Pennsylvania's New Guardianship Law: Strengthening Protections, Diminishing Elder Abuse, And Shaping The Future Of Guardianship Work

In 2008, Britney Spears was appointed two legal guardians: her father, Jamie Spears, and attorney Andre Wallet. The conservatorship was allegedly born out of Spears’ public deterioration, which included the assault of a paparazzo’s car with an umbrella, inpatient rehabilitation, psychiatric hospitalizations, and the loss of custody of her children. Thirteen years later, and following years of suspected and alleged abuse perpetrated by her father under the guise of guardianship, the viral #FreeBritney movement achieved its goal. In November of 2021, Britney Spears’ conservatorship was officially terminated.

High profile cases like Spears’ have pushed guardianship matters — and the potential for abuse of guardianship arrangements — to the forefront. States like New Jersey, New Mexico, Oregon, and California changed their legal guardianship laws, aiming to reduce the number of people under these arrangements, while simultaneously increasing protection.

Pennsylvania, too, has a new guardianship law that fortifies protections for vulnerable individuals. On December 14, 2023, Governor Josh Shapiro signed into law Act 61 of 2023, sponsored by Senators Lisa Baker (R-20) and Art Haywood (D-4). Act 61 will become effective in June 2024. The law amends Title 20 Decedents, Estates and Fiduciaries of the Pennsylvania Consolidated Statutes, and  includes three main provisions: (1) requiring the appointment of counsel for alleged incapacitated individuals subject to a guardianship petition; (2) mandating the certification of professional guardians; and (3) requiring that petitions for guardianships show there are no alternative, less restrictive options for alleged incapacitated individuals besides guardianship. The law also includes measures to prevent long-term guardianship for individuals if their circumstances change.

Guardianship appointments are designed to serve crucial purposes, including assistance to incapacitated individuals in making financial, health, and personal decisions. A plenary guardianship enables the guardian to make all decisions for the incapacitated individual. There are currently over 19,000 active guardianships in Pennsylvania managing over $1.6 billion in assets. Most of these guardianships are plenary. However, an unsettling trend has emerged in the Commonwealth: a rise in the number of guardianships being implemented and an increase in the incidence of abuse and exploitation associated within these arrangements. This guardianship legislation aims to curb this trend.

Before Act 61 of 2023, the guardianship law in Pennsylvania provided alleged incapacitated individuals “the right ... to have counsel appointed if the court deems it appropriate,” but failed to define an appropriate case. Pennsylvania has been one of a few states that has not mandated the appointment of counsel in guardianship proceedings. Now, and regardless of the ability to pay, the court “shall appoint counsel to present the alleged incapacitated person in any matter for which counsel has not been retained by the alleged incapacitated person ....” The new law ensures that alleged incapacitated individuals have zealous advocates by their side throughout the legal process. This provision explicitly distinguishes appointed counsel from a guardian ad litem, whose role focuses on determining the best interests of the individual. Rule 1.14 of the Pennsylvania Rule of Professional Conduct (“Client with Diminished Capacity”) reinforces this distinction, emphasizing that the attorney should maintain a “normal client-lawyer relationship” with an alleged incapacitated individual. The Act’s clarification on this point underscores the importance of providing independent legal representation to safeguard individuals’ rights and autonomy, rather than merely promoting the “best interests” of alleged incapacitated persons.

The mandatory appointment of counsel and the emphasis on less restrictive alternatives will make guardianship proceedings more complex. These measures will lead to the involvement of additional attorneys. Furthermore, guardianship matters are likely to undergo closer scrutiny by judges, potentially leading to an increased number of witnesses being called during hearings. As a result, petitioners may experience more resource-intensive and costly proceedings.

The new guardianship law in Pennsylvania marks a significant milestone in protecting the rights and interests of individuals facing guardianship petitions. The mandatory appointment of counsel ensures that alleged incapacitated individuals have dedicated legal advocates, separate from the role of a guardian ad litem. While this new provision strengthens the guardianship process to ensure that alleged incapacitated persons are protected, it also has introduced a complexity and need for experienced counsel.

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Pennsylvania's New Guardianship Law: Strengthening Protections, Diminishing Elder Abuse, And Shaping The Future Of Guardianship Work

New guardianship law offers more protections

By Colleen Heild

As New Mexico enacted adult guardianship reforms aimed at transparency and accountability last summer, the owner of an Albuquerque fiduciary company allegedly began skimming money from the very people the new law was supposed to protect.

But the new guardianship law that took effect last July 1 actually helped uncover the alleged embezzlement scheme and enabled the courts to alert the state Attorney General’s Office, which launched an investigation of Guardian Angels Representative Payee Services, said state Supreme Court Justice Shannon Bacon.

A state grand jury indicted the company’s CEO, Pamela Crumpler, on criminal charges last month.

Before last year’s reforms, “If I saw a problem, there was no path (in the law) that would really allow me to report that to law enforcement,” said Bacon, a former state district judge in Albuquerque.

Now the system is “no longer so sequestered that judges can’t report problems to law enforcement.” she said in a recent interview. “Now it’s a much easier path.”

Less than a year old, the new guardianship law is having “great effect,” Bacon told legislators recently.

On Wednesday, Gov. Michelle Lujan Grisham signed Senate Bill 395 to further bolster the reforms.

During a news conference Friday at the Roundhouse, Lujan Grisham said, “I wish we’d done a little more on guardianships.”

But SB 395 contains many reforms, including requiring certification and training of professional guardians and conservators and setting up of a standardized grievance process for complaints about the treatment or welfare of incapacitated people living under court-imposed guardianship or conservatorship.

The new measures were recommended by a steering committee of legislators, judges and the executive branch.

“This is the next logical step in the guardianship and conservatorship reform statewide,” Bacon said.

