"Are We Protecting the Vulnerable?
Conservators and Guardianship Provisions Under Attack"
By Richard A. Sherer
March 2006, Vol. XXV, Issue 3
In Iowa, an accountant who had been appointed conservator for a woman with dementia, was convicted of stealing $150,000 from his ward. It was his third conviction for theft.
In San Antonio, an 85-year-old woman claimed she was held against her will for 11 months by a daughter who had "secretly activated a power of attorney and taken control of most of her mother's assets," according to a newspaper report. A battle for jurisdiction over the woman's case is underway pitting courts in New Jersey, her legal residence, against those in Texas, where the daughter resides.
A Canton, Ohio, nonprofit corporation that serves as the property guardian for between 200 and 400 individuals was the subject of a four-part series by the local newspaper that claimed the firm squandered wards' assets, paid itself for services out of wards' estates before getting court approval, and sold homes and other assets belonging to its wards to local appraisers. According to the newspaper, the firm's employees obtained appointments as guardians in order to get around laws prohibiting corporations from serving in that function.
The Los Angeles Times published a four-part series last year, detailing abuses in the public guardianship system. The paper found that so-called professional conservators were obtaining court appointments granting them life-and-death decision-making authority over individuals they had never met, people who, in some cases, were competent to handle their own affairs. Some of these guardians and conservators were accused of using wards' assets for their own gain, and nearly all were operating without scrutiny from the courts that appointed them.
Indeed, guardianship laws-the provisions aimed at ensuring that elderly and incompetent individuals receive the necessities of life (including medical care and financial protection)-are drawing fire around the country amid charges of abuse, fraud and civil rights violations.
Because the vast majority of wards protected under guardianship or conservatorship orders are among the most vulnerable members of society-with mental illness, mental retardation, and Alzheimer's disease or dementia accounting for 82% in a recent study-they are often unable to fight back. If the system designed to represent their interests fails, they have nowhere to turn.
Guardianships and conservatorships were created to fill a void for people who were unable or unfit to take care of themselves. Originally established to look after the needs of orphans, the role of the guardian has expanded in recent decades to encompass seniors and other individuals deemed incompetent by the courts or society.
A 2005 study by the American Bar Association found:
Public guardianship programs serve younger individuals with more complex needs than 25 years ago. Our 2004 survey found that individuals age 65 or over constituted between 37% and 57% of public guardianship wards, while those age 18-64 comprised between 43% and 62% of total wards. Younger clients include a range of individuals with mental illness, mental retardation, developmental disability, head injuries and substance abuse-the incidence of which are rising in the general population. Some may have involvement in the criminal justice system. In addition, many older clients may have a dual diagnosis of dementia and severe mental illness-and many individuals with mental retardation or developmental disabilities are aging. For instance, interview respondents in Kentucky reported, 'The typical clients, older women in nursing homes, are now only half of the caseload;' and 'clients are younger and have many more drug and alcohol problems.' Public guardianship used to be regarded as a custodial program, but no longer. Complex cases involving people with challenging behavioral problems are much more labor intensive than the previous population set.
The Bar Association found that most states are not prepared to deal with the needs of their wards.
Public guardianship programs are frequently understaffed and under-funded. Virtually all states reported that lack of funding and staffing is their greatest weakness and greatest threat. The study identified staff to ward ratios as high as 1:50, 1:80 and even 1:173. Caseloads are rising, but program budgets are not rising commensurately, and in some cases staff positions are frozen. ... [C]ases frequently are more complex than 25 years ago, with more individuals with challenging behavioral problems, substance abuse, and severe mental illness, all requiring a higher degree of staff oversight and interaction. Some... respondents revealed high levels of frustration with an overload of vulnerable individuals in dire need and little ability of the program to respond adequately. Some reported 'staff burnout,' 'judges not sympathetic to the high caseload problem,' 'more labor intensive cases,' 'not enough time to do proper accounting,' 'not enough time to see wards often enough,' 'too few restoration petitions,' and 'prohibitively high caseloads preventing a focus on individual needs.' Eleven states estimated the additional funding that would be needed to support adequate staff-ranging from $150,000 to $20 million.
In California and other states, the void created by inadequate funding and oversight has led to a golden opportunity for outsiders to exploit the system. Attorneys, accountants, health care providers and private citizens are obtaining guardianship appointments with no supervision.
