Saturday, May 10, 2008

Guardianship Under Assault

Indictments of guardianship and guardians are flying fast and furiously these days on Web sites and blogs:

A new site, operated by a group calling itself the National Association to Stop Guardian Abuse, explains guardianship this way:

"At present, it operates to ensnare the most vulnerable people in a larger and larger trawling net, now including those merely physically "incapacitated"! It has become a feeding trough for unethical lawyers and other "fiduciaries" appointed by the courts to protect, but many of whom become nothing more than predators."

Another, called “Abusive Guardianships of the Elderly,” exhorts readers to share their stories:
Has someone you love been victimized by the guardianship racket? Please share your experience. We must look to each other for ideas and support if we are to stop the blatant exploitation our elderly and infirm suffer at the hands of the system and the law who is charged to protect them.”

And, in a recent response to my Feb 12, 2007 posting “Feel Good Laws or Real Reform?” about California’s conservatorship reform package, a respondent named “Sherry” had this to say:
"(The vulnerable) have become the prey for a predatory and lucrative guardianship/ conservatorship industry. In case after case, the ward's estate is pilfered by the guardian, while the ward is isolated in a nursing home against his will, not allowed contact by family members or friends, and eventually dies, bewildered and alone, all with the blessing of the court!"

Some of these critics have personal tales to tell. I don’t doubt their stories or their motives. We all know that abuses happen more often than they should. And I can think of nothing more disturbing than when “helping professionals” exploit those they’re charged to serve. Whether the offenders work for public agencies; private, non-profits; or they’re in private practice; their misdeeds leave colleagues feeling betrayed and demoralized. It casts a shadow on our field and undermines the public’s trust. But the wholesale vilification of the system and those involved, which seems to be accelerating, is deeply troubling.

The censure isn’t just coming from the public. Among professionals too there’s a tendency to impugn “the system” rather than those who corrupt it. And there’s been far too little meaningful discussion about how to fix problems, promote promising practices, offer safe alternatives, and provide the public with accurate and balanced information.

Guardianship was created to protect the vulnerable and prevent abuse and neglect. For the most part, that’s what it does. California’s Administrative Offices of the Court recently released a report, Effective Court Practice for Abused Elders, which includes the findings of a file review of conservatorships. In over 70% of the petitions filed in one county, there were allegations, suspicions by court investigators, or other indications of abuse or neglect by family members, neighbors, businesses, and others. (The report, which was funded by the Archstone Foundation, is available on line at Effective Court Practice.

The stories behind these cases—estates that have been saved and predators who’ve been thwarted--don’t get much attention or make headlines. They are, however, well known to those of us who have seen the system at its best. I admit that many of us in the San Francisco Bay Area are a bit biased as we have some of the best courts, attorneys, and professional guardians around. When I directed the San Francisco Consortium for Elder Abuse Prevention, members of our multidisciplinary team often breathed a collective sigh of relief when a particularly thorny abuse case was referred to the court, where we knew it would be rigorously reviewed.

So how do we go about restoring trust? An important first step, I believe, is to shed light on the system so that we fully understand and can explain both its strengths and shortcomings. To date, we lack such basic information as how many guardianships there are nationally, why they’re established, and how well they’re doing what they’re supposed to.

We also need to dispel damaging and persistent myths and misperceptions. As the quotes above suggest, there’s widespread belief that anyone who has a mental impairment can be placed under guardianship and that courts go “trawling’ for wards. We need to get the word out that while nearly 50% of people over 85 suffer from cognitive impairments, only a small proportion need guardianships. We also need to inform both professionals and the public about who initiates guardianships (not courts), and why—often, it’s because less restrictive legal devices like powers of attorney or trusts have been misused or when APS, police, or emergency personnel discover gravely disabled elders living in horrible conditions as a result of dementias. Once appointed, guardians can remove wards’ assets from wrongdoers’ control, initiate lawsuits to recover misappropriated assets or property, evict wrongdoers from elders’ residences, purchase needed services, authorize medical treatment, and arrange for elders to live in safe places.

Probably the most common complaint against guardianship is that it’s overly restrictive. For that reason, it’s considered the option of last resort. But as I pointed out in “Feel Good Laws or Real Reform?” the fact is, there are few alternatives. Those that are typically cited -- case management, daily money management, powers of attorney, and other advance directives--aren’t really alternatives. They might have circumvented the need for guardianship had they been implemented prior to the onset of incapacity; but once someone loses capacity, it’s too late to execute advance directives, and many social service providers can’t accept clients who are incapable of giving informed consent.

