“A Real Overhaul Is Long Overdue”: Lawmaker Calls On State Leaders to Reform New York’s Beleaguered Guardianship System

A new bill asks Gov. Kathy Hochul and state legislators to overhaul New York’s broken guardianship system. It cites a ProPublica investigation that found the elderly and infirm living in dire conditions while under court-mandated oversight.

by Jake Pearson

The chair of the New York City Council’s Committee on Aging is calling on Gov. Kathy Hochul and legislative leaders to overhaul the state’s beleaguered guardianship system in response to a ProPublica investigation that found elderly and infirm New Yorkers living in dire conditions while under court-mandated oversight.

City Councilmember Crystal Hudson introduced a resolution last week intended to force Albany to take up the cause of those whom judges have deemed incapable of managing their own affairs — a constituency without powerful lobbyists or political influence whose needs have long been ignored by state legislators.

“Too many people have been failed by this system, and a real overhaul is long overdue,” said Hudson, a Democrat. “We need a system that instills confidence — one that guarantees people in need of guardianships a dignified existence.”

More than 28,000 people statewide are currently under the care of court-appointed guardians, and nearly 60% of them live in New York City.

Hudson’s bill, which calls for an annual infusion of state funding to serve poor New Yorkers in the system, will be the subject of public hearings later this fall.

The proposal cites a series of stories this year by ProPublica that revealed how thousands of residents who have no family or friends to look after them are ill-served by many of the nonprofits and private attorneys that judges appoint to oversee their well-being. In the guardianship industry, this group of wards is known as “the unbefriended.”

The news organization found that there are too few guardians available to serve the people who need them and even fewer overseers, called examiners, to review the guardians’ work. A dearth of court staff and judges has compounded the problem. ProPublica found that annual assessments of guardians’ care can take years to complete, and even then the court oversight mostly focuses on financial paperwork, with officials rarely visiting wards in person.

The lack of scrutiny and long delays can result in unchecked neglect, as well as financial exploitation of New York’s most vulnerable people. A woman featured in ProPublica’s reporting lived for years in a home that had no heat and was infested by bedbugs and rats — conditions her legally appointed guardian did not rectify and her examiner did not question. Another man’s guardian spent more than half of her ward’s life savings for care provided by her own private business — a flagrant conflict of interest that a judge permitted for years.

Hudson’s resolution would pressure state legislative leaders and the governor to bolster the system by allocating state money to pay for more guardians. The current system is largely unfunded. So judges often ask lawyers to take on cases pro bono or assign nonprofits, which take monthly fees directly from their wards’ accounts. For a small group of people in need, county social service departments pick up the tab, though judges say the groups they contract with to provide those services are overburdened and understaffed.

To fix the problem, the legislation suggests a plan developed by Guardianship Access New York, a coalition of nonprofit providers. It calls for a “significant and permanent statewide investment in nonprofit guardianship services” of $15 million annually. That’s similar to what happens in Florida, which publicly funds 16 nonprofits that serve thousands of eligible wards. In GANY’s proposal, the funding would go to vetted groups that would then serve 1,500 New Yorkers each year to “ensure access to an ethical, reliable, and effective guardian.”

Kimberly George, a leader of GANY who also runs Project Guardianship, a nonprofit group that serves as guardian to about 160 New York City wards, said in an interview that the proposal “wouldn’t fix the whole system, but it’s a big piece of it.”

“If judges have reliable good guardians to go to, maybe they won’t have to appoint ones that they know are questionable or aren’t sure about,” she said.

Judges, for example, have long relied on a guardianship company featured by ProPublica even as it failed to meet the needs of more than a dozen wards. In one case, it collected monthly fees from an elderly man even after he left the country — and also after he died. The group, which serves hundreds of poor New Yorkers, continues to receive appointments. The company has declined to answer questions about specific clients but previously told ProPublica that it was accountable to the court and that its work was scrutinized by examiners, who are empowered to raise any issues.

The city resolution comes as the state court system crafts its own guardianship proposals in advance of next year’s legislative session, which begins in January.

According to an internal proposal obtained by ProPublica, an advisory committee of judges and lawyers has recommended that the state’s top judicial leaders and court administrators ask Albany to create a “fully funded statewide entity” to serve as a public guardian. Such a government entity, the committee estimates, would cost $72 million to staff and would serve the “unbefriended” in each county — a population the proposal estimates represents about 20% of all wards statewide.

