Monday, February 12, 2007

Feel-Good Laws or Real Reform?

California’s conservatorship reform package, hailed as landmark legislation, was inspired by the LA Times searing report “Guardians for Profit.” The series portrayed private professional conservators, who are subject to less regulation than hairdressers, plundering clients’ estates while judges overlooked incompetence, neglect, and theft. To question conservatorship reform these days is near blasphemy. But are these laws really good policy?

Some of the provisions clearly have merit. One requires professional conservators to be licensed and regulated through the Department of Consumer Affairs. It bears mentioning that the law was sponsored by the Professional Fiduciaries Association of California (PFAC), which had tried for nearly a decade to get it passed. Those in the trade clearly stand to benefit from weeding out their crooked colleagues.

There are also provisions for more frequent court reviews, which also sounds like a good idea. But the cases described in the Times involved situations where individual courts had failed to provide even minimally adequate oversight. Under the new laws, courts may be required to conduct as many as 4 investigations during the first year of a new conservatorship. Wouldn’t it make more sense to address glaring deficiencies before imposing new responsibilities on all courts, including those that have been doing a good job? Not to mention the added costs of all these investigations, which are passed on to conservatees (those who can pay), and the added intrusion into their lives.

The Times reported that LA County's PG turned away 4 out of 5 people referred and took months to act, during which, hundreds of seniors died. As a result, the new law will require PGs to take all appropriate cases and sets deadlines for doing so.

Again, the law seems to make sense, but the issue here is really resources. LA wasn’t providing any funds to its PG, and the new laws don't provide any additional new state funding.

The new laws also fail to address more fundamental issues. A study of conservatorships in San Francisco a few years ago revealed that the PG’s backlog of cases could be accounted for in part by the fact that local nursing homes often refuse to accept impaired elders unless they are under conservatorships, a practice of dubious legality. The PG considers these patients a low priority because they aren't in imminent danger. For the most part, it's the hospitals that are being hurt since patients often remain hospitalized for weeks or months after they no longer require treatment. Patients too may be harmed by these unnecessary stays.

The SF study also found that some cases are referred for conservatorship because doctors are uncomfortable making medical decisions for impaired patients. In these cases, it's the docs who are being protected—against having to make tough decisions and potential liability. Other referrals come from APS on behalf of elders who are gravely disabled or in imminent danger because someone needs authority to assess their needs. In elder abuse cases, referrals are sometimes made to freeze the assets of incapacitated elders when criminals have access to them. I've heard that in another county, conservatorships are often sought simply to enroll incapacitated elders in hospice programs.

These experiences suggest the need to look at the goals and purposes of conservatorship. Conservatorships are to protect elders—not nursing homes or doctors. And, because conservatorship is an arduous process with long-term impact, it’s for people with long-term needs, not as a quick fix. They’re also intended to be used when less restrictive options won’t suffice. The problem is, there just aren’t many alternatives, and those that do exist are either flawed or aren’t being used. They include:

· Probate Code §3200, which allows health and medical care providers, neighbors, and friends to petition courts to order medical treatment (and possibly placement) for impaired patients. The law is not being used widely and its potential applications are unclear.

· Probate Code §2952 provides a means to secure the assets of elderly, incapacitated, financial crime victims. It is currently only being used in a few counties.

· Welfare & Institutions Code §§15703 - 15705.40 provides for “protective custody” of vulnerable persons with cognitive impairments to assess their protective service needs. It too, is only being used in a few counties.

· Health and Safety Code §1418.8 authorizes nursing homes to form in-house interdisciplinary teams to make medical decisions for patients who lack decision-making capacity. The statute has been criticized for its inherent conflicts of interest.

The SF study concluded that a statewide task force was needed to review how these laws and others have been interpreted and implemented across the state, explore best practices in other states, and make recommendations. Needless to say, that hasn’t happened.