The few options available for those who have already lost capacity include representative payeeship, limited guardianships, and the appointment of surrogate decision makers on a one-shot or temporary basis. Rep payeeship, which can protect clients whose primary income is from public benefits, can be put in place for those who are unwilling or unable to consent. Under Georgia’s Health Care Placement Decision-Maker for An Adult Act, any person can petition the court to authorize placements in long-term care facilities. A few states have “protective custody,” which allows for vulnerable adults to be hospitalized for a few days when they lack capacity to consent to protective services and are in imminent danger or at risk of death. While in “custody,” their capacity and protective service needs are carefully assessed.

California has explored several options, which I discussed in my earlier posting. But for the most part, they’re untested, and many aren’t being used. Some, like Probate Code section 2952, which allows public guardians to freeze the assets of vulnerable elders when there’s cause to believe that they’ve been the victims of financial abuse, are coming into use gradually. Although the statute was enacted years ago, most counties continued to rely on temporary conservatorships (t-cons) in these circumstances. It appears that PGs have been using section 2952 more since the passage last year of a new law that requires courts to complete full investigations of t-cons. California also has a protective custody law, Welfare & Institutions Code Section 15703 - 15705.40, which has only been adopted in a few counties.

Clearly, these options need to be carefully scrutinized. For years, I’ve been calling for a statewide group to identify policy needs and perhaps more importantly, track what laws have been implemented, why some haven’t, how they’re working, and if they need tinkering.

As the population ages, more people are going to need guardianships and safe alternatives. It’s time to seriously address the problems in the system, explore alternatives, dispel myths, and earn the public’s trust and confidence. The longer we wait, the harder it’s going to be to turn things around.

12 comments:

Anne Haines said...

Guardianships and conservatorships need to be thoroughly overhauled. The probate system is all about conflict of interest! The lawyers, conservators, guardian ad litem and ward's attorneys all use the ward's money to fight the ward's own family and to keep the ward under their control. There is ZERO incentive for them to do otherwise, as then they are out of a job. Court oversight is a joke. Any billing is rubberstamped by the judge. Believe me, the foxes are guarding the henhouse.

Our family spent hundreds of thousands of dollars of my parents' hard-earned money fighting to get our mother and our fathers' wife of 52 years out of a conservatorship in CT. The conservator went out and hired himself not one, but TWO high-priced lawyers to fight Mom's family to keep her in Corrupticut, AFTER a Superior Court judge and probate court judge both ruled she could leave. This is a sick, sick system, creating a nationwide epidemic of guardianship abuse.

NASGA members have been mauled by the guardianship/conservatorship system and for every one of us there are hundreds more who haven't come forward. You can advise us on how best to work for change. Please join NASGA or at least contact our secretary, Elaine Renoire, through the NASGA website. We need your help!

Helen said...

Lisa, do you really think a statement by you will restore confidence in a CORRUPT system? Families don't want to know YOUR opinion, they want access to their loved ones, input on healthcare and real protection for the disabled's assets.

Think about it LISA, would You want a guardian putting you in a ltc prison and spending YOUR funds?

All this PROTECTION is done in the name of elder advocacy, but the proof is in the medical records and accountings. So it's legal, does that make you sleep better at night?

Anonymous said...

While I appreciate your point of view regarding the GC process, I fear you may underestimate the totality of damages that are occurring when a case "goes wrong". Families are being separated in the name of monetary gains by "professional" fiduciaries. One of the key elements to the problem is that guardian and conservatorships are a public health/social service issue but they are treated as a legal one. Guardian and conservatorships are necessary in some cases. We live in a transient society where there are no families to turn to. That being said, I think that to preserve the integrity of the system, financial caps must be placed to prevent even one bad egg from getting through. That one bad egg may impact the lives of 10 family members. At what point would the price be too high? The litigious nature of these proceeding put an unfair burden on the ward and their families who cannot out-lawyer them. Blaming the families at NASGA is tantamount to telling a woman she was asking for it when she gets raped. Please exercise caution in your defenses of a system that has violated their families. If the tables where turned, I would suspect you would appreciate compassion.

Sylvia Rudek said...

The only and best proof to see how the guardianship system is really working or not working to protect the wards and their assets would be a thourough review and audit of guardianship case files.

Would the files be complete?

Would all the files contain truthful and complete inventories and accountings?

Would someone discover "overbilling", (which in truth is fraudulent billing)?

One individual who did review all the guardianship case files in his county found problems in every guardianship case file that he reviewed.

The only proof, evidence that is available to us now to judge how the system is working, are the number of complaints and the words of the wards, themselves, and/or their surviving families.

