardianship abuse was recognized.

Parks fled Nevada to avoid prosecution, but was later arrested in Pennsylvania. According to her online criminal report, she had an address in Malvern, which is about twenty miles from IKOR’s Kennett Square headquarters. IKOR is an elder services franchise that may be defrauding the elderly by illegally placing them in guardianships.

It is noteworthy that a corrupt Nevada guardian ended up close to a franchise that places elders, who have family and friends to offer assistance, in guardianships, contrary to Pennsylvania law.

Pennsylvania Guardianship Law 20 Pa. Cons. Stat. Ann. § 5518. In determining whether a person is incapacitated, the court must also make specific findings concerning the respondent’s need for guardianship services in light of existing alternatives, such as the availability of family, friends, and other supports to assist the individual in making decisions, and in light of the existence of any advance directives such as durable powers of attorney or trusts. 20 Pa. Cons. Stat. Ann. § 5512.1(a)(3); see also In re Peery, 727 A.2d 539, 541 (Pa. 1999) (a person cannot be incapacitated and in need of guardianship services if his impairment is counterbalanced by friends or family or other supports).

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https://www.upcounsel.com/shell-corporation

https://www.icij.org/investigations/panama-papers/

https://stopguardianabuse.org/

April Lynn Parks 1

https://www.lasvegasnow.com/news/local-news/april-parks-2-co-defendants-sentenced-in-nevadas-largest-elder-exploitation-case/1687024977

https://bouldercityreview.com/news/ex-guardian-pleads-guilty-to-exploitation-theft-49119/

Full Article & Source:
The Rise of the Predator Class: Systemic Elder/Guardianship Abuse by Professional Predators

Legislation bolsters guardianship reforms

By Colleen Heild

A measure is advancing in the state Legislature to give alleged incapacitated people – and those who care about their welfare – a greater voice in the legal process that can turn over management of their lives and finances to court-appointed guardians and conservators.

The legislation would allow people to call witnesses and otherwise defend themselves in court against allegations that they are incapacitated and provides for a new grievance procedure for complaints against guardians and conservators. It also details the ways someone can designate the guardian or conservator they want should the need arise.

The legislation, sponsored by Sen. Jim White, R-Albuquerque, and Rep. Daymon Ely, D-Corrales, builds on the slate of reforms enacted in 2018 that aimed at injecting transparency and accountability into New Mexico’s guardian/conservator system.

“Last year made quite an impact,” White told the Journal last week. “We made laws a number of years ago to create this guardianship and conservatorship system to protect the folks that can’t handle it themselves and then people found a way to abuse it. So now we’re making laws to hopefully stop the abuse.”

White said the proposal is the product of a series of meetings over the past year involving a group that included judges, the state Auditor’s Office, Disability Rights New Mexico, the Attorney General’s Office, the Governor’s Office and others.

The measure was approved unanimously by the Senate on Friday and was sent to the House for further hearings.

The measure, SB 395, adds teeth to last year’s legislation by requiring certification of professional guardians and conservators, and increases fines if they are late in filing required annual reports with the court about the incapacitated person’s status.

It provides that people who are alleged to be so incapacitated they can’t manage their affairs would be able to present evidence, examine witnesses and otherwise participate at a hearing in which a judge considers a petition – sometimes filed by family members or even a neighbor – that would authorize the appointment of a guardian or conservator.

That provision, according to a legislative analysis, is important “for the person alleged to be incapacitated to adequately defend themselves and present evidence at hearings.”

Supreme Court Justice Shannon Bacon told the Senate Judiciary Committee that the 52-page bill is “much more explicit what the protected person’s rights are.”

The measure also creates a process so that a protected person or those interested in that person’s welfare can file a grievance with the court if the person believes a guardian or conservator is breaching their fiduciary duty or otherwise acting inappropriately.

“You want anybody who’s interested or sees an abuse, you want them to be able to come forward and say we need to look at it,” White told the Senate Judiciary Committee.

Once a grievance is filed, the judge who appointed the guardian or conservator is required to review the grievance, schedule a hearing if appropriate and take any action supported by the evidence.

Bacon, who as a state District Court judge in Albuquerque served as the courts’ chief representative in reform discussions, has since been appointed to the state Supreme Court by Gov. Michelle Lujan Grisham.

Bacon told the Judiciary Committee that the Supreme Court has already approved rules – not yet put into place – anticipating approval of SB 395, to create a standardized grievance form available to people who seek to file such grievances.

Bacon said court rules will set out the process so a judge can hear all sides of a grievance.

And she added there is a “fail safe” mechanism contemplated so judges can decline to consider a grievance if a similar grievance has been filed within the prior six months and was acted upon by the judge.

The measure would allow anyone interested in the protected person’s welfare to file a grievance.

“We want individuals to say ‘something doesn’t seem right’ and if you start to narrow the scope as to who can say something isn’t right, we’re just putting this all back in the closet,” Bacon told the committee.

