Special report: How can Michigan fix a guardianship system that fails some kids and older adults?

by Estelle Slootmaker

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.

Courts often appoint a guardian to take over legal responsibility and make all legal, social, financial, and health care decisions for a child or an incapacitated adult, known as a ward. The purpose of guardianship is to make sure that wards are protected from harm, homelessness, neglect, or financial fraud. And while few court-appointed guardians take intentional advantage of their wards, the guardianship system as it works today in Michigan puts wards at risk for both unnecessary forfeiture of all civil rights and diminished quality of life.

In some cases, family members have been passed over in favor of professional guardians; wards have been moved from their long-time homes into nursing homes, with their treasured personal items ending up in the garbage; guardians have prevented visits with loved ones; and guardians have spent wards' money in questionable ways.

"We've prosecuted a number of professional guardians in the last two years because they siphoned off resources of the people that they were appointed to protect," says Scott Teter, Michigan assistant attorney general and leader of the Michigan Attorney General’s Office Elder Abuse Task Force.

Guardianship is a hot topic for many agencies, policy advocates, and elected officials in Michigan, who are pursuing a variety of solutions to ensure that guardianship is judiciously applied to the benefit of Michigan's wards and that alternatives to full guardianship are made more available.

"A problem in the present system is there's not good education on the alternatives to guardianship. So part of our legislative agenda this past year was to increase the alternatives," Teter says. "We don't have guardian certification in the state of Michigan. There are no mandatory minimum educational requirements, background checks, criminal history checks, bonding requirements, nothing, and no continuing education. All that you need to be appointed to take over another human being’s life in the state of Michigan is that the judge appointed you."

One solution to Michigan's guardianship issues, endorsed by the Elder Abuse Task Force, is a set of bills currently making their way through the state legislature. Michigan House Bills 4909-4912 and 5047 would require guardians to visit their wards monthly instead of quarterly; set a caseload cap on guardians appointed to serve indigent individuals; and ensure that guardians ad litem — the court-appointed professionals who assist courts in determining if guardianship is warranted — report uniform, high-quality information to probate courts.

"Judges who are assigned to appoint these guardians and make those determinations on whether or not somebody needs one don't get the best information," Teter says. "Part of our legislative package is to make sure the lawyer who's appointed to represent the ward would have an adequate time to review the report and then cross-examine on it like we deal with any other piece of evidence submitted in court. In addition, we have increased the requirements in medical assessment."

This means the guardian ad litem would be required to communicate with wards at their locations, away from other interested persons, and in a language they can understand. The guardian ad litem would be required to explain the person’s legal rights, ask who they want or do not want as a guardian, and take steps to ensure they are able to attend their guardianship hearing. If they can’t, efforts could be made to move the hearing or provide other reasonable accommodations.

"The irony is that you cannot buy a Christmas tree in the state of Michigan without having to go through a licensed grower and a licensed seller. We have more regulations and supervision over the people who grow potatoes in the state of Michigan than we do the people who control other people's lives as a guardian or conservator. That makes no sense at all," Teter says. "Part of our legislative package is to require guardian certification. If you're going to have that kind of power and that kind of responsibility over another human being’s life, we believe you ought to be properly trained to execute those responsibilities."

Guardianship and health care delivery

Sarah Milanowski, enrollment and marketing manager for LifeCircles PACE in Ottawa County, sees firsthand how guardians sometimes drop the ball. In her work with older adults participating in a PACE (Program of All-inclusive Care for the Elderly), she has seen guardians who do not fully understand the rights, responsibilities, and expectations that go along with their role. She's also seen PACE participants who have guardians appointed in a different county "fall off the radar."

"If we don’t know who is the person making a medical decision in a crisis situation, we're in a pickle as a health care provider," Milanowski says. "Another common challenge we see is professional guardians. Most of them have to take on a lot of cases to make the business run financially. While those agencies are often very well intentioned, they are usually the ones handling the most intense cases with the most significant crises. Sometimes clients in crises aren't able to access the services they need because the agency is putting out fires for other people."

Milanowski notes that while more Michiganders are living longer, they are not living better. Complicated living situations, complex health issues, and financial constraints make it difficult to make decisions.

"Do we need a permanent guardian for every single decision?" she says. "Or do we need alternatives so the person can make decisions based on what matters most to them with the support of a trusted person?"

Milanowski says that while the intent of the new state legislation is good, she would prefer to see available alternatives to guardianship utilized more often. For example, adults can proactively appoint a family member or loved one as a power of attorney over their financial and health affairs, to be activated only if they are incapacitated. Limited guardianship can preserve more of an individual’s civil rights. She would also like to see a state office or program to help people navigate guardianship decisions and provide education on other alternatives.

"Professional guardians are needed. I don't want to see us create so much legislation that we leave them out, because that creates a whole other problem," Milanowski says. "The solution has to be multifaceted. Support what already exists, but also educate people. The public guardians that exist in our area now are doing the best they can with really challenging circumstances. If we don't have a great comprehensive plan, we might put people at more risk."

A new alternative: Michigan Guardianship Diversion Project

With funding from the Michigan Health Endowment Fund, the Michigan Elder Justice Initiative (MEJI) is collaborating with probate courts and local organizations in Genesee, Bay, Grand Traverse, and Muskegon counties on a two-year pilot called the Michigan Guardianship Diversion Project (MGDP). Launched in March 2024, the project seeks to reduce unnecessary guardianship of older adults and adults with disabilities by connecting them to community services, public benefits, and legal alternatives to guardianship.

MGDP staff are working with probate court staff, guardians ad litem, lawyers, health care providers, and other community partners to troubleshoot cases where an alternative to guardianship may exist. Organizers say the pilot is already showing positive results.

