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. 

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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

Johnson: Guarding The Guardians

Guarding the Guardians: The Challenge of Protecting the Incapacitated New Mexico’s Guardianship System provides the statutory framework for guardianship and care to be provided to incapacitated adults deemed to not possess the mental ability to care for themselves and their assets any longer.

Due to the expense of Guardianship proceedings these adults must have sufficient financial resources in order to afford the court proceedings necessary for the appointment of a guardian. They also must have no other form of intervention, such as a power of attorney or designated decision maker (usually a trustee), set in place.

When one is declared incompetent they become a ward and are appointed a guardian who then acts as their surrogate decision-maker concerning their place of residence and health care decisions. A visitor (generally a social worker who reports to the court on the person’s situation) and a guardian ad litem (an attorney who represents the alleged incompetent person and reports what their best interests are to the court) are appointed by a judge to act only for the alleged incompetent person.

A conservator, who makes decisions about and deals with their financial matters, also is usually appointed by the court. The powers of these appointees can be limited by the court depending on the alleged incompetent person’s capabilities and needs. The Guardianship procedure is statutory, and is the only method available under New Mexico law for appointment of a guardian or conservator. Those who most commonly qualify for appointment of a guardian or conservator include adults with a significant brain trauma injury, developmental disability, behavioral health disorder, Alzheimer’s, dementia, or other conditions that produce similar effects.

In these situations when the person is unable to make or communicate their decisions, a Guardian is appointed by the courts. In cases of mental illness, a trained Mental Health Treatment Guardian is appointed.

In cases where there are significant conflicted family disputes, or when there is no family to step in for the incapacitated person, the Guardianship System is a viable option that provides care, decision making, and legal services through contracts with attorneys, guardians ad litem, and court visitors. The System does not come without its drawbacks and risks, however.

Across the nation, and particularly in New Mexico, there have been cases of fraud in Guardianship proceedings. Some families have come forward claiming that their family member has been wrongfully entered into guardian or conservatorship proceedings against their will, and both the member and their assets have been significantly mismanaged. While there does seem to be a rise in such cases of fraud, it has not yet become a major issue in Los Alamos. So far, Los Alamos has only dealt with two or three cases of alleged abuse in attempts to have a guardian or conservator appointed in court.

A Los Alamos Police Department Officer commented that he feels fraudulent cases are not as big of an issue in Los Alamos. He said, “Los Alamos County is unique, in that most of the elderly have been able to either have a solid base of money or that someone in their family does.

We, as a county, take pride in being a county that has the education that we do, so that helps in regards to people being very careful in picking either a guardian or an assisted living situation.

The addition to that is that there are only three places in Los Alamos County that are assisted living. I believe that helps keep the people honest, as it is a small community.”

While our small community may not have major problems with the Guardianship System, the potential for finding oneself in an undesirable situation certainly exists. The best way to avoid any such situation is by remaining informed and prepared.

Many of the reported problems with the guardianship system stem from neglect or purposeful fraud by appointed guardians and conservators; including fraudulent billing, exploitation, moving the ward to different, unnecessary living arrangements and selling their property and assets, unnecessary charging of expenses, and false filings and records. This generally arises when someone other than a family member is appointed as a guardian; however, it is not unheard of among family members as well.

An article about cases of guardianship mismanagement was published in the Albuquerque Journal in November 2016. “Who guards the guardians: A Series by Diane Dimond,” is a five-part series highlighting the risks and caveats of the Guardianship System. The article contains cases of several Albuquerqueans who felt they were taken advantage of in the Guardianship System. In one such case Albuquerque native Mary Darnell was serving as her mother’s caretaker when Darnell’s sister filed a petition requesting the courts to declare their mother as incapacitated and appoint outsiders to manage her affairs. The petition was granted.

Darnell’s mother was entered as a “ward of the state,” appointed a guardian, her civil rights were removed, and she was referred to as “an adult incapacitated person” without even appearing before the Court. Darnell and her other siblings, who had not initiated the proceeding, felt helpless in the case and found themselves separated and isolated from their mother.

Over the next few years, Darnell found her mother’s estate being sold off, drained of its assets, and mismanaged. By the time her mother died seven years later, her estate, which had an estimated value of $5 million when the court first took possession of it, had dwindled to less than $750,000. In addition, the 17-acre estate had been divided and sold off without the children’s consent by the appointed conservator. More cases, as well as an in-depth look and analysis into the Guardianship System, can be read in the full series – found at:
https://www.abqjournal.com/898385/who-guards-the-guardians-a-5-part-series-by-diane-dimond.html.