Another safeguard in the proposed legislation would allow the court to appoint a court investigator to assess a protected person’s mental and/or physical capacity no later than 10 years after the initial appointment of a guardian or conservator, and every 10 years after that.

Some people, such as those with traumatic brain injury, may have improved to the point that they can manage without a guardian or conservator, Bacon said.

The 10-year review would supplement the legally required annual or initial 90-day reports judges receive from guardians and conservators they appoint.

The bill also specifies what types of documents, such as a will, a person can use to designate their choice of guardian or conservator if he or she becomes incapacitated in the future.

The person designated would rank second on the priority list a judge by law must consider in deciding whom to appoint. The first would be a guardian already appointed in another jurisdiction.

“That’s in there also,” White said, “that if they’ve got a will or a power of attorney, that those documents are respected.”

The bill is the latest attempt to reform the state’s adult guardianship/conservatorship laws after a 2016 Journal investigation and follow-up stories revealed weaknesses in the system, which allowed incapacitated people in need of protection to be victimized.

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Legislation bolsters guardianship reforms

New Mexico lags in guardianship reform

The New Mexico Administrative Office of the Courts reported in a 2009 legislative analysis “that there is no system in place in New Mexico to assure effective oversight and monitoring of court-appointed guardians.”

Four years later, another legislative analysis found that conservatorships and guardianships were becoming more common, but “in New Mexico, there is limited regulation of what is known as ‘corporate guardianship,’ ” which involves court appointment of a for-profit or not-for-profit entity that is paid to be the legal guardian – either from the ward’s assets or by the state.

Little has changed since then, as New Mexico lags behind other states, including Texas and California, that have made reform of the system a top priority.

“We are focused on making sure that these people are protected, and it’s a big issue, a hot topic all throughout Texas,” said Jeff Rinard, guardianship certification program director in Texas.

“Nationwide, it’s a big deal, especially as the population ages.”

But in New Mexico, which has one of the most secretive guardianship/conservatorship systems in the nation, the state doesn’t know how many people are living under a court-approved guardianship or conservatorship.

In a special project funded two years ago by the Legislature for the 2nd Judicial District, the Albuquerque-area court identified about 6,000 “active” guardianship or conservatorship cases in Bernalillo County alone, some dating back to the early 1950s. Two special masters have been spot-checking cases and have made home visits to find out if wards are OK and to check their living conditions – if they are still alive.

The rest of the state? State court officials say the courts’ computer system can only show the number of guardianship cases that have been active since 2016, but efforts are underway to improve tracking of cases prior to that time.

No records

A judge in New Mexico typically sets a 30-minute closed hearing to make a potentially life-changing, and often irrevocable, decision on whether to place an allegedly incapacitated person in the hands of a family member guardian or guardianship firm.

If the request is granted, based on reports presented to the court, the incapacitated person is stripped of virtually all his or her rights, with the guardian/conservator assuming authority to make decisions on every aspect of that person’s life and finances.

The guardianships break down into three general categories:

• Cases in which a family member is appointed guardian, which account for the vast majority.

• Cases in which a for-profit or not-for-profit guardian is appointed for someone with few assets and is paid by the state – $3,650 a year for each incapacitated person.

• Cases in which the allegedly incapacitated person has assets and a commercial guardian/conservator is appointed and paid from the assets, often charging hundreds of dollars an hour and hiring others to provide services that could include help with personal hygiene, grocery shopping and even dog walking. Conservators have virtually total control over financial decisions.

Family members interviewed by the Journal have complained that commercial guardians/conservators ignored the incapacitated person and wasted estate assets against the wishes of that person and family members.

They said efforts to complain to the judge who made the appointment are often futile.

Among their complaints: Guardians and conservators can charge excessive fees with little justification required by the court.

And they say a family member who hires a lawyer and files a petition for guardianship is in the driver’s seat from then on, partly because judges typically appoint that lawyer’s recommended team to advise the court whether to grant a guardianship. That practice has been rejected, for example, in California, where judges use a court investigator on staff to investigate the need for a guardian.

A 2013 legislative analysis said there is no specific mechanism in New Mexico for complaints against corporate guardians who don’t have contracts with the state Office of Guardianship. Texas has overhauled its system to put licensure for guardians in place, along with a complaint system.

The Office of Guardianship, which contracts with for-profit and not-for-profit firms to provide guardian or conservator services to low-income individuals, does have the authority to investigate complaints against its guardian contractors.

But the 2013 legislative analysis said that because the office works closely with its contractors, “there is an inherent conflict of interest.”

And what about the complaints the office has investigated?

Records custodian Justin Moore told the Journal: “The Office of Guardianship has no public records showing the number of complaints filed against any particular contractor. Moreover, such complaints are exempt from inspection because they related to “client complaints against a contractor,” which he said are exempt from public inspection.

The state’s Adult Protective Services Department investigates complaints against guardians and makes referrals to the state Attorney General’s office, but a spokesman last week said the agency’s tracking doesn’t distinguish how many referrals have involved guardians.