"We hope that we can produce something that's scalable, sustainable, can draw attention, find solutions, develop protocols, and develop trainings and materials that can benefit lots of people all around Michigan and beyond," says Laura Kubit, MEJI staff attorney and MGDP co-coordinator.

Kubit brings nearly 30 years of experience with Adult Protective Services and 10 years as a civil legal aid attorney to the project.

"We can try to craft solutions that hopefully work for everyone and really make a difference," she says. "When you know the inner workings of that system, you can advocate in a way that will be most effective."

The alternatives that MGDP staff facilitate for folks can include appointing powers of attorney for health care or finances, and representative payees for Social Security or veterans' benefits. Those appointees can be trusted family members or friends who can also help the person in supported decision-making. The program also connects people to home- and community-based services like Meals on Wheels or transition services for people in long-term care facilities who want to reenter the community.

"The options are out there already. You don't need to create them," says MGDP co-coordinator Rachel Richards. "I've worked with the adult elderly and disabled populations since 1995. I think Michigan has seen some great strides that are long overdue. This project is one of them."

Kubit says current guardianship law has the potential to work well, but practical barriers prevent all evidence from being considered in a guardianship appointment, while potential wards are not guaranteed the right to communicate what’s important to them. Current law requires that guardians communicate to the greatest extent possible with wards about important decisions in their lives, exercise authority in the least restrictive way, and promote autonomy.

"A lot of professional guardians, whether they're public, private, family members, or lay guardians, don't necessarily have the knowledge, support, resources, or time to provide all of the needs in the best possible way that the law contemplates," Kubit says. "I do think that most people are doing the best that they can."

Kubit also wants wards to be able to get out of guardianships more easily. She recalls a past client who was discharged from the hospital to a nursing home. His Medicare coverage ran out and he was trying to apply for Medicaid. While temporarily physically incapacitated, he was fully able to handle his own finances. His bank refused to release needed bank statements unless he came to get them in person. With great difficulty, Kubit was able to jump through all the hoops necessary to enroll him in Medicaid. Without her help, the nursing home would have had two options for addressing his growing bill: evict the man against his will or petition for guardianship. 

In other cases, guardianships are overly restrictive. Richards explains that instead of granting limited guardianships, courts usually grant full guardianships that take away a ward’s autonomy over decisions that they're still capable of making for themselves. When a guardian is not a family member or friend, they may not know the individual or their expressed wishes. Because professional and public guardians have multiple wards, the amount of time they can spend with the person is limited, and it is difficult for them to determine the person's wishes and desires.

"Where do they want to live? Who do they want to have relationships with? What do they like to eat? What are their daily habits? Those are some of the ways that this falls short," Richards says. "There are times when bad actors abuse authority. For our project, that's a concern. But individuals are coming to us before the guardianship occurs to try to look at alternative methods to alleviate the need for guardianship."

Better enforcement, education, and certification

Former Elder Abuse Task Force member Steven Burnham worked for 17 years as the Kalamazoo County probate register. During his tenure, he was often asked why Kalamazoo County had fewer guardians appointed than any other county in the state. His answer was "My diversion programs." At Burnham’s recommendation, the county hired an investigator to look into guardianships before, or sometimes after, they were put in place. He also worked with a Western Michigan University Medical School program, Active Citizenship, to send students to interview guardians and wards.

By better getting to know what was going on in prospective wards’ lives, the court was able to come up with individual alternatives that suited some people better than guardianship. For some, a guardian was the best solution. Because not all Michiganders have a friend, family member, or other trusted individual who can take on that role, public and professional guardians will always be needed.

"Sometimes we’ve got to step in and get a substitute decision-maker to help make decisions as to their wellbeing, their health care, who they hang out with," says Burnham, who also serves on the board of the Michigan Guardianship Association (MGA). "A large and growing segment of those that need a public guardian are much younger, [in their] 30s, 40s, 50s. It could be a traumatic brain injury or substance abuse."

Burnham does not support the proposed guardianship legislation. He says that the current situation in Michigan reflects poor enforcement of existing laws and wonders if new laws will be enforced any better. Like Milanowski, he worries that requiring guardians to spend more time with wards without additional compensation may shrink a workforce already squeezed by shortages. Guardians with a ward living solely on Social Security are paid $83 a month.

However, like the Elder Abuse Task Force, Burnham and the MGA strongly endorse more education for guardians and a state-mandated certification process.

"To become a nail technician or dog groomer takes hundreds of hours of training in what to do [and] what not to do," Burnham says. "And here’s the scary thing: if I put your name on a line in a petition and a judge decides you’re incapacitated and no family member is trying to be appointed, you’d have a big shock. With respect to guardianship, we’re more concerned about pets and French nails than adults."

Lead graphic by Jay Hero. All other images courtesy of the sources.

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Special report: How can Michigan fix a guardianship system that fails some kids and older adults?

‘Spirit-of-the-Law’ vs. ‘Letter-of-the-Law’: What It Means for Alabama Guardianship Legislation

One early memory of my law enforcement career was the day I learned the concept of the-letter-of-the-law versus the-spirit-of-the-law.

 

Simply put the-letter-of-the-law means the law is applied exactly as written. For example – the speed limit on highways is 65 mph, any vehicle traveling at 66 mph or greater is in violation of traffic law and shall be issued a speeding ticket.

 

The spirit-of-the-law leaves room for officer discretion. This means I could consider other factors when deciding to issue a ticket, give a warning, or ignore a violation all together. Following the spirit-of-the-law allowed me to apply the law as the legislature intended, especially in situations with extenuating circumstances or a warning was more appropriate.

 

I think we would all agree, darting across the middle of a busy street can create a dangerous situation for all and could be grounds for a jaywalking violation, but casually walking across the middle of an empty street would not warrant a ticket. Endangering others by driving under the influence is not the same as not coming to a complete stop at a stop sign.