In Wisconsin, the location of our guardianship abuse case, the files are "closed", sealed.

Only by subpoena, we were able to get any information to find our family members guardianship case file has numerous fraudulent declarations; false swearing; the file is incomplete; missing mandatory accounting and inventory by the temporary guardian to this day.

What did probate court do about the Temporary Guardians failure of her fiduciary duty? ABSOLUTELY NOTHING!

The guardianship system is not federally legislated or regulated. Each state has their own set of laws and each county interprets and enforces those laws and has their own procedures or lack of procedures, which is a recipe for disaster.

The way the laws are written, by design, the system benefits the Guardians at the Ward's expense, with court approval.

Kim said...

If there was more oversite by the courts, there would not be Guardianship Abuse. If judges were more open to families of wards, and the wards wishes, then we the members of National Association To Stop Guardianship Abuse would not have any complaints.

Our loved ones were taken over by the courts, and their colleagues (mostly personal friends, attorneys business partners of the judge's), the families were discredited with lies, that were not backed up by strong evidence, the judge did not even ask for the proof of evidence, even when told by the accused that they wanted to see the evidence.

Our loved one were robed by the courts appointed guardians, of everything that they worked for, and put on Medicaid after taking what should have been used to pay for the care of the ward.

The guardians keep saying the "BEST INTREST OF THE WARD", I ask you how in the world can anyone who is supposed to be in charge of PROTECTING, and PRESERVING, someone and their estate doing this when they lock them in a nursing home, and while keeping them from the people who love them and really care about what is happening to them, are in fact drugging them and taking all their money for themselves, and who are playing God, on a bad power trip.

You say that you have created this blog to "PREVENT ELDER ABUSE", but at the same time, the way I read you blog on this issue and please correct me if I am wrong, it sounds that you are on the side of the courts that are doing these things to the elderly, and when the elderly are abused the family is also being abused, and vis versa.

Lisa Nerenberg, Consultant, Speaker, Trainer said...

Hi Kim, Thanks for weighing in.
You ask about my “side” in this issue. It’s to see to it that we have protective services that work. I have never denied that there are abuses by courts, lawyers, judges, and guardians. I’ve seen many examples. But I’ve also seen countless instances of abuse by predators who seek out the most vulnerable members of society—those who are unable to protect themselves and who don’t have family, friends, and advocates to look out for them. And, not all family members “love … and really care about” their vulnerable elderly members. Some of the most egregious abuse I’ve seen is by family members. So, we need systems in place that have the authority to demand accountings and accountability and assign responsibility to the trustworthy. That’s the ultimate goal, if not the current reality. There are huge disparities across the country and even within states with regard to the quality of the courts and players. Those that are doing good work should be held up as examples and emulated. Those that aren’t should be exposed and changed. We also need to create more and better mechanisms for holding courts, guardians, lawyers, and judges accountable. My fear is that by creating the impression that the system is inherently bad reduces the likelihood that victims, their advocates, those who work with the elderly, and concerned parties will come forward. Do we really want to give predators and the unscrupulous a free pass? My goal in this blog and in my work in general is to prod members of my profession, policy makers, and advocates to engage in dialogue that leads to solutions.

Lisa Nerenberg, Consultant, Speaker, Trainer said...

Hey Sylvia.
Thanks for your thoughtful response. I agree that the lack of adequate court monitoring of guardianships is certainly a problem. I hope you’ve had a chance to see the excellent 2006 publication Guardianship Monitoring: A National Survey of Court Practices and the follow-up report Guarding the Guardians: Promising Practices for Court Monitoring, both by Naomi Karp of the AARP Public Policy Institute and Erica Wood of the ABA’s Commission on Law and Aging. Both are available on AARP’s Web site. I also absolutely agree with you on the need for federal regulation and monitoring. In general, we need more uniformity and federal involvement in elder abuse prevention. Hope you’re advocating for the Elder Justice Act. See the Web site of the Elder Justice Coalition.
L

Anne Haines said...

Lisa, you said: "My fear is that by creating the impression that the system is inherently bad reduces the likelihood that victims, their advocates, those who work with the elderly, and concerned parties will come forward. Do we really want to give predators and the unscrupulous a free pass? My goal in this blog and in my work in general is to prod members of my profession, policy makers, and advocates to engage in dialogue that leads to solutions."

I DISAGREE! I personally DO believe that the present system IS inherently bad, because so many fundamental rights are taken from a person, with little or no recourse.

