Wednesday, October 11, 2017

Are Guardianship Court "Oversight" Problems Pervasive?

 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. 

http://lawprofessors.typepad.com/elder_law/2017/10/are-guardianship-court-oversight-problems-pervasive-.html

Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations, Statistics | Permalink

Comments

Katherine,

Thanks for your continued coverage on this issue. Sadly statewide reform commissions and new state statutes are having little effect on stemming the tide. In Pennsylvania and Nevada newly appointed judges are returning the system to where it was a few years ago under Judge Stanley Ott-PA and Commissioner Jon Norheim-NV. Fraudulent guardianships are pervasive and growing in popularity. The immunity each judicial officer provides and the complete lack of oversight continues to keep the door wide open for corruption. WXYZ ABC News Detroit will be reporting on the issue across Michigan this Thursday and Friday night at 11pm if you want to hear about prevailing and growing issues there.

I attended my first guardianship evidentiary hearing in Mecklenburg County NC, where I live, last Friday. I was appalled by the experience but not surprised.

The assistant clerk of courts heard the case and allowed the "officers of the court" to guide him down a path to insure the estate was liquidated and transferred to court allies. A path liquidating a woman's trust assets, approving liens against her trust protected home, while sending her back to New Jersey where the guardian of person had committed her to squalor. A local professional guardian, defended by the Department of Social Services, kept the estate but a suspect and non estate designated daughter was given control of the person. The victim's residence, the POA, successor trustee and the rest of the core family are here in Charlotte. Oh, and the family returned the victim to Charlotte, which prompted the hearing, as she was begging to be returned to her home and freed from where she was being held in New Jersey.

The prevailing parties, all opined on "granny snatching" and kidnapping yet law enforcement never took action even though the predatory parties forced them to intercede at least four times. The victim was never allowed to speak. The family spoke of isolation, presented pictures of squalor and neglect, and doctors reports of dehydration and lack of care yet they were ignored. The victim, Judith Burgess, was returned to New Jersey and an unknown location on Saturday.

The Japanese use a term, Genchi Genbutsu meaning "Go and See” and it is a key principle of the Toyota manufacturing and quality systems. It suggests that in order to truly understand a situation one needs to go to genba or, the "real place" - where work is done. In manufacturing we fully appreciate leadership requires actually seeing and experiencing the problem to ever be able to recognize it and lead correction.

Until leadership, judicial and public, understands what really happens in these courtrooms the problem will only continue to grow. Too often, when folks of reasonable wealth are presented, the proceedings don't comply with many state or federal requirements. Most family dysfunction is enflamed or completely fabricated in these courts. The excuse is as old as Cain and Abel (of Adam and Eve) and every family has a blacksheep. Unfortunately the blacksheep shouldn't be leveraged by "officers of the court" to deny estate documents and justify court engagement.

My suggestion is "genchi genbutsu" and then make your decision. Based on the complaints AAAPG receives in my estimation the problem is pervasive.

Posted by: Rick Black | Oct 11, 2017 5:27:38 AM

Protection against abuse by Guardians or Conservators should start at the beginning of the proceeding.

Family members should actively participate in the determination of whether appointment is necessary and appropriate.

This is easier said than done.

In California jurisdiction over Conservatorships and Guardianships is exercised by the Probate Division of the California Superior Court.

Often the same participants (professional fiduciaries, attorneys representing the fiduciaries, and estate planning attorneys) repeatedly appear before the Probate Court for many of the Conservatorship/Guardianship proceedings.

These probate "insiders" are known to the court staff and to the Probate Judges. Naturally the Probate Judges may give more credence to the statements of people known to them than is given to persons appearing in their court for the first time.

The Probate Division of the Superior Court is staffed with Probate Investigators who examine the petitions for appointment of guardians and conservators. Often the Probate Investigators are understaffed and work within budgets too low for the work to be performed.

In California probate proceedings may be decided without calling live witnesses to testify. The Probate Code authorizes the court to proceed on sworn under oath written declarations rather than testimony from witnesses appearing in court.

The experienced probate insiders know how to properly prepare declarations and exhibits which will pass muster with the Probate Judges.

Family members and non-attorneys are often bewildered by the documents filed in the case and are perplexed when trying to present their position or objections. Often their letters or other documents are not considered because they do not meet the requirements of a declaration admissible in the probate court and/or the information presented is far afield of the issues set forth in the Petition to Appoint a Conservator/Guardian.

The rules of the probate court and procedures for appointing Conservators and Guardians create a "documentary wall" that unintentionally but effectively blocks family members from either (1) effectively presenting their facts and concerns about the appointment, or (2) objecting to the implementation and operation of a court authorized Conservatorship or Guardianship.

The structure of the system is opaque, not transparent.

If a family member wants to successfully oppose the appointment of a Conservator or Guardian that family member must file an actual "Answer" in the probate court and pay the appearance fee ($365.00 currently in California).

I recommend that the family member opposing the appointment of a conservator or guardian also demand in writing that the court conduct an evidentiary hearing on the petition.

Work hard, gather information and documents, and brace yourself for the documentary tidal wave.

If you cannot hire an experienced lawyer, check your local law library and local court website for information.

Good Luck.

John Mounier
ELDER PROTECTION ATTORNEYS
Los Angeles & San Francisco

Posted by: John Mounier | Oct 11, 2017 10:31:23 AM

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