 

Sometimes, however, the enacted version of a law does not quite hit the mark. The spirit is clear, but the letter of the law leaves room for interpretation – a loophole. We all know, just as water follows the path of least resistance, if there is a loophole in the letter of the law – there’s a lawyer who will take advantage.

 

Terri LaPoint, an investigative journalist with RealNewsSpark, has written extensively on the exploitation and civil liberty destroying nature of Alabama’s guardianship laws.

 

In early April of this year, LaPoint testified before the Alabama House Judiciary Committee on the need for guardianship reform.

 

LaPoint gave a powerful speech in which she pointed out the guardianship and conservatorship system started out as a way to protect the most vulnerable among us – our elderly. However, LaPoint has seen the system fail even though the 5th Amendment’s guarantees that no person shall be “deprived of life, liberty, or property, without due process of law.”

 

She went on to say some who have been trusted to look after our most vulnerable have used loopholes personally benefit from the way the current laws are written. In her reporting, LaPoint has also found a system, which uses fear tactics and a lack of accountability to exploit seniors and drain their estates of assets meant for their families to inherit.

 

She said so many seniors have been victimized by the current system that something must be done. At this moment, violent criminals in Alabama prisons have more rights than a senior put under guardianship. LaPoint closed by saying this could not have been the intent of the legislature and called for reforming this system.

 

I too do not believe Alabama’s guardian and conservatorship laws were intended to be abusive, but as written, the letter-of-the-law permits exploitation. If a loophole can be exploited for financial gain or billable hours, we all know there will be more than a few attorneys who will take advantage.

 

In most situations, the spirit-of-the-law is sufficient to protect most people, but as seen in Terri LaPoint’s excellent reporting on Alabama seniors, Joann Bashinsky, Marian Leonard, and Marguerite Trent Caddis – it isn’t always enough.

 

This is why I support Alabama Representative Joe Lovvorn’s (R-District 79) House Bill 603. Rep. Lovvorn’s bill will bring much needed reform to Alabama’s guardian, conservatorship, and probate court rules and procedures.

 

Among the many improvements proposed in HB603:

• “undue influence exerted on a person is not, alone, adequate grounds for determining that person is incapacitated and in need of a guardian”
• bill would prohibit the appointment of a guardian or conservator when a valid power of attorney or health care directive exists and the person chosen is willing and able to perform needed functions.
• HB603 would declare a guardianship void if the due process rights of the alleged incapacitated person were determined to have been violated.

The American Bar Association Rules of Professional Conduct states, “The legal profession is largely self-governing” and the “legal profession’s relative autonomy carries with it special responsibilities of self-government.”

 

When there is a loophole in a poorly worded law, we expect people to do what is right, not what is what is allowed. Unfortunately, history has shown us, especially in Birmingham, we cannot leave the fox to guard the hen house and expect it to “self-govern.”

 

Predatory attorneys across this country know exactly what they are doing…and it is disgusting. They are pillaging the hard earned wealth away from their victims, sometimes leaving their heirs with pennies (as in the Marguerite Trent Caddis case – link).

 

I trust the Alabama legislature will do the right thing and pass Alabama HB603 into law.

 

Bernard B. Kerik was the 40th Police Commissioner of the New York City Police Department and is a New York Times bestselling author.

 

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‘Spirit-of-the-Law’ vs. ‘Letter-of-the-Law’: What It Means for Alabama Guardianship Legislation

Senator Zaffirini recognized by AARP for guardianship legislation

Submitted Report

Senator Judith Zaffirini, (D-Laredo), received the 2019 Legislative Achievement Award from AARP Texas. The organization presented the award to recognize the senator’s legislative efforts to improve the state’s guardianship system. Her Senate Bill (SB) 31, which went into effect on Sept. 1, established the Guardianship Abuse, Fraud and Exploitation Deterrence Program, which will help prevent the exploitation of persons who need a legal guardian because they cannot care for themselves.

“I was delighted to receive this award and to have AARP Texas’ support in passing this critical bill,” she said. “We developed SB 31 after hearing testimony about terrible physical and financial abuse that went undiscovered throughout the state for years. I hope guardianship cases now will receive more effective oversight, precluding further harm.”

Zaffirini received multiple awards following the legislative session, during which she passed 127 bills. The Meadows Mental Health Policy Institute, the Combined Law Enforcement Associations of Texas and the Texas Library Association also honored the senator for legislation she passed in 2019.

“Important legislation often must be filed again and again before it is successfully passed into law, such as the Guardianship Abuse, Fraud and Exploitation Deterrence Program, which I passed on my second try,” she said.

Preparation for the legislative session that begins in 2021 is underway, and Zaffirini encourages advocates to begin working with her now to enhance their future success. “My staff and I already are working with stakeholders to re-file worthy bills that failed and to develop new legislation.”

Zaffirini’s work ethic is reflected in her career-long 100 percent voting record and her perfect attendance in the Texas Senate since 1987, except for breaking quorum deliberately to prevent an untimely re-redistricting that the U.S. Supreme Court (2006) ruled violated the Voting Rights Act and disenfranchised voters in SD 21. She is the second highest-ranking senator and the highest-ranking woman and Hispanic in the Texas Senate.

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Senator Zaffirini recognized by AARP for guardianship legislation

Bill would require monitoring of court-appointed guardians

Lou Russo

NEW FAIRFIELD — The grit and the grace that animate Lou Russo’s face belies the desperate place the World War II veteran was in a few seasons ago at the hands of a court-appointed conservator.

“I will never forget it, because I was treated like a bag of dirt in the street,” the 98-year-old bachelor says of the 17 months he spent against his will in a nursing home while his conservator drained his bank account, scrapped his construction trucks and rented out his house. “Sometimes I dream about it at night and think, ‘What the hell happened to me?’”

