Thursday, December 17, 2015

Is a Court-Appointed Guardianship, Using Paid, Private Guardian, "Worse Than Prison"? Latest from Nevada

As we've reported several times over the course of the last year, concerns about cost, misuse of authority, and lack of appropriate oversight of court-appointed guardians for adults in Clark County (Las Vegas), Nevada, have lead to a state-wide inquiry into how better to protect the civil rights of alleged incapacitated persons.  According to news reports recent proceedings before the Nevada Supreme Court Guardianship Commission, one judge described past neglect of the alleged incapacitated individual's rights as being "worse than being sent to prison."

A frequent concern raised by family members has been the cost of court-appointed guardians, particularly for individuals or family members who disagree with either the need for a guardianship or the scope of the guardian's powers over the individual or the individual's assets.  During the most recent proceedings addressing potential solutions, judges and others argued that a solution to some of the abuses was court-appointment of a lawyer at the outset of any guardianship proceeding to represent the interests of the individual.  Thus, there is some irony, that an additional layer of potential costs -- the cost of the appointed counsel -- would be argued as part of the solution.  On the other hand, limiting the amount of money such an attorney can charge (whether paid from the individual's estate or from public funds), can have the practical effect of what might be described as "de minimus" representation. 

The Nevada proceedings have attracted considerable attention from media nationally -- and from family advocates challenging court-supervised guardianships in other states and who are sharing information about problems and potential solutions. My thanks to Rick Black for sharing news from Nevada.

Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, State Statutes/Regulations | Permalink


Court appointed attorneys are not the solution to abusive guardianships. In San Bernardino County, CA, court appointed attorneys are part of the problem. A big part of the problem.
Like so many victims of abusive conservatorship / guardianship, my mom was imprisoned and isolated in an assisted living facility. She was denied visitors, phone calls, and mail. For 15 months, we did not know if she was alive or dead. My mom’s court appointed attorney opposed her being allowed contact with loved ones because, “It might inconvenience the facility.”
We obtained my mom’s care records and medical records through subpoena. Those records establish that my mom slept on a mattress on the floor. She was denied routine medical care and dental care. There are comments about “wasting” and “not enough nutrition.”
The most alarming records concern my mom’s fear of a male caregiver who worked alone at night in the locked dementia unit. My mom fought, screamed, and begged for help. The facility silenced her cries with escalating doses of Ativan, Seroquel, and Haldol.
After a year of increasing agitation and chemical restraint, my mom was taken by ambulance to the emergency room for vaginal bleeding, genital trauma, and severe agitation. In the ER she begged, “Help me. Help me. Help me!!!” The ER discharged her back to the facility.
Facility staff quickly transferred my mom to another location. They terminated the male caregiver. And they “lost” six weeks of staffing records. My mom’s agitation and vaginal bleeding both ended as soon as she was moved.
Our attorney asked the male caregiver if he ever sexually assaulted my mom. The male caregiver exercised his Fifth Amendment right and declined to answer the question.
The court appointed attorney testified that he saw no problems with my mom’s conservatorship or with her care. The court awarded him $150K in fees from my mom’s estate. The court awarded $180K in fees to the conservator’s attorney, who covered up evidence of sexual abuse.
Those attorneys are now seeking another $150K in “fees on fees” in response to our objections. These abuses will not end as long as conservatorship is so very lucrative. The only solution is to take money out of conservatorship, so that predators seek their victims in some other arena.

Posted by: Linda Kincaid | Dec 17, 2015 3:59:53 PM

Endless Attorney fees enabled by the guardian and court are THE PROBLEM. Profit motive in full gear. These cases are an embarrassment to the legal profession and an insult to our constitution.

Posted by: Sam Sugar | Dec 18, 2015 2:18:47 PM

Court appointed guardians are usually the cause of Elder Abuse; protection rackets across the US, run by the officers and judges of the probate courts, thrive on such ludicrous suggestions. See the "Boomers Against Elder Abuse" Facebook page for a list of violations shared by the 120,000 followers. The solution requires that guardianships are conducted outside of the courts, entirely. The reason is that, within the courts, there is no accountability. Judges are not accountable for bad acts: they have judicial immunity from all civil rights violations; Court appointed attorney have one client--the one who is incapacitated--who cannot argue with that lawyer or fire him. That lawyer can bill for any frivolous action he wishes to, with impunity. No system can withstand fertile ground for corruption under those circumstances.

Posted by: Greg Elofson | Dec 18, 2015 2:48:07 PM

As the president of NASGA, I can attest has been contacted by many guardianship wards who have recovered from the situations which landed them in the guardianships in the first place. These wards wish to regain their capacity; but without attorneys, they are trapped because their guardians aren’t helping them. How many fall through the cracks? We just don’t know.

Wards must have the right to legal representation; but it’s not just that simplistic. Cronyism exists in the court-appointed system - be it lawyers, guardians ad litem, or guardians. If the intent of appointing a lawyer to a ward is for the ward’s protection (and I believe it is), then it needs to be done right. Guardianship and conservatorship wards must have the right to hire their attorneys of choice.

Join the national movement for reform of unlawful and abusive guardianships and conservatorships. Join NASGA!

Posted by: Elaine Renoire | Dec 18, 2015 6:11:40 PM

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