The judiciary still can’t say how many incapacitated people, who need someone to manage their affairs, are currently under guardianship or conservatorship. District courts around the state are still sifting through their case files to weed out those in which the protected person has died, moved or no longer needs court protection.

Also working under the legislation passed last year, the State Auditor’s Office is examining annual reports that guardians and conservators file with the courts on the status of a protected person, and few red flags have pointed to exploitation or mismanagement, Bacon said.

But there has been “underreporting of income and then there have been problems with how folks have been reporting,” Bacon said.

Beginning with an investigative report in late 2016, the Journal has detailed how weaknesses in the state’s adult guardianship/conservatorship system have left vulnerable, incapacitated people open to abuse and exploitation.

The push for reform was further fueled by the federal indictment in the summer of 2017 of the two principals of a large Albuquerque guardianship and fiduciary firm, Ayudando Guardians.

That same summer, the CEO of an Albuquerque conservatorship and financial firm, Desert State Life Management, was discovered to have embezzled more than $4 million from vulnerable clients. Both firms closed.

Desert State CEO Paul Donisthorpe is serving a 12-year prison sentence, and the Ayudando defendants are set for trial later this year on charges of bilking about $4 million – mostly from military veterans who were clients.

At a March 12 hearing on the latest reform initiative, House Judiciary Committee Chairwoman Rep. Gail Chasey, D-Albuquerque, asked Bacon, “Do you have provisions now where you believe you can prevent the abuse that occurred by the corporate guardian (Ayudando)?”

Bacon responded that the new law has added transparency and accountability in several ways.

She told the committee that new reporting forms required of guardians and conservators beginning last July are “far more detailed and are actually auditable.” The number of pages for guardian reports went from two to 20 under last year’s changes.

Bacon cited the more stringent reporting in explaining to legislators how she discovered what she believed was “skimming” from client accounts by the Guardian Angels firm.

Last week, Bacon told the Journal that after new, more detailed annual reports were required, a court-appointed professional guardian “was sifting through all kinds of information to make sure she was up to speed” on a particular client.

That’s when the guardian noticed that a client’s bank account had been transferred from Ayudando to Guardian Angels by the U.S. Marshals Service, which oversaw the closure of Ayudando and reassignment of 1,400 clients to other firms and guardians.

Ayudando, while providing both guardianship and conservatorship services, had also served as a representative payee for some clients, overseeing the regular Social Security or Veterans Affairs benefits received and paying client bills each month. (In some cases, the guardian or family member performs representative payee duties, but other times a private company is appointed and charges a fee for its services.)

Bacon said the professional guardian noticed that Guardian Angels, as the representative payee, had moved a client’s funds from one bank to another, and saw that the $200 promotional bonus for opening the new account had been withdrawn by Guardian Angels.

After more digging, the professional guardian alerted Bacon’s office and a hearing was held, which Crumpler attended. As the hearing progressed, Bacon said, she ultimately felt compelled to read Crumpler her Fifth Amendment rights against self-incrimination.

“I had this very good sense that this was a bigger problem, and so other judges started seeing the same thing and having hearings,” Bacon said. “So I reported it to the AG’s Office, and the AG ran with it.”

Crumpler was charged March 12 with a second-degree felony of embezzlement and tampering with evidence stemming from nearly $50,000 in transfers she allegedly made from client accounts, beginning in June 2018 and continuing through November.

According to the AG’s Office, Crumpler opened new accounts for 247 clients, withdrew the $200 bonus and placed it in her own account. She is alleged to have put the money back into the clients’ accounts to avoid being caught.

Bacon said last year’s law relaxed the traditional confidentiality imposed in guardian and conservator cases to give judges the discretion to allow access to a protected person’s case information, if warranted.

“It goes all the way back to the changes that we made and that there was a responsible corporate guardian who was able to access more records and ask questions.” Typically, the courts aren’t involved in appointing representative payees. That is left up to federal agencies.

‘Waiver of liability’

Another reform in the latest law bars conservators from requiring a “waiver of liability” before heirs to an estate can receive an inheritance or a share of assets.

“With some regularity, we saw two different things were happening,” Bacon said. “One, the conservator was holding hostage funds (heirs were waiting for) and saying, you’re going to sign a release (of liability). Or, the conservator was asking an incapacitated person to sign a release. Well, they (the protected person) don’t have (mental) capacity.”

The conservators, she said, “were using that to walk away from any perceived liability.”

Now, such waivers are null and void in future cases.

State Sen. James White, R-Albuquerque, who sponsored the legislation along with state Rep. Daymon Ely, D-Corrales, said of the new reforms, “I think we’ve raised the level of attention to this.”
“Hopefully, we closed all the loopholes, but you never know.”

Some guardianship reforms contained in Senate Bill 395:
• Permits judges to appoint court investigators to conduct on-site reviews every 10 years to assess the protected person’s status and continued need for a guardianship.
• Requires a lawyer appointed for the alleged incapacitated person, a guardian ad litem, to submit a written recommendations to the judge before a hearing on whether to grant a guardianship or conservatorship, thus allowing additional time for review.
• Specifies the type of document, such as a will, a person can use to designate choice of guardian or conservator if he or she becomes incapacitated in the future.

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New guardianship law offers more protections

New Guardianship Law Taking Effect to Protect Elderly

A new guardianship law is taking effect Tuesday, July 1st, to help protect the elderly.

The new legislation is put in place to help protect your elderly family members from fraud, exploitation, and unnecessary guardianship through naming a power of attorney and a healthcare surrogate and alternate.

For preventive measures, its always a good idea to have a living will and discuss all plans and wishes with a trusting family member.

For more information visit the Academy of Florida Elder Law Attorneys website.

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New Guardianship Law Taking Effect to Protect Elderly