Reforms elsewhere

A federal Governmental Accountability Office report in 2011 noted that many states reported having limited resources for monitoring guardians. But that didn’t stop some, including Delaware and Texas, from recruiting volunteers to help oversee guardians.

Delaware officials reported that their volunteers serve as liaisons between guardians and the courts, visit guardians and wards, and report to court officials about once every six months.  (Click to Continue)

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New Mexico lags in guardianship reform

Springfield Advocate Testifies At Senate Aging Hearing

Pushing to better protect seniors from neglect and abuse by court-appointed guardians, Missouri Senator Claire McCaskill helped lead a hearing on this topic today.

Jessica Kruse with Ozarks Elder Law in Springfield testified that many judges and clerks, especially in rural areas, can’t oversee every move by guardians.

Medical wishes, family support, and money are all on the line.

"Funding for monitoring programs is one area where the federal government can assist and reduce financial abuse in guardianship cases," said Kruse.

Kruse says, especially in rural areas, the systems are strained.

"It is very difficult for the judges and clerks to keep tabs on each guardian and conservator in their jurisdiction.  In addition to this, each state has it's own statutory system for guardianships that are carried out inconsistently within each county and each state," added Kruse.

The Senate Aging Committee hearing was led by Missouri Democratic Senator Claire McCaskill and Maine Republican Senator Susan Collins.

 According to the most recent published statistics, the Missouri Department of Health and Human Services received over 17,000 initial reports of abuse, neglect, and financial exploitation of seniors in one year. It’s unclear how many of these cases involve financial exploitation specifically.

Pointing to a recent report recommending better inter-governmental communication, McCaskill asked, “The problem is, when Social Security finds out there is fraud they are not sharing that information with state courts, even though they share it with other federal agencies—what’s the rationale for that? The (Social Security Administration) have caught someone ripping someone off, what in the good lord’s name are they doing keeping that information from state authorities?”

Full Article & Source:
Springfield Advocate Testifies At Senate Aging Hearing

Elderly LIers need friends and neighbors as guardians

If you live alone on Long Island without family nearby, or find it more difficult to shop, cook or pay your bills, it's likely that you will need a court-appointed legal guardian.

And those of us responsible for ensuring that you are protected are running out of people willing to serve as guardians for those who lack the private funds to pay for care. With an average of 300 guardianship applications annually in Nassau County over the last five years, and the over-65 population approaching a quarter of a million in the county, this is a looming crisis in elder care.

Under state law, a person can go to court and advise judges that someone they know can no longer take care of himself or herself or their property needs and may be harmed if a guardian is not appointed. If there is a relative or friend who can serve as guardian, we willingly appoint that person. But if there is no one available -- now a frequent scenario -- then it's up to the courts to appoint attorneys as independent guardians from an already approved list. They would be paid as guardians -- usually working four to five hours a month in a simple case -- from the person's funds.

Increasingly, however, there are no private funds from which to pay a guardian because the money of those who need the help barely covers their living expenses. As a result, more and more attorneys are dropping off the guardian list. Still, judges are legally responsible for appointing a guardian for a needy person.

The many cases that come before my court have some common denominators: In their own ways, people are incapacitated and need guardians to perform various tasks, including making serious medical and personal decisions.

Should an 83-year-old retiree widower in Levittown be trusted to live in a home where he believes his wife still lives? If a Long Beach widow has become a hoarder, should she be forced to sell her home and move to a facility? Should an 85-year-old man who never married be forced to have health aides four hours a day at his Franklin Square home if he objects?

The Nassau County Department of Social Services contracts with two private agencies that act as guardians for people who qualify for its public guardian program. The program is helpful, but it is much more restrictive than similar programs in New York City, and it doesn't accept anyone who is homeless, or lives in a nursing home, hospital or long-term care facility. But those individuals can have as many needs as those living alone at home.

Until we as a society give the neediest among us the help they deserve, the problem will only get worse. While there may be no one answer, there are several things that could be -- and must be -- done immediately.

Form a task force. Dr. Maria Torroella Carney, chief of geriatric and palliative care of North Shore-Long Island Jewish Health System, has called for the creation of an expert group to begin to address the medical needs of the elderly in our area. Having also served as the Nassau health commissioner, she is uniquely qualified to head up the task force.

Get more funding. Nassau County government must increase its spending on the public guardian program while lobbying Albany and Washington to allow us to pay guardians out of an individual's Medicaid funds. We are no longer allowed to do that because the state does not consider guardians part of "medical care."

Kick off an education effort. We desperately need to educate the public -- at libraries and community centers -- about this impending crisis and get people to volunteer to become guardians for friends and neighbors.

A doctor once testified before me that from the day we are born, we begin aging. That process may be inevitable, but how we treat the neediest and voiceless in our society is not.

Let's do the right thing now.

Arthur M. Diamond is a state Supreme Court justice in Nassau County.

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Elderly LIers need friends and neighbors as guardians