Wednesday, October 11, 2017
During the last several years, I've received calls from around the country about possible guardianship "oversight" concerns. And since The New Yorker article came out last week focusing on guardianship issues in Las Vegas Nevada, I've been getting more calls. The question arises: Is there a pervasive problem with court-appointed guardians for older adults in the United States?
In my opinion, the answer is "no, not pervasive." At least, that's my answer if the definition of pervasive is "universal," or omnipresent, or rife, or widespread. In the 20+ years I've been working in elder law, I've unfortunately reviewed a lot of cases of exploitation, but it is comparatively rare that I've been asked to examine a court-monitored guardianship where there was a problem created by inadequate attention by the courts, much less active misconduct by the court or agency. Granted, that is just one law professor's experience.
Still, in my opinion, the oversight problems that do exist within the U.S. are significant, periodic, sometimes recurring or persistent, and often have common elements. The issues can exist in any county court or fiduciary administrative system. Historically, these courts -- sometimes called probate courts, fiduciary courts, surrogate courts, or orphans courts -- depended on the guardians for management of all issues, once the appointments were made. The judges trusted their appointees to take their fiduciary responsibilities seriously. But, as is sometimes said in international relations, the problem can be how best to "trust, but verify" proper behavior. With more elder boomers, there can be increased need for guardians, and thus more potential for guardians to be monitored.
- For example, in Maricopa County, Arizona, an investigative news series, that began in 2008 with the reporting of Laurie Roberts for the Arizona Republic, described a number of mishandled older adult guardianships. In some instances, the family members were so busy arguing about money, that the incapacitated elder was ignored, while his or her estate was diminished to pay fees. Sometimes the question was whether a "full" guardianship was even necessary. The problems, once investigated not just by journalists but by the courts, resulted in changes in Arizona guardianship law.
- In Palm Beach County, Florida, complaints about appointment of a particular individual as guardian in a large number of cases, focused on conflict of interest and claims of favoritism by the court, complaints that came from a number of families. Eventually, in one case challenging the system, a jury reportedly awarded more than $16 million against two West Palm Beach attorneys for "breach of fiduciary duties." The complaints also led to state investigations of Florida's entire oversight systems, and brought three years of legislative changes to Florida guardianship laws.
- Most recently, two co-founders of a nonprofit guardianship company, Ayudando Guardianship, in Bernalillo County, New Mexico were indicted in federal court in July 2017 with criminal charges including conspiracy, mail fraud, aggravated identity theft, and money laundering. The company was the appointed fiduciary in hundreds of cases.
Especially when the Clark County, Nevada cases are included in this list of recent challenges to guardianship oversight systems, concerns about proper and objective oversight are real; without a equally real commitment to more careful selection, training, monitoring and accountability for guardians, the problems can be predicted to increase as the baby boomer generation of seniors get to their 70s, 80s, or 90s. In 2016, the GAO for the United States responded to a U.S. Senate Special Committee on Aging's request for data on "the extent of abuse by guardians," and concluded that "courts lack comprehensive data on older adults in guardianships and elder abuse by guardians, but some courts have limited information." Unreliable data certainly leaves open the potential for the occasional problems to become pervasive problems.
In 2013-14, the National Association for Court Management published an "Adult Gurdianship Guide." I think that some jurisdictions -- often on a county-by-county basis -- are working harder to get ahead of any problems, as I witnessed when I was part of Pennsylvania's 2013-14 Supreme Court Elder Law Task Force. We talked about guardianship related issues, including:
- Funding for Oversight. Most courts report they are understaffed and short on money; adding duties to existing court staff is difficult if not impossible.
- Training Prospective Guardians: Again, funding and personnel are the issues, both to design training programs for guardians and administer such training.
- Making Guardianships "Too" Expensive? In many regions, there is a serious shortage of prospective guardians, especially where family members are unable or unavailable to serve. If subject to increased training and reporting requirements, some guardians, whether they are from inside or outside the family, may be less likely to serve, and there may not be a way to compensate them adequately for these duties.
- Conflicts with Family Members: In some instances, courts have declined to appoint a family member as a guardian because of concerns about trustworthiness of that individual. Family members sometimes challenge actions of court-appointed guardians for personal reasons unrelated to the ward's needs. Where money is involved, family member objections are not a new problem, as Princeton Professor Hendrick Hartog wrote about so eloquently in his 2012 sabbatical-inspired book, Someday All This Will Be Yours: A History of Inheritance and Old Age."
On a state-wide level, in my own state of Pennsylvania, I've been reassured by the Pennsylvania Supreme Court's efforts to be more proactive about guardianship monitoring, including support for carefully designed volunteer (but not cost-free) monitoring programs.