Russo’s story ended with a hero’s welcome home because two young friends stepped in to fight for him, bringing the conservator’s misconduct to the attention of the press, police and politicians. But there’s a sentiment among those who know his story that Russo never should have been mistreated.
Lawmakers in Hartford concur.

State politicians and the probate court itself are pushing for legislation to encourage more effective guardianship of the elderly and incapacitated. The legislation would create formal standards for conservators and provide for random audits to prevent exploitation.

“We are joining a nationwide effort to strengthen oversight in conservatorships,” said Paul Knierim, Connecticut’s probate court administrator. “We are working with groups nationwide to improve preventative measures so that conservators get the support they need to act with the utmost integrity.”

Although Russo’s mistreatment is not thought to be typical of the thousands of cases across Connecticut, in which people incapable of managing their own affairs are appointed guardians by probate court, cases like his are clearly part of the push in Hartford for reform.

“This is about Lou Russo, no doubt,” said state Sen. Michael McLachlan, a co-author of the bill and a vice chair of the state legislature’s joint Judiciary Committee, which is reviewing it. “Unfortunately there are other cases similar to Lou’s, but he is the local face of this problem.”

The legislation’s intent is intended to support thousands of family members appointed by the court to manage the health and finances of loved ones incapacitated by age or mental affliction, but also to discourage misconduct by auditing conservators’ accounts for fraud.

“Anything that increases oversight is always welcome,” said Dan Gaita, a former Marine who at one point was the only person advocating for Russo’s rights. “There are still unresolved issues with Lou’s case, but we are trying to let him enjoy his life.”

The legislation comes at the same time that the probate court is rolling out a statewide training program to help conservators navigate increasingly complex systems of health care, property management and public assistance programs.

“The world is getting more complicated, and we have heard a consistent drumbeat from conservators and judges telling us a formal training program is warranted,” Knierim said. “No single person can reasonably be expected to master all this stuff.”

The accountability legislation also comes at a time when the population is aging in Connecticut and across the country,

Nationwide, the number of people 65 and older is expected to jump from the current 46 million to 88 million by 2050, according to federal Government Accounting Office. In Connecticut, the AARP estimates that 600,000 people are 50 or older.

“The bill ... would put Connecticut at the forefront in effective court monitoring,” said Claudio Gualtieri, advocacy director of the AARP Connecticut in testimony during a public hearing on the legislation last week. “These improvements will help protect older adults and give support to family caregivers.”

The aging trend is complicated by the prevalence of mental afflictions, the legislation’s supporters said.

For example, 75,000 people in Connecticut have Alzheimer’s disease, and thousands more have other forms of dementia, the Alzheimer’s Association says.

“Due to the progressive nature of the disease, and its profound impact on the victim’s ability to make even the most basic decisions regarding their health care and other financial matters, many people with dementia end up being conserved,” said Ian MacDonald, public policy director for the Connecticut chapter of the Alzheimer’s Association in testimony.

Lou’s law
Those who know Russo’s story might immediately think of his quick wit or his gracious spirit, which was on display during a recent Veterans Day celebration, when volunteers built a stage in the back yard of his New Fairfield home to hold all the VIPs who came to honor him with speeches and plaques.

It might be hard for those who know him now to remember how brokenhearted and powerless the combat veteran was in 2013, when he was admitted against his will at a Danbury nursing home while his court-appointed conservator disposed of everything he owned.

A social worker had reported the partly collapsed roof and poor general condition of Russo’s home, and Probate Court Judge Martin Landgrebe ruled that Russo needed a conservator.

Had Russo had able-bodied family members nearby, the judge might have appointed one of them to manage Russo’s return to health and oversee home repairs. As it was, Russo was single and alone, so the judge appointed a businessman named Mark Broadmeyer to manage his affairs.

Instead, Broadmeyer sold Russo’s possessions and rented his home to another family.

After persistent objections by Gaita, Landgrebe eventually reviewed the conservator’s records and ordered Broadmeyer to repay Russo $34,000. But at that point, Russo’s nursing home bill had accumulated to $100,000.

When the nursing home offered to settle with Russo for a mere $10,000, Russo’s response was “That’s how much they should pay me.”

In the end, the nursing home dropped all claims, saying Russo had suffered enough.

Today, Russo is living in the home he built himself under the conservatorship of Joseph Schirmer of Danbury, one of the leading volunteers in Lou’s life, who not only accompanied him to court with Gaita, but helped organize the corps of volunteers who remodeled Russo’s home.

Schirmer said he was pleased about news of the legislation in Hartford.

“We know how bad the system is,” Schirmer said. “People have to be held accountable.”

Knierim said the legislation was not drafted in response to any one case but agreed that egregious cases of abuse such as Russo’s were alarming.

“Most definitely this legislation is a recognition that seniors and individuals with disabilities can be vulnerable to neglect, abuse and financial exploitation, and that is a very high priority for us in the probate court system,” he said. “We try to learn from every case that doesn’t go the way it should.”

McLachlan said there was no opposition to the legislation.

The next step is for the Judiciary Committee to vote on the legislation, and determine whether it can be voted on in the Senate and the House of Representatives, he said.

“The sad thing about this is Lou had to serve as an example of why we need this legislation,” McLachlan said.

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Bill would require monitoring of court-appointed guardians

Sikeston woman fights to get mother out of a guardianship

KFVS12 News & Weather Cape Girardeau, Carbondale, Poplar Bluff

SIKESTON, MO (KFVS) - The daughter of a Sikeston, Missouri woman who is fighting to get her mom out of a guardianship is taking her battle to Jefferson City.

Teala Mainzer testified on Wednesday, February 1 before a Senate Committee on behalf of Senate Bill 104.