When someone explains to me why a prisoner on death row has more rights than someone under a guardianship, why perfect strangers with extreme conflicts of interest are allowed to make life and death decisions, and when judges can be held accountable for their actions, then maybe I will agree that there is some hope for the present system. Until then, absolutely NOT!

NASGA was formed because victims had nowhere to turn for information, support or changeing the system. Our family became embroiled in a conservatorship because we had NO IDEA what it entailed, and how a person's rights can be stripped away in minutes by a probate court. We did consult several lawyers BEFORE going to the hearing that established the permanent conservatorship. If we had known then what we know now, we would NEVER have agreed to the conservatorship as our lawyer suggested.

Warning people what CAN happen in a guardianship or conservatorship is extremely important. I do not believe it will give "predators and the unscrupulous a free pass"- they've already got it because people have no idea of the abuses that are possible.

Members of NASGA have tried to get media attention, without much success, but when FOXTV did shows on abusive guardianships, they were beseiged with emails and calls from viewers who had their own horror stories to tell. Newspaper articles such as those by Rick Green of the Hartford Courant have helped free at least 3 people from illegal conservatorships in Connecticut, my mother among them. Without the spotlight on the media on the probate courts, I firmly believe those people would still be held prisoner.

Yes, maybe we do need federal oversight, but that may be difficult to achieve. Until probate courts and judges think that they are in the spotlight of media attention and public opinion, there will be no reason to change how they operate. The first step is to make the public AWARE of the problem!

Harriet said...

Lisa, It seems that your blog on guardianship has stirred quite a response from readers. It sounds as if most of the respondents have had unfortunate personal stories of guardianship abuse; and I don't, for a second, doubt them or the severity of the anguish they must have gone through. However, these are anecdotal stories. More than anything they serve to point up your contention that there can be and are abuses to the guardianship system. But, by being informed of the system abuses that have occurred, we are in a better position to see what is necessary to change the system to prevent future abuse. To completed condemn the guardianship system would be like throwing out the baby with the bath water. There is no question that guardianship is needed for some seniors. Unfortunately not all seniors have caring family members to take care of them if they become cognitively impaired. What we must do is fix the problems that exist in the system, so it can serve the purpose for which it was designed...to effectively help and protect elders who are not able to manage on their own or with the help of family and/or friends.

Anonymous said...

I live in the State of Florida,one of the largest retirement places in the USA. While having been involved in a guardianship for the last 7 years, I can honestly tell you that if it was NOT for the judges, handling and allowing everything to go on, NOTHING would be happening...for example, the administrative judge over my mother's case,appointed my brother who is in an active psychiatric disability (against Florida Statutes/the law),guardian of my mother's property. Property/assets? HER hard worked, bought/paid home;
furniture,clothing even her underwear was taken...after taking everything she worked for,when the money was gone, so was the court appointed guardian and her attorney...my mother was then made a "ward" of a Guardianship Program... interesting enough, its president, was my brother's attorney! the same judge, put a late 70's year old lady in jail for 5 months a couple of years ago--
according to an investigative news segment because this lady, could not provide the judge some bank statements on time. I later met this woman who also stated that another issue which seemed to "upset" the judge was the fact, that although prohibited from visiting her older sister who was the center of this guardianship, she continue to do so! One would think that with so many real criminals walking the streets the bed this poor lady took up,could have had a better use...retirees beware!!!!

Elaine Renoire said...

In response to Harriet, no one is saying all guardianship is bad or that there are some cases where guardianship is the last and only resort.

However, that said, we are facing a growing national epidemic of unlawful and abusive guardianships/conservatorships.

The laws, designed to "protect" and "conserve" are used instead by guardians and attorneys to exploit the very people they have been court-appointed to protect. And it's all "legal".

The guardian/attorney tag teams just get richer while giving their vulnerable wards the shaft.

In the end, the guardians/attorneys walk away after pauperizing the Ward, leaving Mr. and Mrs. Taxpayer to pick up the Medicaid tab while they're out looking for new victims.

Families are shut out of their loved one's lives and go bankrupt trying to free them. Lives and bank accounts are destroyed. The stress is unbearable.

Don't believe it? Visit www.StopGuardianAbuse.org and read the vitims stories -- and absorb them.

If we don't stop the predatory practice of unlawful and abusive guardianships, then we will likely meet the same fate.

Yours,
Elaine Renoire

elflauta said...

I am the caregiver of my grandmother and I live with her while her son is her guardian and does not. He is constantly giving me trouble and has recently changed the phone number and stopped my cousins from visiting my grandmothers home. He complains about the bills and my grandmother wants him removed as the guardian. Do we have a chance to do that?