The committee also recommended that the courts seek to increase compensation for court examiners, as well as court evaluators, who assess the needs and capacities of people before a judge imposes guardianship. That money would come from funding that is now reserved for lawyers who represent the indigent in criminal cases, not from wards’ own funds.

A court spokesperson said the state’s top judicial leaders “have made clear to our partners in other branches of government that we support the creation of a statewide public guardianship program as a key component of an overhaul of the system.”

Spokesperson Al Baker added: “We are proud to be advocating for additional funding to cover the costs of guardianships, particularly to assist those who are the most economically constrained.”

State lawmakers last seriously addressed the court-appointed guardianship system 30 years ago, when they passed the state’s main guardianship statute, Article 81 of the Mental Hygiene Law. This year during budget negotiations, lawmakers secured just $1 million to fund a statewide helpline, despite a request to provide $5 million to combat some of the bigger problems detailed in ProPublica’s reporting. Spokespeople for the Senate majority leader, Andrea Stewart-Cousins, and Assembly speaker, Carl Heastie, didn’t respond to requests for comment on Hudson’s resolution.

Neither did the office of Hochul, whose support will be essential to any guardianship reform. The Democrat, who took office three years ago, has proposed a plan to confront the needs of the state’s aging population, which mentions guardianship, among other measures, though it spells out few details.

Advocates hope Hochul will be receptive to an overhaul, given her record on a related issue. In July 2022, she signed into law a bill that provides an alternative to guardianship for people with intellectual and developmental disabilities, permitting them, not a guardian, to make decisions about their own lives.

At the bill signing, according to a transcript, she acknowledged the power of government to better the circumstances of the vulnerable.

New York, she said, had “a well-intended Legislature and a governor who wanted to make sure if there’s any issue that comes to our attention where a wrong needs to be righted, we will take the pen and do just that. And that is what today is about.”

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“A Real Overhaul Is Long Overdue”: Lawmaker Calls On State Leaders to Reform New York’s Beleaguered Guardianship System

Lawmakers highlight abuse in guardian system amid bill re-introduction

By Colin Jackson

Senator Ruth Johnson

Michigan lawmakers are re-introducing bi-partisan legislation to provide more checks on the state’s court-appointed guardian and conservatorship system.

Package sponsors say the bills would tighten requirements placed on guardians ad litem. They would also further involve medical professionals in the process of determining whether an adult is considered “incapacitated.”

Supporters worry the law as it stands doesn’t do enough to prevent people from scamming the system and taking control of someone’s life.

Chandra Drayton and her sister, Olivia McDavid, spoke of their own experience with their mother’s guardian during a press conference in Southfield Tuesday.

Drayton said a stranger managed to become her mother’s guardian after her mother was admitted to a hospital for breathing troubles.

She said her mother stopped getting the care she needed after that point.

“They say, ‘Well, you know things happened, we’re sorry.' Sorry don't get it. But that changed her whole quality of life,” Drayton said.

She alleged once her mother started experiencing seizures, the guardian changed her directives to “do not resuscitate” at the hospital, against Drayton’s wishes.

Senator Ruth Johnson (R-Holly) said the current system leaves too much room for people to take advantage of older adults and their families.

“You don’t even get to go to the court sometimes and somebody deems you incapacitated, needing a guardian. By whose authority? Who’s the professional involved? Is it people that are going to be able to benefit financially from it? That’s a conflict of interest,” Johnson said during a press conference Tuesday.

Johnson said the bills, filed Thursday with the Secretary of the Senate, are mostly a re-introduction of legislation from last session that didn’t make it across the finish line.

A similar House package made it out of committee but never advanced out of the chamber. The Senate version died in committee.

Johnson said the issue is systemic and resistant to change without further regulation.

“There’s a lot of money in this for people who just don’t seem to care about others. We have a system that is broken,” Johnson said.

This year, she and the other co-sponsors hope for something different. In the House last time, they had the support of former Judiciary chair Graham Filler (R-DeWitt). Now they have Civil Rights, Judiciary, and Public Safety chair Stephanie Chang (D-Detroit) as a co-sponsor.

In addition to the re-introduced policies, Johnson’s office said there are two new bills. One would require video of public court proceedings to be made public. The other would ban anyone who has been removed as a public administrator by the Attorney General’s office from becoming a guardian ad litem or conservator.