Sponsored by Cape Girardeau Republican and Missouri Sen. Wayne Wallingford, the measure would require the court to prove that a spouse or family member is not able to care for that loved one before placing them with a third party like a public administrator.

Mainzer's been fighting to bring her mom home for nearly three years.

"My desire is to bring her back home to her family, where she wants to be," Mainzer said. "She never wanted to be in a nursing home. I mean, she wouldn't want to be under the care of a stranger. She wants to be around her children. She's happy when her kids are around."

Missouri Sen. Wallingford says he's encouraged the measure will be voted out of committee in the next couple of weeks.

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Sikeston woman fights to get mother out of a guardianship

Seniors Could Get Protections From Guardian Wrongdoing

TALLAHASSEE (NSF) – A bill aimed at better protecting elderly Floridians from unscrupulous guardians is speeding toward passage in the state Legislature.

The House on Tuesday took up the measure (SB 232), filed by Sen. Nancy Detert, R-Venice, and could give final approval as early as Wednesday. Senators this month voted unanimously to approve the measure, after a similar bill died during the chaotic end of the 2015 legislative session.

The proposal would lead to the Department of Elder Affairs certifying and overseeing professional guardians — and disciplining those who abuse their trust.

“In extreme cases, the wards are sometimes prevented from regaining their competency and remain, in effect, prisoners of guardians,” House sponsor Larry Ahern, R-Seminole, said.

Under the bill, the Statewide Public Guardianship Office at the Department of Elder Affairs would expand to become the Office of Public and Professional Guardians. It would establish standards for both public and private guardians, receive and investigate complaints and penalize guardians who breach the standards.

If approved by the House, the bill would go to Gov. Rick Scott for his signature. Detert said the bill would vault Florida into a leadership role nationally in protecting seniors from guardian abuse.

“We are hearing from everybody, and it’s a nationwide problem,” she said. “Florida had the strongest laws in the nation, and we have all of these abuses. All of the other states are even worse than us, and there is nowhere to turn. They are now calling Florida to ask for advice.”

Detert cited a December 2014 series by the Sarasota Herald-Tribune, which found that while Florida has an efficient system of identifying and caring for fragile elders, “tapping their assets is a growth business.” In 2003, there were 23 registered professional guardians on Florida. By 2014, the number had grown to more than 440 — an increase of more than 1,800 percent in 11 years.

Private professional guardians often serve wealthy people, whereas public guardians serve incapacitated people who don’t have anybody willing and able to serve as guardians. Currently, the state has a more heavily regulated system of oversight for the public guardians.

Private guardians typically enter the picture when the children of seniors have disputes.

Detert said private guardians can sell off their wards’ assets to pay themselves — even to fight the wards’ grown children in court.

“Your family appoints a guardian to give you a little bit of help, and that guardian has the power to take over your entire life, your health care, your finances,” she said. “These are not people who are living in nursing homes. These are people that are living in their own home.”

The problem came to Detert’s attention via a constituent, Julie London Ferguson, who had lost the right to make decisions for her mother, Marise London, to a guardian.

Ferguson said Detert told her, “That could happen to me.”

Detert advised Ferguson to go to the media, which she did. Marise London — an artist who had run a Sarasota gallery for 26 years — was among those featured in the Herald-Tribune series.

“All of Sarasota was backing Mom,” Ferguson said.

Now, as of Jan. 13, London is back in her home. Her daughter said she is recovering from the ordeal, happy to be with family and in her own home.

“I believe with all my heart that if it weren’t for Senator Detert, Mom would still be in a guardianship,” Ferguson said. “The wheels of justice grind slowly, but when these people are in their 80s, we don’t have that time.”

The News Service of Florida’s Margie Menzel contributed to this report.

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Seniors Could Get Protections From Guardian Wrongdoing

Guardianship bill gets unanimous support

The Florida Senate on Wednesday unanimously backed the expansion of the state’s regulation of guardians who care for frail elders, including allowing the state Department of Elderly Affairs to discipline private guardians who violate care standards.

At the same time, a similar measure cleared its final House committee, meaning the bill is now ready for a floor vote in the House.

“We all recognize there is a problem,” said Sen. Nancy Detert, R-Venice, who has called the bill (SB 232) her top priority for her final regular session in the Legislature.

The measure follows up on a law that Detert helped pass last year to curb abuses in the adult guardianship system, including regulations on public guardians, who are appointed to care for incapacitated seniors who are poor.

The new bills extend a series of regulations and state oversight to private guardians, who now must have a background screening and meet certain training requirements. It would include a system for investigating complaints and disciplining private guardians.

“It left a whole segment of the elderly open for abuse and they have been targeted, especially wealthy older women,” Detert said, adding it is a problem not only in Florida but across the nation.

She said Florida would have “the strongest laws” in the country if the bill becomes law as anticipated. “I know you will agree that protecting the elderly is one of our top priorities,” Detert said.

In a tribute to Detert, the 39 other senators agreed to become co-sponsors of the legislation as it heads to the House.

Earlier in the day, the House Judiciary Committee unanimously backed a bill (HB 403), sponsored by Rep. Larry Ahern, R-Seminole, that would expand the Department of Elderly Affairs (DOEA) power to monitor and regulate public guardians to include private guardians.

All the guardians would be required to register and would be regulated by the DOEA’s renamed Office of Public and Professional Guardians.

“Under this bill the office can investigate allegations of abuse and fraud and take disciplinary action when warranted,” Ahern said.

Ahern cited the press reports of abuses of elderly Floridians as one of the motivations for the legislation. The Herald-Tribune’s December 2014 series, “The Kindness of Strangers,” highlighted cases of frail seniors who had been taken advantage of by unregulated private guardians.

“We don’t want to read another story about someone who has been appointed by the courts and given complete autonomy over a person’s life and estate and uses that position to take advantage of the person they were entrusted to protect,” Ahern said.