Common complaints concerning the New Mexico Guardianship System cite the fact that New Mexico’s poor financial situation and consequent lack of funding are the reasons that there are no in depth audits or reviews of the performance of the conservator of the ward’s assets.

Many who are involved in the Guardianship System feel that there is no accountability between the judges who oversee the cases and the guardians who are supposed to report to them.

When asked what he felt the key to raising accountability between guardians and judges was, a Los Alamos Police Department Officer stated, “The largest obstacle that is in the way of the judges is poorly written and undefined legislation. Not only that, but with the state being overall a poor state, many of the people within the state cannot afford to have their attorneys work all the way up to the Supreme Court where case law could set precedent for future problems.”

Currently, in Albuquerque there are ten judges that handle guardianship cases, eight of whom handle a load of more than 1,000 cases each. While this has led many to feel that this reduces accountability between judges and guardians because the size of their caseload prevents in-depth attention, this is not yet as much of an issue in Los Alamos. As a result of guardianship cases being handled at the District Court level, there are three judges in the First Judicial District in Santa Fe that handle these cases.

Because the Guardianship System comes with inherent risks of fraud, there are several measures that should be taken to minimize the risks. The first is for persons to be very careful when selecting their future designated decision maker, and use Guardianship as a last resort.

Guardianship removes many rights of an alleged incompetent person; including the right to manage money, vote, marry, sign contracts, determine medical care, and monitor domestic visitors. In addition, the alleged incompetent person does not have the power to choose their guardian in court proceedings. In the event that an alleged incompetent person has not selected anyone to manage their estate through a Power of Attorney or trust prior to being declared incapacitated, they can be entered into the Guardianship System if deemed necessary, and the courts appoint the guardian and or conservator.

One way to avoid the risks that come with the Guardianship System is for a person to utilize written Powers of Attorney for health care and financial issues, and to choose wisely when deciding upon their designated Attorney-in-Fact (A Power of Attorney is a legal document in which a person can authorize a surrogate – known as an Attorney-in-Fact – to act for them).

An intervivos or living trust is another way to avoid the expense of court initiated by guardian or conservatorship proceedings.

An Attorney-in-Fact is designated and appointed before a person becomes incapacitated. Often, a person will appoint a springing power of attorney, in which they can specify that the Attorney-in-Fact will only come, or “spring”, into effect when two separate doctors have diagnosed them as unable to care for themselves and manage their assets. Some choose to have their Attorney-in-Fact come into effect immediately upon signing, while they are still capable of managing themselves, but wish someone else to have the power to act immediately.

By appointing an Attorney-in-Fact, persons have control over who will manage their affairs, and it is a much surer option that is associated with less risks. Even when appointing an Attorney-in-Fact one must be extremely careful. There remains the potential risk for the designee to mismanage the person’s assets and health. An additional measure that can be taken to combat this risk is to appoint multiple Attorneys-in-Fact. There are several ways to do this. The first is to appoint each Attorney-in-Fact with independent authority.

This results in them having the responsibility to manage any task that is authorized by the Power of Attorney document. In this case, they do not need to consult the other before making a decision; as their responsibilities are separate. The other, perhaps safest way, is to appoint more than one Attorney-in-Fact and stipulate that they must reach an agreement before making any decisions concerning the person’s assets or health.

A Power of Attorney can be revoked at any time before the person becomes incapacitated. After the person becomes incapacitated, however, the legal battle to revoke a Power of Attorney becomes more difficult.

Another way to avoid the risks of court initiated by guardian or conservatorship proceedings is for a person to create a living trust before becoming incapacitated.

If they choose to do so, they usually name themselves as trustee, but name a family member, friend, or trust company as their successor trustee. A successor trustee manages their financial affairs should they become incapacitated. This eliminates the need for conservatorship court action. In order to eliminate the necessity of guardianship court action, however, a Power of Attorney for Health Care (Advanced Health Care Directive) is still necessary.

As a result of the considerable loss of civil rights when entering into, and the inherent risks involved, the Guardianship System should be considered only after these alternative options are shown not to exist for the individual. If one finds themselves in an undesirable Guardianship situation however, their recourse may be limited. The Guardianship System requires intense secrecy and privacy concerning the cases, thus making it hard for family members to obtain information and be involved in the alleged incompetent person’s life.

Despite this, there is still action that can be taken. A Los Alamos Police Department Officer advised, “A report to law enforcement could mean that police are able to determine that there is a criminal aspect to the situation, which would then be able to remove the elderly from the poor situation.”

