Thursday, September 20, 2018

Focusing on the Bigger Picture in Adult Guardianship Reform (Part 2)

Continuing with the analysis from yesterday for why many jurisdictions are finally confronting the need to make changes in their adult guardianship policies and laws,  here is my take on additional reasons. Will Pennsylvania enact Senate Bill 884 this session to get the ball rolling on reform?

Troubled histories have emerged across the nation.  Public concern has grown around the need for more careful consideration of the roles played by guardians.  For example, events in recent years have highlighted the following problems:

 

  • In Las Vegas, Nevada, uncritical reliance on a few individuals to serve as appointed “professional” guardians was linked to manipulation and abuse of the incapacitated wards and misuse of the wards’ financial resources. Concerned family members alleged corruption and their advocacy drove a reluctant system to examine the history of appointments, leading to the indictment and arrests of a frequently appointed guardian, members of her staff and a police officer in February 2018. 
  • In New Mexico, two nonprofit agencies used for guardianship services were investigated; principals were indicted by the U.S. Attorney for thousands of dollars in theft from the estates of incapacitated individuals.  This in turn triggered a massive call for emergency reform of New Mexico guardianship law, with the new laws coming into effect in July 2018.
  • In Florida, complaints by family members and others presented to the Florida Legislature over several years, resulted in three successive years of reforms to Florida guardianship law. One dramatic example was a particular court’s uncritical reliance on “friends” of the court to be appointed as guardians and paid out of the wards’ estates. In some instances the court rejected appointment of available family members. In 2017, a jury awarded a verdict of $16.4 million against lawyers for breaching their fiduciary duties and charging unnecessary and excessive fees.   

 

The New Yorker magazine published a feature article in October 2017 on the Las Vegas history, criticizing the state’s reluctance to investigate and make timely changes in its systems for appointment and monitoring of so-called professional guardians.  The title of the article is eye catching: How the Elderly Lose Their Rights, by Rachael Aviv.

 

While location-specific news stories of scandals come and go, the persistence of guardianship problems points to systemic weaknesses that require modern, uniform standards.  Thirty years ago, the Associated Press published a six-part national investigative series entitled Guardians of the Elderly: An Ailing System.  The series revealed frequent failures to appoint counsel to represent an alleged incapacitated person and the lack of clear standards for guardians who serve as fiduciaries. 

 

Perhaps most ominously, the articles condemned the seeming indifference of states to calls for modernization of systems and warned about the emergence of a new industry of paid “entrepreneurs” who handle and bill hundreds of wards’ estates for services that may or may not be warranted.   

 

Public outcry is growing and increasingly points to weak processes for appointment and review of guardians. This is especially true in the case of repeat players, sometimes referred to as “professional” guardians, a label that can cause confusion as the individuals may or may not have any professional training or certification.  In addition, families may complain about seemingly arbitrary or manipulative actions by family members who are appointed as guardians in individual cases; evidence from across the nation indicates that such complaints may be ignored or resolved in unsatisfactory, nontransparent ways, especially when no mandatory review processes are in place. 

 

Pennsylvania recently joined the states that are high-profile targets for specific public concerns about appointment and supervision of guardians for incapacitated persons. In 2017-18 the news media, including the Reading Eagle (articles by Nicole Brambila), the Philadelphia Inquirer (including an editorial titled “Pennsylvania is Allowing Elderly to be Prey for Financial Scammers”), and television investigative news programs, reported on a dramatic series of cases in Eastern Pennsylvania.  The coverage revealed that an individual, Gloria Byars, who was appointed as a guardian in cases filed in several counties, had a criminal history of fraud, forgery, and bad checks in another state.  She allegedly exploited the very individuals she was charged to protect in Pennsylvania.

 

In a court opinion summarizing findings of Byar’s misconduct in one case, the court examined how the inappropriate appointment occurred, and concluded with a warning:

 

        “Perhaps most troublingly . . .  [an authorized agency’s] failure to discover that the guardian it nominated in some many cases was     plainly unfit to serve has shaken the public’s faith in the guardianship system, which is vital to protecting incapacitated people                throughout Pennsylvania.”

 

While it can be tempting to argue about whether individual appointments have been fairly or unfairly criticized, and to point to the many sound, responsible individual and professionals who do serve as guardians, it seems clear that all states, including Pennsylvania, now have substantial evidence of the need for clearer, fairer procedures for appointment, for more carefully considered education for guardians, and for a system that facilitates active oversight, especially for guardians handling estates for multiple individuals.

In the final installment, tomorrow I will address pending amendments that may strengthen protections, and discuss some of the timing challenges for enactment in the waning days of the 2017-18 session.  

 

https://lawprofessors.typepad.com/elder_law/2018/09/focusing-on-the-bigger-picture-in-adult-guardianship-reform-part-2.html

Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink

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