The House committee also heard from Doug Franks, who has fought to remove his mother from a private guardianship in Pensacola.

“This bill is going to put some oversight on this where before we had no oversight on professional guardians,” Franks said, adding he wanted to eventually see stronger laws, including criminal penalties for guardians who abuse their trust.

Under the current law, Franks said it is difficult for family members to “get their parents back because once they’re in guardianship, professional guardianship, they can’t get out.”

“It’s not like foster care where you get a chance to get your children out. When they’re in guardianship, forget it,” Franks said.

The legislation has the support of the AARP and the Florida Conference of Catholic Bishops. Detert said the legislation also has the backing of Gov. Rick Scott and DOEA Secretary Samuel Verghese.

The bill provides $822,000 in funding for the DOEA’s expanded guardian office, which will include six full-time employees.

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Guardianship bill gets unanimous support

Escambia Senior Out $1 Million; Bill Seeks To Stop Predatory ‘Cockroaches’

Now 93, Ernestine Franks has lived in Escambia County all of her life. She and her late husband, Charles, both worked at the Pensacola Naval Air Station — she was in cost accounting and he was a metalsmith. They saved their money and invested it wisely and put their children through the best schools to ensure they would get the best education. Ernestine and Charles’ life was devoted to their boys and always went the extra mile for them.

Ernestine Franks

Douglas said he and his two brothers agreed to a guardian for Ernestine in 2011 because they lived out of town and her health was becoming more of a concern.

But that guardianship has cost his mother $1,000 per day since June 2012.

“It is over $1 million that my mom has spent,” her son Douglas Franks said. “We’re trying to bring awareness so people know what’s going on and how this is a lucrative cottage industry.”

Franks spoke in favor of a measure Thursday in Tallahassee as a Senate panel on Thursday unanimously approved a bill aimed at protecting Florida seniors from predatory “professional guardians,” described by one lawmaker as “cockroaches.”

The bill (SB 1226), filed by Sen. Nancy Detert, R-Venice, would expand the Statewide Public Guardianship Office at the Department of Elder Affairs, with an eye to tightening oversight of people who assume control of a senior citizens’ finances.

A recent series by the Sarasota Herald-Tribune found that while Florida has an efficient system of identifying and caring for fragile elders, “tapping their assets is a growth business.” In 2003, there were 23 registered professional guardians on Florida. Today, the number has grown to more than 440.

“Those little cracks in the law are allowing cockroaches to crawl through and take advantage of people who are elderly,” Detert told the Senate Children, Families and Elder Affairs Committee. “Let’s face it. The elderly are today’s invisible people, who are not given much credence when they complain.”

The bill would charge the Department of Elder Affairs with certifying, overseeing and —- if necessary — investigating and disciplining professional guardians who abuse their trust. It would also create a registry of professional guardians in each judicial circuit.

Currently, Detert said, the Department of Elder Affairs is responsible for public guardians, who are assigned to indigent seniors, but there is little to stop unscrupulous “professional guardians” from charging exorbitant rates for services they provide and running through their wards’ assets.

“When you are turning somebody’s entire life over to a guardian, they have access to every asset that you have, and your own family is blocked from participating,” Detert said.

Detert said the courts are so overwhelmed with foreclosures and other backlogged cases that they aren’t able to investigate guardianship expenditures that are unreasonably large.

Her proposal comes as several other lawmakers also are offering measures aimed at curbing abusive guardianships.

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Escambia Senior Out $1 Million; Bill Seeks To Stop Predatory ‘Cockroaches’

Guardianship bill needed

This should be top item on Ohio legislature’s new-year agenda

New court records and testimony accusing an Upper Arlington attorney of taking advantage of his court-appointed wards should galvanize the incoming General Assembly to finally pass clear protections for Ohio’s most-vulnerable residents.

A bill that would have accomplished this was left for dead by the lame-duck legislature earlier this month. The anti-abortion lobby seized on a ward’s “Bill of Rights,” whose provisions included a privacy-of-the body clause, as an opening for young girls to demand abortions. That’s a real stretch, given that the majority of Ohio’s 65,000 court-appointed wards are elderly, but the bill ran out of time to iron out the totally unexpected opposition.

House Bill 624 would have codified appropriate legal guidelines for guardians who are entrusted with making personal, financial and medical decisions in their ward’s best interests.

The crying need for this was demonstrated a week ago in a Franklin County probate courtroom, where two wards’ families accused attorney Paul S. Kormanik of looting their loved ones of valuable belongings, family heirlooms and cash.

They became suspicious after reading a Dispatch series, “Unguarded,” that detailed the lack of oversight of unscrupulous guardians by probate courts that are either negligent or complicit.

The newspaper detailed stories of wards stripped of everything: their freedom, homes, treasured belongings and dignity. Meanwhile, some attorney guardians siphoned accounts by charging high legal fees for ordinary work, or they hired their families and paid them from the wards’ accounts.

Among the worst, according to Franklin County Prosecutor Ron O’Brien, is Kormanik. At one time, he boasted his 400 wards probably made him the biggest guardian in the nation. Today, he faces two felony theft charges that could send him to prison for 4½ years.

Those criminal charges are unrelated to the probate court claims heard last week. If substantiated, O’Brien should pursue additional charges. Each and every victim deserves justice.

Likewise, the allegations raise concerns as to whether tax fraud was involved. Prosecutors should update the IRS, which has a talented pool of investigators who can root out financial misdeeds.

According to the probate-court testimony, more than $55,000 and valuable furnishings are unaccounted for from the Bexley home of a 91-year-old woman.

An elderly Galloway man’s home was missing at least 49 items, a daughter told the court. But one item did turn up: A riding mower is at the home of Kormanik’s paralegal, Julie Whisner. Her family has been using it for the past year. After initially refusing to return it, they’d agreed to — for a $120 delivery fee.