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Lawmakers highlight abuse in guardian system amid bill re-introduction

Guardianship system reforms ‘a foot in the door’

Patricia Smith, second from left, waits to testify before the guardianship commission last year. The state Supreme Court appointed the commission. (Colleen Heild/Albuquerque Journal)

Patricia Smith’s father was dying of Alzheimer’s in 2007 when dementia took hold of her 87-year-old mother.

The older woman began driving on the wrong side of the road and was so paranoid she believed her daughter Patricia was exploiting her. And, an ex-convict on parole had ingratiated himself into her mother’s life.

Smith needed help, she said last year. “I realized I could not protect my mother. She wouldn’t let me.”

Like others who have aired their personal stories about the dysfunction of New Mexico’s guardianship system, Smith recounted for a Supreme Court commission in April 2017 how she finally went to court to obtain a professional legal guardian/conservator for her mother, only to discover the firm treated her mother as a “cash cow.”

“It behooved the whole interest of that company for the guardians to amp up their care to burn off my dad’s estate as fast as possible.”

They started charging $19,000 a month, Smith told the commission looking into guardianship reform, but wouldn’t pay for her mother to get a replacement for her inch-thin coat. It took eight months and $20,000 in legal fees before Smith and her sister could “disengage” her mother from the corporate guardian firm and recruit a separate guardian and conservator, with whom they had no complaints.

Heeding calls from family members like Smith, district courts in New Mexico come July 1 will operate under a new openness and greater accountability mandated by a new guardianship/conservatorship law approved by the Legislature earlier this year.

The state Supreme Court took the reforms a step further last week by requiring enhanced financial and background information from those who are legally appointed by judges to manage the affairs of the incapacitated.

For the first time, under the new Supreme Court rules and reporting forms, court-appointed guardians and conservators will have to regularly report the fees they charge the incapacitated person’s estate and, in the case of conservators, how the fees were calculated.

They must also provide specific bank account information about the incapacitated person, including bank account balances, in a format that will permit an auditor to detect misappropriation or mismanagement of funds. To that end, a pilot project involving the State Auditor’s Office is in the works, said state District Judge Shannon Bacon of Albuquerque, who has spearheaded the reform effort for the judiciary.

In another new disclosure, guardians and conservators must annually advise the court on their own status – if they had declared bankruptcy, been arrested or investigated by state Adult Protective Services, for instance. None of the annual reports filed with the court will be available to the public.

New law

Whether the new measures will fix New Mexico’s troubled guardianship system is unclear, Smith told the Journal last week. “But it’s a foot in the door,” said Smith, who has spent the last year contacting public officials, including Gov. Susana Martinez, to press for change.

In testifying before the now-disbanded commission last year, Smith cited the inadequate reporting forms required of guardians and conservators. Smith, a retired respiratory therapist, also advocated more openness in the system.

“We could really get more accountability and sunlight into the system so it wouldn’t be such a setup for abuse and exploitation of our elders,” she told the commission appointed by the Supreme Court.

In fact, the new law passed unanimously by the Legislature this year will require that hearings in such cases be open to the public, although filings will remain confidential unless a judge authorizes disclosure.

Two other changes give family members greater visitation rights and expand notification to relatives of court proceedings for an incapacitated loved one.

Not all critics are satisfied. Lorraine Mendiola, whose adult son has a professional guardian, told the Journal last week, “There’s no state agency for family members to voice their concerns if a corporate guardian is negligent or committing criminal actions.”

She said she has had no luck approaching the judge on her son’s case with her grievances.

As for the enhanced reporting, Mendiola said, “Who is going to provide accountability to make sure that the correct information (on the new forms) is reported?”

The new law requires professional conservators to post bonds upon appointment, but Mendiola questioned why the cost will be borne by the incapacitated person instead of the conservator.

Gaelle McConnell, an Albuquerque attorney who headed the Supreme Court committee that proposed the eight new forms and five new guardianship/conservatorship rules, told the Journal the bond “protects the (incapacitated) person” so it makes sense to deduct the surety fee from the assets, rather than charge the conservator. She noted that a judge can make an alternative asset protection arrangement under the new law or decide a bond isn’t necessary.

New forms

The new reporting forms are 12 pages long for guardians, and 15 pages for conservators – compared to the current forms that ask 17 questions of guardians and a mere 10 questions of conservators every year.