In virtually all states with guardianship laws on the books, health care professionals are involved in some measure in determining the needs of a potential ward. The Bar Association found that "at least 32 states refer to examination by a physician and 16 specifically include a psychologist. Other examiners named by state statutes include psychiatrists, mental health professionals, social workers, nurses, and 'other qualified professionals.'"
One case cited in the Times involved a psychiatrist prescribing olanzapine (Zyprexa) for a ward at the behest of a guardian who had been appointed without a hearing. The story did not identify the psychiatrist or provide any information about an examination of the ward, who said she had not been diagnosed with either schizophrenia or bipolar disorder. A court has now agreed to hear the ward's petition to end the conservatorship.
"There are a number of standards that exist in the law today, but they can be waived," said Leora Gershenzon, counsel to California State Assembly's judiciary committee in an interview with Psychiatric Times. "The courts do not have enough resources to ensure that standards are adhered to."
"It would seem we have the laws on the books to address some of the abuse," added Randall Hagar, director of government affairs for the California Psychiatric Association. He told PT, "The courts would be point of responsibilty."
Even before the news stories appeared, there has been a movement to strengthen legislation governing guardians and conservators. In recent years, 10 states have adopted or revised laws covering guardianships, but stories of abuse continue to surface. In California, the Times series led to a spate of bills being introduced in the legislature. In addition, the state's judicial council appointed a task force to examine what steps are necessary to protect wards in the future.
But new laws may not be the best answer. In most jurisdictions where guardians and conservators are appointed, courts are expected to exercise some kind of oversight. This may include hearings before a guardian is appointed as well as periodic audits and reviews of guardianship cases. The Times reported, however, that "judges frequently overlooked incompetence, neglect and outright theft" by guardians and conservators.
"It may be that we need to change the way the judiciary staffs and deals with this area of the law-more education, training and interest," Presiding Justice Roger W. Boren, told PT. Boren is chairing the state's judicial task force.
However, tinkering with existing laws or tightening oversight and regulations may not satisfy some critics of the nation's guardianship practices.
Jennifer Mathis, JD, is a staff attorney at the Judge David L. Bazelon Center for Mental Health Law. She believes that the entire system of appointing guardians needs to be reexamined.
"The L.A. Times series, like so many of the other stories, focused on criminal activity: depleting people's estates, fraud, theft-really horrible stuff," she explained to PT. "It did not focus on the basic issues regarding the guardianship system generally.
"The suggestion in the articles is that the solution is just to have tighter controls on guardians and appoint more honest people. I don't think that's the case. The major flaws are with the system itself. We need to reexamine this system where we take away so much of a person's control of every aspect of his life in the name of protection. People lose rights there is no need for them to lose.
"I went to a meeting right after the Times series appeared," she said. "California already has some of the most stringent laws in the nation. They have the most protections. They're just not being enforced."
Mathis says that under the laws in most states, guardians are given broad power over the lives of their wards.
"Suppose you need help in meeting your basic needs. Someone is appointed to help you, and suddenly, you lose all of your rights. Suddenly, someone is deciding who you can talk to, whether it be your lawyer or even a mental professional. They decide where you can live," Mathis said.
"This loss of control is not necessary to enhance a person's ability to meet their basic health and safety needs. In many states, wards even lose their voting rights. In Missouri, for example, there is a proposal to eliminate Medicaid entirely. People who are under guardianship cannot vote on it. They can go and lobby their representatives about it, but they can't vote on something that will impact their lives immeasurably."
Mathis added, "The answer lies in restructuring the entire system. I don't know that there's the political will to do that. It's not a matter of tinkering around the edges, cracking down on dishonest guardians or educating guardians. Most people shouldn't have a guardian imposed if they can have a less restrictive solution.
"The standards for guardianship should be more stringent," she continued. "We should make the courts go through an exercise of figuring out what exactly is it that this person needs, what is the guardian going to do, why should guardianship be imposed.
"If someone needs help with their medications, why not get a medication monitoring person? Make them prove in each step that it can't be done in a more limited way. Many states have a 'least restrictive alternative' provision in their laws, but that doesn't happen. It's not meaningful the way it's implemented in most states.
"This would be more meaningful: You have to go through service by service to determine what it is about this person's needs that you need to take away their rights in order to serve them.
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