The family still hasn’t gotten the mower back.

Kormanik, who has since resigned or, in other cases, been removed from managing the affairs of his wards, invoked his Fifth Amendment privilege and declined to answer questions in court.

“This has been nothing but a nightmare,” said Linda Gomez, the daughter of the Bexley woman.
Ohio’s broken guardianship system demands repair. People are suffering.

State Rep. Dorothy Pelanda, R-Marysville, who co-wrote the guardianship bill with Sen. Shannon Jones, R-Springboro, vowed to reintroduce the bill with clearer requirements in the new session.
Lawmakers should take up this bill immediately and pass these protections.

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Guardianship bill needed

Bill would spell out wards’ legal rights in guardianship system

State representatives have drafted legislation to reform Ohio’s guardianship system, using problems exposed in a series of stories in T he Dispatch as a guide, Rep. Dorothy Pelanda said.

“This is about protecting the state’s most vulnerable people,” Pelanda said. “We want to hold those in charge of others responsible and ensure they know what’s expected of them.”

Pelanda, of Marysville, and state Sen. Shannon Jones, of Springboro, both Republicans, are behind House Bill 624, which calls for a ward’s bill of rights. The bill also would require probate courts to give guardians a handbook that specifies how to care for a ward, manage assets and talk with doctors.

A Dispatch investigation in May uncovered unscrupulous lawyers and selfish family members who are court-appointed guardians for people the probate judge has deemed to be incompetent to handle their own affairs. The series, available online at Dispatch.com/unguarded, showed how they are allowed to abuse the wards they are supposed to protect and to steal from them.

Each county probate court has its own rules on how to oversee guardianships. The Dispatch investigation found that there were no statewide standards and that many courts lacked necessary safeguards or ignored their own rules.

The bill proposes to codify 19 separate rights. First, a ward must be “treated with dignity and respect.” Other important rights for wards would force courts to implement changes:

• Wards would be given copies of all medical, financial and treatment records submitted to the court in their case so that they could review them. Nearly all courts surveyed last year by T he Dispatch did not send copies of those documents to wards.

• Wards would be allowed to speak privately with an attorney, ombudsman or other advocate upon request.

• Wards would be able to meet with an attorney and independent expert for evaluation and have the costs for those things paid by the court if the ward were indigent. Some courts do this, but many do not, the investigation found.

• Wards would be able to bring a grievance against their guardian, to ask the court to review a guardian’s actions and to request removal and replacement of a guardian. Wards also could ask a court to restore certain rights (to marry, vote, drive) if they could show they had regained the capacity to make some or all decisions.

Many courts have a process that allows a ward to file a request to remove a guardian. In some courts, such as Franklin County’s, evidence introduced by a ward or concerned family member about a guardian’s actions is put in the ward’s file with some variation of the label “non-evidence, correspondence only.”

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Bill would spell out wards’ legal rights in guardianship system

Guardianship reform advances after judges, victims share concerns

The Nebraska State Legislature will consider a plan to reform the state’s guardianship system.

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The bill (LB 920) advanced by the Judiciary Committee would budget around $1 million to create a new office of guardianship under the supervision of the state Supreme Court.

While Nebraska Governor Dave Heineman has yet to weigh in, there appears to be little resistance in the state Legislature to the idea of overhauling the system. Currently Nebraska is the only state in the nation that does not provide such a service for elderly, disabled or children unable to manage their own finances or make critical life choices. 

In most cases a family member or acquaintance will be appointed by a county court judge to assist. However, the pool of volunteers to help has nearly disappeared according to judges across the state, leaving them little choice but to appoint sometimes unwilling and in some cases unscrupulous guardians.

Sen. Colby Coash of Lincoln advocates a change in the system that currently relies on volunteers, whether they are family members or helpful community members.  “Beyond that the courts don’t have much of another option (when) there is no family member who is willing or able to step in,” Coash told NET News.

The bill sponsored by Coash would create an entirely new office employing 20 trained caseworkers available to be appointed as guardians when a court has no other option.  A review of current court cases by a state commission dealing with the issue estimated there are currently around 400 people in need of the service. 

Coash has been emphasizing Nebraska is the only state in the union that has no central office for guardianship.  “What my bill does is mirror what is done in 49 other states,” he said.

Recently Nebraska state senators on the Judiciary Committee took testimony from people with first-hand, and in some cases disturbing, experiences with guardians.

Judge Curtis Evans recently retired as a county court judge after more than 36 years on the bench.  Before retiring he became a driving force in reforming what he saw as a broken guardianship system. 

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Guardianship reform advances after judges, victims share concerns

See Also:
County Attorney Amends Charges in Guardianship Embezzling Case

See Also:
Nebraska State Auditor-Guardian Fleeced Wards

Lawmakers: Nebraskans who need guardians, conservators could benefit from public program

LINCOLN, Nebraska — Some of the state's most vulnerable people who can't make decisions on their own could soon be supported by a state guardian.

A bill creating an Office of the Public Guardian advanced from the first round on a unanimous vote on Feb. 21 as Nebraska edges toward ending its status as the only state without such an office.

Under current law, a county court can appoint a guardian or conservator to someone who is unable to make responsible decisions for themselves, due to reasons such as disability or mental illness. But in some cases there is no one willing or able to serve in this role.

A guardian is appointed to oversee life decisions, including health care and residence, while a conservator deals with money and property.

A bill introduced by Sen. Colby Coash, of Lincoln, would create an office with a director, deputy director and up to 12 associate public guardians. The office would serve in situations of last resort where there is no guardian or conservator.

There are some very vulnerable people who are at risk of being taken advantage of, Coash said, and these vulnerable people need someone to provide oversight.