Okay, granted, studying problems and developing strategic approaches to solving them isn’t sexy. But it’s what’s needed to produce coherent policy. The other day I came across minutes from a meeting of the State Senate’s “Subcommittee on Aging Elder Abuse Workgroup,” which met for several years to hash out policy. Experts from around the state met in Sacramento at their own expense. Many of the group's ideas were enacted into law and account for California’s strong civil and criminal protections. Unfortunately, staffing for the group, which was imperative to keep it moving and on track, was discontinued.

Today, more than ever, we need groups like these to debate the merits of proposed laws, oversee their implementation, identify problems, and ensure that the problems are ironed out or sent back to the drawing board. Lets face it. Slap-dash approaches only create more problems and stretch scarce resources even thinner.


Eileen Goldman said...

Congratulations, Lisa. What an informative and interesting blog. I am glad someone is publicly addressing the very complex issues involved with this new legislation.
Thank you for starting the discussion.

Anonymous said...

Lisa - Good post. Legislation often seems to provide both too much and too little -- the actual practices of courts, lawyers, individuals and agencies often deviate from the law and add layers of complexity. I'm hoping this is real reform, though. We discussed many of these issues at the AARP/ABA Guardianship Monitoring Symposium last week.

Ray said...

thanks Lisa for such an interesting article, I am running a abridged copy of the article on my site

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

FYI re: Naomi Karp’s comments. The symposium she’s referring to was convened by AARP’s Public Policy Institute last month. Participants included probate judges, court managers, attorneys, and other national experts who brainstormed about how to improve court oversight of guardianships and assist guardians. AARP, in collaboration with the ABA Commission on Law and Aging, will incorporate the group’s recommendations into a report that’s part of a two-year, national guardianship monitoring study. Naomi is a policy advisor for AARP’s Public Policy Institute and co-authored, along with Erica Wood of the ABA, the excellent “Incapacitated and Alone: Health Care Decision-Making for the Unbefriended Elderly,” which reported on the findings of a study on “decisionally-incapacitated” elders who don’t have advance directives, legally-authorized surrogates, or families or friends. The report describes how members of this group are at risk of “over-treatment, under-treatment, or treatment that doesn’t reflect their values or well-being.” It also describes how states are addressing the problem and offers recommendations. Key findings are available on the ABA’s website.

Anonymous said...

Abuse of the elderly and disabled can have many faces. These vulnerable people 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! Instead of conserving the ward's assets, guardians and conservators line their own pockets with the ward's hard earned dollars under the guise of "protection". How can this heinous behavior be construed as a "guardianship"?
A well-intended law's loopholes have been discovered, and are being taken advantage of, profiting the guardian instead of protecting the ward. And, it's not just private guardians that profit. Public Guardians can charge exorbitant fees, and far too often abuse their power as well. Professional guardians and lawyers are becoming wealthy by abusing guardianship/ conservatorship laws. Far too often, the ward whom the laws were intended to protect loses everything he or she worked a lifetime to earn. Sadly, guardianship/ conservatorship has become a money making racket, all with the blessings of our justice system! The courts do little, or nothing to discourage this behavior- in fact, it is perfectly legal! The courts are an integral part of the problem. The very place where we seek justice turns a deaf ear to the pleas of it's victims, enabling initially well-intentioned laws to become a travesty.
The "good ol' boys club" of the Probate Courts protects its members from interference with "business as usual".Too many times corruption has been uncovered, then dismissed, with no reprimand or a mere slap on the hand. Judges are judged by their fellow judges!
This "dirty little secret" of the Probate Courts is slowly being exposed, with the help of the National Association to STOP Guardian Abuse.

Think guardianship abuse could never affect you, or your loved ones? It can happen to anyone! Help warn our legislators that we will no longer stand for this exploitation of the vulnerable. Reform of this system is desperately needed.

Visit our website at for some eye-opening stories from victims. Then join us to put an end to this feeding frenzy, once and for all!