In addition to this, if one has a grievance against the Guardianship System, their complaints can be filed by sending a written complaint into the Secretary of Human Services Department and the Manager of Guardianship System at 625 Silver Av. SW, Albuquerque, NM 87102.

As with most legal systems, New Mexico’s Guardianship System possesses both virtues and flaws. In order to navigate these issues, one should be educated about the system and explore their options carefully before committing to any such surrogate program; Guardianship or otherwise.

Full Article & Source:
Johnson: Guarding The Guardians

End-of-Life Decisions for Incapacitated Adults: Caught Between a Conflict of Laws

Jennifer Cona

The common law principle is well-settled that every individual of sound mind and adult years has a right to determine what should be done with his or her own body. The right to accept or reject medical treatment has long been recognized for competent adults. However, for individuals who lack capacity, this right was not always recognized, often times forcing individuals to be subjected to treatments that went against their beliefs and desires. Unfortunately, the imposition of unwanted medical treatment still happens today in the context of incapacitated patients who reside in hospitals and nursing homes due to an apparent conflict between limitations placed on the powers of a guardian in some court jurisdictions versus the standards set forth under the Family Health Care Decisions Act.

Signed into law in 2010, the Family Health Care Decisions Act (FHCDA) (N.Y. PUB. HEALTH LAW §2994-d) reflected a major departure regarding the standard under which life sustaining treatment may be terminated for a mentally incompetent person. The FHCDA flipped the switch from the prior "presumption of life" to a "presumption of termination" (absent indication from the principal to the contrary), and did so especially in the context of artificial nutrition and hydration. See In re Zornow, 919 N.Y.S.2d 273, 31 Misc.3d 450 (Sup. Ct. Monroe Cty. 2010).

Intending to fill a gap in New York law by establishing a decision-making process applicable for patients lacking decision-making capacity in hospitals and nursing homes who do not have advance directives, the FHCDA allows surrogate decisions regarding the withdrawal or withholding of life-sustaining treatment based on a best interests standard, subject to the medical standards set forth in the statute. See N.Y. PUB. HEALTH Law §2994-d(4); see also In re Doe, 37 N.Y.S.3d 401, 53 Misc.3d 829 (Sup. Ct. Kings Cty. 2016). Guardians pursuant to Article 81 of New York's Mental Hygiene Law are given the highest priority to act as a surrogate decision maker, followed by a priority order of family members and other persons close to the patient.

In enacting the guardianship statutes codified in Article 81 of the Mental Hygiene Law in the early nineties, the legislature found that the personal wishes, preferences and desires of the person should be followed when making determinations on behalf of individuals with incapacities. Historically, decisions to withdraw life-sustaining treatment made by court-appointed guardians have been held to the clear and convincing standard. However, this standard is at odds with the legal and medical framework set forth in the FHCDA, which has become problematic in various circumstances.

Two Standards

The authority of a guardian of the Person under Article 81 of the Mental Hygiene Law extends well beyond the authority to make medical decisions as granted by the FHCDA. As such, the appointment of a guardian is often warranted to ensure the complete protection of an incapacitated individual's interests. The courts generally favor the appointment of a family member as guardian, particularly with regard to personal needs. See, e.g., In re Naquan S., 767 N.Y.S.2d. 906 (N.Y. App. Div. 2003). As guardian, a family member is in the first position of possible surrogate appointees under the FHCDA. Although one would suppose that holding the top priority as the surrogate decision-maker would expand one's powers, in some counties within the state, it has actually limited a family member's ability to make health care decisions, in particular decisions with regard to life sustaining treatment.

In practice, the FHCDA has been interpreted differently across the counties throughout the state regarding end-of-life decisions. As the FHCDA states that a guardian is authorized to make decisions regarding health care pursuant to Article 81 of the Mental Hygiene Law, some court jurisdictions have interpreted this to mean that such decisions must comply with the standards expressed under Article 81, therefore holding guardians to the common law "clear and convincing" standard while other counties apply the statutory, less restrictive "best interests" and medical standards set forth in the FHCDA. See N.Y. PUB. HEALTH LAW §2994-d(1)(a).

With the passage of the FHCDA, §81.29 of the Mental Hygiene Law was repealed and the "personal needs" provisions in §81.22 was amended. See FHCDA, A. 7729-D, 2009-2010 Leg., Reg. Sess. (N.Y. 2009); N.Y. MENTAL HYG. LAW §§81.22, 81.29. Pursuant to amended section 81.22, for decisions in hospitals and residential health care facilities, the court may grant to the guardian the power to act as the patient's surrogate pursuant and subject to the FHCDA. Based on the inclusion of the changes to the guardianship statutes with the passage of the FHCDA, it would appear that the "clear and convincing" standard no longer applies to personal needs decisions.