The need is rising as baby boomers age and get to a point where more need the help of a guardian or conservator, said Sen. Steve Lathrop, of Omaha.

"You have a number of people who don't have the means or the family or anyone interested in them to serve in that capacity," Lathrop said.

Now, without a statewide guardian, county courts ask lawyers to volunteer to serve, Lathrop said.
"The need has exceeded the capacity of lawyers who volunteer," Lathrop said.

Joanne Farrell, a social worker at Aging Partners in Lincoln, which offers information and services to seniors, has seen the ways seniors can be taken advantage of.

Some may get scammed through an online dating website or by thinking they've won something, she said.

There has been a need for this program for a long time, she said.

"The communities like to take care of their own, but at this point we're seeing there is a need everywhere in the state," Farrell said.

An auditor's report last year on Department of Health and Human Services programs that help people who are aged, blind and disabled found that one person, Judith Widener, had served as a guardian, conservator, or both, for more than 600 people in the state.

Widener, of Bayard, has been charged with stealing more than $35,000 intended for court-appointed wards for her personal use. Earlier this month Widener pleaded not guilty to a felony theft charge, and she is currently out on bond.

That case is the biggest example of abuses and problems in the current system, Coash said.

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Lawmakers: Nebraskans who need guardians, conservators could benefit from public program

Jeff Brandes' Bill Would Help Keep Unscrupulous Guardians in Check

Sen. Jeff Brandes, R-St. Petersburg, came out swinging Tuesday, filing SB 634, legislation aimed at preventing the abuse of vulnerable Floridians by unscrupulous guardians.

It's a very big deal in his neighborhood.

Brandes is tuned in to bad-apple guardians. He is a member of the Select Committee on the Patient Protection and Affordable Care Act. More to the point, he is the senator for Pinellas Park, home of one of the most publicized Florida stories of suspected unscrupulousness by a guardian of elderly wards in recent times.
 

Though Brandes didn't mention the story by name, his bill comes on the heels of the ABC Action News investigation last fall of Pinellas Park City Council member Patricia Johnson. Johnson, who has more than 50 active guardianship cases, is paid $70 an hour each for the time she spends taking care of their business, and was observed by ABC's I-Team over a several-day period doing almost nothing on their behalf.

The investigators spent more than two weeks pulling hundreds of Johnson's bills from court files and entering them into a spreadsheet. They conducted interviews with family members and in assisted living facilities. They discovered that from Jan. 1, 2010 to Dec. 31, 2012, her invoices added up to $260,000. That gave her an average annual guardianship income of nearly $87,000 -- with little help to her wards to show for it.

 What's more, local judges routinely approve the sale of homes belonging to Johnson's wards  -- in most cases, the largest asset these wards have -- without obtaining appraisals from a certified appraiser.

And Johnson has used fellow Pinellas Park City Council member Richard Butler (who was her campaign manager) to conduct nearly all of the sales of her wards' homes since 2010. Many of the homes were flipped for sizable profit. Records show Butler has sold 14 of them for a total of $1,252,500.

Brandes' bill, while not a magic pill to fix the whole problem, would at least provide expanded auditing authority for clerks of court to review the practices of court-appointed guardians.

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Jeff Brandes' Bill Would Help Keep Unscrupulous Guardians in Check

Oregon public guardian, conservator program could be created by lawmakers

Sen. Michael Dembrow, D-Portland

Vulnerable, low-income Oregon adults could obtain a public guardian and conservator through a statewide program that lawmakers might create in February.

 

Oregonians who have developmental disabilities, dementia, chronic mental illnesses, or other serious illnesses or injuries would be eligible for the program, said Sen. Michael Dembrow, D-Portland, who plans to sponsor a bill to set up the program. The guardian and conservator would make personal and financial decisions on behalf of the at-risk client.

 

A similar bill in the 2013 session passed unanimously out of the House Human Services and Housing Committee but died in a budget committee because of a lack of funding. The program will likely pass in 2014 because of new money expected from changes lawmakers made to the state’s senior medical tax deduction, Dembrow said.

 

“There’s a growing number of vulnerable Oregonians who are at risk of falling through the cracks, of not having the appropriate living conditions or health care, and who really don’t have the means to hire a guardian or don’t have the family to do that,” Dembrow said. The program “is an idea whose time has come and whose need has become obvious.”

 

A state task force that studied the issue last year estimated that 1,575 to 3,175 Oregonians lack the public guardianship services they need. The need will grow as baby boomers age, advocates say.

The proposed program would create a new Office of the Public Guardian and Conservator within the Office of the Long-Term Care Ombudsman.

 

The public guardian, along with one deputy, would serve as the guardians for some Oregonians and would contract with counties, nonprofits and others to provide services for some clients, such as rural residents who live far from Salem, Dembrow said.

 

Estimates peg program costs to about $1.5 million each biennium, Dembrow said. Enrollment would need to be capped initially to serve the most needy Oregonians.

 

Oregon enacted a guardianship law in 1971 that allows counties to develop and fund public guardianship programs. Multnomah County is the only county in the state that offers a public guardian program. Jackson County started a pilot program but transferred it to a nonprofit.

 

Clackamas, Washington and Lane counties previously attempted to create public guardianship programs but were not successful.

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Oregon public guardian, conservator program could be created by lawmakers

Brown signs bill to protect rights of conservatees

SANTA CLARA COUNTY, Calif. (KGO) -- Gov. Brown signed a bill into law Monday protecting the rights of people under a conservatorship. That's when a judge appoints someone to handle the affairs of a person due to old age or physical limitations.
An ABC7 News I-Team investigation uncovered cases in which the Santa Clara County public guardian was restricting access to conservatees.

The law clarifies a conservatee's right to have visitors, phone calls, and personal mail.

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Brown signs bill to protect rights of conservatees