Bacon told the Journal the changes “will make it easier for judges to get a handle on the details (of a continuing guardianship or conservatorship).” In her Albuquerque court, she schedules a hearing if she has questions or sees discrepancies in reports filed by a guardians or conservator.

“Not all judges ask those questions,” Bacon conceded. “This (new reporting mandate) forces the information to be put in front of them.”

She said the state Auditor’s Office helped design the questions asked of conservators “to make sure we have a picture of assets and liabilities and to inform the judge and to be useful to an auditor. We wanted to be very careful that it (the disclosure) works if somebody audits the case.”

Meanwhile, district judges around the state have undergone training about the new law and rules.

McConnell also served on last year’s Supreme Court commission that spent nine months studying the issue before issuing its own recommendations.

“Frankly, from hearing the public testimony, it was clear to me that something had to happen,” McConnell said.

The Supreme Court rules committee, appointed earlier this year, isn’t finished with its work, McConnell said. Her group will explore issues the guardianship commission last year recommended for further study – such as certification of guardians, and improving the court appointment process for guardians ad litem and court visitors. By law, those two professionals advise the judge on whether a guardianship is needed and whether the guardian proposed is appropriate.

But the process has been criticized as lacking objectivity, because judges typically appoint whomever is nominated by the attorney seeking the guardianship or conservatorship.

Smith, whose mother died in 2012, said dealing with an incapacitated loved one is “always inherently painful but it’s necessary and it’s going to become more necessary as baby boomers come down the pike.”

“More of us are going to be facing it – either for ourselves or our loved ones.”

 More information
The new forms and information about guardianship system changes are available on the Judiciary’s website at: adultguardianship.nmcourts.gov.

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Guardianship system reforms ‘a foot in the door’

Nevada high court panel calls for guardianship system reforms

By COLTON LOCHHEAD
LAS VEGAS REVIEW-JOURNAL

A Nevada Supreme Court commission on Thursday called for sweeping reforms of the state’s guardianship system in hopes of better protecting the state’s growing elderly and infirm population.

The 236-page report comes as a culmination of 15 months’ worth of commission meetings dating back to June 2015 and includes dozens of recommendations for changes in guardianship law, policy and court rules.

The 27-member commission was formed after a Review-Journal series highlighting the flaws and lack of oversight of the guardianship system in Clark County that watches over thousands of at-risk adults, called wards, who suffer from mental or physical incapacities.

Most notably, the report calls for all people under guardianship to have the right to an attorney, which is not currently granted in Nevada.

“I think that was a fundamental thing that was missing and could have avoided so many of the problems seen in the courts,” commission member and Assemblyman Mike Sprinkle, D-Sparks, said Thursday.

The commission was originally slated to be in place for just six months. But after several meetings that included heated and emotional speeches by victims of exploitation and their families, the commission extended its length of operation to more than a year and met 15 times. After seeing how deep the issues ran in the system, members voted to make the commission permanent.

“Some of the cases were just horrible to read, and there’s no doubt that many of these recommendations, if enacted by the Legislature, will stop some of those abuses,” said Barbara Buckley, executive director of the Legal Aid Center of Southern Nevada, a nonprofit law firm that began handling guardianship cases earlier this year.

Buckley echoed Sprinkle’s thoughts that providing legal representation is the most impactful change recommended by the commission.

“Individuals in this situation are being stripped of their civil liberties, the right to run their life as they see fit, without anyone speaking to them or advocating on their behalf,” Buckley said.

Having an attorney from the outset of a case will prevent much of the abuse seen, including the loss of civil liberties and the financial exploitation seen in several cases, she added.

Other notable recommended law and policy changes include:

■ Providing independent investigators and accountants to help detect and prevent fraud and abuse in guardianship cases.
■ Reining in the fees charged by private guardians, who can charge upward of $250 per hour to wards, even for tasks such as making phone calls and sending emails.
■ Prohibiting guardians from selling a ward’s assets — such as their house or car — without prior court approval from a judge.
■ Implementing a guardianship Bill of Rights for wards.

In total, the report calls for 16 changes to state law and 14 statewide changes for guardianship court rules. The proposed law changes would need to be drafted into bills and approved by the Legislature in 2017.

For Buckley, the recommendations are a giant leap in helping those who can’t help themselves.

“It will put the focus back on where it should have always been: on the protection of the individual,” Buckley said.

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Nevada high court panel calls for guardianship system reforms

READ the final report