However, present day experiences with guardianship courts across the state of New York reveal that the counties are interpreting these rules in different ways. Some counties, for example, include a limitation on decisions regarding the withholding of life-sustaining measures. For example, the language included in one such county's guardianship order states that the guardian may "consent to or refuse generally accepted routine or major medical or dental treatment on behalf of [the incapacitated person], except for the power to consent or authorize, in the absence of further order of the Court, withholding or withdrawal of life sustaining treatment or to the implementation of either a Do-Not-Resuscitate or Do-Not-Intubate Order." Arguably, this goes against the FHCDA, which states that there is a presumption in favor of termination unless there is evidence to the contrary.

Case Study

Consider this fact pattern: Mrs. Crake's husband was named the guardian of her personal needs and property management. However, the court limited Mr. Crake's powers regarding the withholding of life-sustaining treatment, requiring further Court order in such event. Mrs. Crake was a woman in her sixties diagnosed with early onset Alzheimer's disease who exhibited end-stage dementia. Mrs. Crake required increased levels of residential care as her condition was quickly deteriorating and she required frequent hospitalizations. Mr. Crake, as Mrs. Crake's husband and personal needs guardian, was asked by both hospital staff and nursing home staff to complete a MOLST (Medical Orders for Life Sustaining Treatment) form on her behalf in the event of an emergency. However, Mr. Crake did not have authority to execute a MOLST because of the provision in the guardianship order limiting his decision-making authority regarding the withholding or withdrawal of life-sustaining treatment. In contrast, had Mr. Crake not been appointed guardian for his wife, as her husband and the second surrogate decision-maker under the FHCDA, he would have had unquestioned authority to execute the MOLST form on her behalf. Although Mr. Crake sought the guardianship to have the authority to assist his incapacitated wife in matters that exceeded her medical needs, the guardianship order actually limited his powers in regard to medical decisions. As a result, Mrs. Crake was intubated and subject to care that her family believes she would have rejected based on her condition, even though all of Mrs. Crake's family members were in agreement with Mr. Crake that their wife/mother/sister would not want life-sustaining measures to be undertaken.

This situation is exactly what the legislature set out to prevent with the enactment of the FHCDA. The legislature recognized that these personal decisions are best left to the families of incapacitated individuals. According to the legislature, the trial court "must protect itself from inappropriate involvement in a life-sustaining medical treatment case and should decline jurisdiction if there is no justifiable controversy." See FHCDA, A. 7729-D, 2009-2010 Leg., Reg. Sess. (N.Y. 2009) (citing Memorandum in Support of Legislation).

Even though Article 81 of the Mental Hygiene Law specifies that personal needs decisions are subject to the standards of the FHCDA, Mrs. Crake's case makes evident the conflict of laws. The legislature intended that the provisions of the FHCDA provide "responsible policies" for medical decisions for incompetent individuals as well as a process to review cases and resolve disputes within health care facilities, thereby eliminating the reliance on the courts except in situations of last resort. The Department of Health issued regulations that would further ensure that the standards of the FHCDA are followed in health care facilities such as nursing homes. Furthermore, the MOLST form was updated in June 2010 to align with the standards of the FHCDA and, therefore, the standards for a health care surrogate to complete a MOLST form are the same standards set forth in the FHCDA. As such, based on the provision of the FHCDA that subjects personal needs decisions made by guardians to the FHCDA, it is clear that the FHCDA has provided the necessary safeguards and procedures to ensure that decisions regarding life sustaining treatment are properly made at health care facilities without the intervention of the courts.

Although the statute purports to make the requirements clear, the misapplication of the clear and convincing standard with the best interests and medical standards of the FHCDA by some courts across the state evidences the fact that New York courts need further guidance on this issue. It is necessary that the legislature make clear the correct standard to be applied in the circumstances where an Article 81 guardian makes a decision regarding life-sustaining treatment.

As evidenced by the enactment of statutes such as the Family Health Care Decisions Act and the guardianship statutes, New York has taken extensive measures to ensure that individuals' wishes are appropriately carried out when they are no longer able to make decisions on their own behalf. To ensure that incapacitated individuals are extended the protections that the legislature recognized were necessary, it is essential that the courts be provided further guidance to ensure these standards are uniformly applied across the state.

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End-of-Life Decisions for Incapacitated Adults: Caught Between a Conflict of Laws