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.

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.