THE GUARDIANSHIP TRAP: System improving, but problems persist
28th June 2016 · 0 Comments
By Emily Gurnon
Contributing Writer
Last in a three-part series
(Special from PBS NextAve-nue/New America Media) — Cases of abusive guardianships have made headlines for decades. Horrific tales — of relatives fighting over Mom to access her savings, professional guardians draining an estate through exorbitant fees or nursing homes filing for guardianship to keep their beds filled — have been all too common.
When a judge imposes legal guardianship or conservatorship, everything changes.
After a hearing that might last only minutes, the ward or “incapacitated person” may no longer be allowed to decide where to live or whom he or she will see. If a guardian is appointed for you, that person will choose whether you get any spending money. You won’t be able to enter into contracts, including marriage, or demand a different guardian or your freedom back — even if your guardian is abusing you or stealing your money.
Nationwide Reforms
Many such arrangements are undoubtedly necessary and benign. And the ranks of guardians and conservators include some highly dedicated, caring and selfless people.
Yet this investigation has come to a key conclusion: changes are desperately needed.
Yes, lawyers, judges, advocates and politicians have fought hard for reform in the guardianship and conservatorship systems. (Guardianship generally refers to control over a person; conservatorship, to control over a person’s finances.)
Dozens of new laws have been put in place throughout the country. But many experts believe it’s all happening far too slowly — and some of the most finely crafted laws remain mere words on paper.
“Even though we’ve made changes in the statutes, it’s as if we’re living in a virtual reality,” said A. Frank Johns, a Greensboro, N.C. attorney and a national leader in the field of elder law. “When you go out and try to look for the application of those changes, it’s nowhere to be found.”
In 2014, there were 33 changes in laws on adult guardianship in 18 states, according to a report by the Commission on Law and Aging of the American Bar Association.
The changes concerned such aspects as background checks on guardians, access of the ward to visitors and phone calls (an issue in the highly publicized guardianship of radio personality Casey Kasem), health care decision-making by guardians, guardian fees and rights of people under guardianship.
For the most part, however, “we don’t need to change the laws; we need to enthusiastically and effectively apply the laws that we have,” said Sally Hurme, an elder law attorney in Washington, D.C. A leader in guardianship reform for two decades, she added, “We need to give courts the resources to do their legislative and moral mandate.”
Landmark Investigation
Experts say there was little widespread recognition or publicity about the problems in guardianships until 1987, when the Associated Press published a blistering six-part series of articles following a year-long investigation.
Then as now, there were no reliable statistics on exactly how many guardianships there are nationwide; the AP estimated 300,000 to 400,000. Today, experts give a range from one million to two million. States do not keep track of the numbers.
The exposé prompted impassioned calls for reform and led to a host of new state laws.
Some of the changes since then include these requirements:
• That the would-be “incapacitated person” is notified of the guardianship hearing and be present if desired;
• That he or she has the right to an attorney;
• That there is “clear and convincing” evidence that the person is incapacitated, and, in some states, that guardianship is necessary to avoid harm;
• That (in some states) a medical expert assesses the proposed ward.
Abuses Elsewhere
One major push in new legislation across the country has been to mandate that judges grant limited guardianship orders whenever possible, rather than a wholesale termination of the person’s rights. An example might be allowing a person to retain some say over where he or she lives. It’s an uphill battle.
A preference for limited orders is “the statutory mandate in just about every state, but we know there are more excessive removals of rights in too many cases,” said Hurme. “We’re trying to come up with language beating the judges over the head [that] you’d better have a good reason on the record why you are not imposing a limited guardianship rather than a full guardianship.”
Minnesota law says that a full, or plenary, guardianship, shall be granted only when there is no other way to protect the person sufficiently, said Jennifer Wright, a professor at the University of St. Thomas School of Law in Minneapolis who directs the school’s Elder Law Practice Group.
However, “there are almost no limited orders,” she said. “It’s very rare. The default is plenary.” Experts in several other states echoed that sentiment.
Wright said one judge told her that if he granted the limited order she was requesting, he’d have to modify it a year later if the ward’s health declined. (In his defense, he agreed to the limited order.) “So there’s a strong push, for judicial efficiency, against them,” Wright said.
And judges are afraid, she added. “Judges are really worried about people getting hurt, and they think that guardianship protects them. They do get hurt. They get hurt when they get stuck in nursing homes for the rest of their lives. They get hurt when their power to make decisions is taken away and that drives them into depression.”
She and others have worked to find creative alternatives to guardianship.
One woman told Wright she wanted a guardianship because her mother kept leaving papers on the stovetop, and one day it caused a fire. “I said, ‘We’ll take the stove out. Get her on Meals on Wheels. Leave the microwave in,’” Wright said. “There are ways to solve that problem other than guardianship.”
Evaluating the ‘Alleged Incapacitated Person’
Many advocates believe that it is still far too easy to get a judge to sign off on a guardianship or conservatorship. The evidence stating that the older adult can’t handle his or her own affairs is supposed to be “clear and convincing,” but in reality may consist of:
• A brief letter from a general practitioner, who may be taking the word of an adult child;
• A statement from a doctor who does not know the difference between delirium, which is temporary, and dementia, which is not;
• A court petition from a proposed guardian or conservator who has a conflict of interest in getting the older person under their control;
• A petition from a nursing home that wants to ensure they retain a regular, paying client;
• A statement from an adult child who simply wants to take over the decision-making from Mom or Dad instead of arguing about what they see as necessary care.
“In my experience, a lot of times, people will utilize guardianships as a means to another end,” said Bernard Krooks, an elder law attorney and founding partner of the New York law firm Littman Krooks.
“Sometimes family members will get a guardianship so that one of the siblings can resolve an issue that he or she has with another sibling and they’re using the parent as a pawn,” he explained.
In those cases, the judge should throw out the petition, Krooks said, but that often doesn’t happen.
This series is adapted from a longer version by Emily Gurnon for PBS Next Avenue, where she is Health and Caregiving Editor. The projects had support from the Journalists in Aging Fellows Program of New America Media and the Gerontological Society of America, sponsored by the Retirement Research Foundation.
This article originally published in the June 27, 2016 print edition of The Louisiana Weekly newspaper.
