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Brief Looks at Guardianship in Some States With Guardians of Elderly I, Bjt

September 19, 1987

PITTSBURGH (AP) _ PENNSYLVANIA Guardianship Law Outdated and Ripe for Abuse

Pennsylvania’s guardianship law is outdated, largely unmonitored and ripe for abuse.

″Guardianship is the worst. The law is archaic. It’s antedeluvian,″ said Richard Levine, a Pittsburgh attorney and founder of the Elderly Citizens Resource Center.

The courts supervise incompetents, but only one of the state’s 67 counties knows how many guardianships it has.

Only one county demands periodic financial accountings. Only one county requires that all alleged incompetents have lawyers. Only one county has investigators to follow up on wards. The state has no public guardian.

An Associated Press check of 106 cases found:

- A Cambria County woman bought an $11,000 Cadillac and gave her daughter a $1,000 wedding present with her incompetent mother’s money. The woman was reprimanded but did not have to repay the estate because she was the only surviving heir.

- A Bedford County woman will repay $81,558.04 to her incompetent brother- in-law after she was sued by the local Area Agency on Aging. She claimed the money was a gift.

- A Pittsburgh lawyer kept $25,000 of his ward’s Social Security checks and failed to pay her hospital bills. He was disbarred, and the local district attorney was asked to look into criminal charges.

The survey also confirmed:

- A Pittsburgh accountant spent $156,202 of his ward’s $161,968 estate in 22 months. His guardian fee was $24,175. He kept $28,954 of a property sale and paid himself $20,000 for buying his ward a lottery business. A court- appointed master recommended that he repay $123,295. The local district attorney is investigating.

- A Philadelphia judge paid himself $44,252 of his ward’s $150,602 estate, charging $25 for each visit and $25 an hour for chores like changing light bulbs and taking out trash. The judge repaid the estate $32,252 and the state judicial ethics committee is aware of the case.

In Berks County in 1978, the average length of 116 guardianship hearings was 2 minutes, 15 seconds. All were declared incompetent, according to the county’s Mental Health Association.

--- NEW YORK New York’s Sytem Haphazardly Administered By MITCHELL LANDSBERG Associatyed Press Writer

NEW YORK (AP) - New York state’s conservatorship system, which oversees the assets of more than 9,000 elderly and disabled people, is haphazardly administered and contains safeguards that are often ignored.

An Associated Press survey of 119 court files throughout the state, along with interviews with dozens of court officials and legal experts, revealed a system that is frequently overburdened and underscrutinized.

Among the findings:

- Despite the law restricting their powers, conservators are increasingly involved in life-and-death medical decisions for their wards. Judge Harold Tompkins of the Bronx said he recently appointed two conservators in right-to- die cases, despite provisions in the law that give conservators power over financial matters only. Both patients were allowed to die.

- Conservators are required to give annual summaries of how their wards’ money was handled. However, statistics gathered by the AP show that on average, accountings are filed once every 21 months. In some cases, years have gone by without an accounting, opening up the possibility for undetected abuse.

- In some upstate counties, judges appear to have violated the law by holding hearings in which the person whose finances are at stake, the ward, is neither present nor represented by a lawyer.

- The person whose mental ability was questioned participated in his or her own court hearing in only five of the 119 cases. The law states that the proposed ward should be present if possible.

For all its procedural problems, the AP found that the system, which gives a court-approved conservator control over another person’s finances, has been improved as a result of reforms enacted after several scandals over the last decade.

The most recent involved John Zaccaro, the husband of 1984 Democratic vice presidential candidate Geraldine Ferraro, who was removed as a conservator after borrowing $175,000 from his ward’s estate for private investments.

The incident prompted several changes, including the release of a monthly county-by-county list of people named as conservators. The assumption is that judges will be less likely to appoint political cronies if the process faces public scrutiny.

--- WASHINGTON STATE Many People Ignoring the Law and Courts Not Stopping Them By LARRY RYCKMAN Associated Press Writer

SEATTLE (AP) - A decade after Washington state pioneered a guardianship law to protect senior citizens threatened with the loss of their rights, many people involved are ignoring the law and the courts are not stopping them.

An investigation by The Associated Press of guardianships for elderly people in Washington revealed many guardians fail to file annual reports on how they spent a ward’s money - a violation of the law - and that courts are unable to keep track of the files. Without the annual reports, courts do not know whether guardians are stealing from their elderly wards or mistreating them.

And in most cases, the investigators appointed by the courts to protect the rights of the elderly waive the proposed ward’s right to attend court competency hearings.

A guardianship allows other people, usually family members, to assume total control of the elderly ward’s personal and financial affairs, to pay their expenses and make medical decisions. It is a system designed to help elderly people who have become unable, through illness or other circumstances, to take care of themselves.

But once declared incompetent and placed under full guardianship, the elderly lose all rights, including the right to vote, to buy or sell property and to enter into contracts.

″It’s the most severe civil thing we can do to someone,″ said Seattle lawyer William Dussault, who drafted the 1975 revision of Washington’s guardianship law. ″Placing a person under guardianship puts them in a position similar to that of being a convicted felon.″

Among the findings in AP’s statewide guardianship investigation, which included a random check of 46 files:

- A court commissioner declared a woman incompetent and placed her under guardianship five minutes before she arrived for her hearing.

- A court commissioner placed an elderly woman under guardianship without appointing an independent court investigator to evaluate the woman’s competency.

- A woman charged with managing her mother’s $1 million estate has gone seven years without any court supervision, a violation of the law.

Lawyers, judges and others involved in guardianships, some of whom are ignorant of the law’s provisions, acknowledge there are flaws, but say they believe the system works in most cases. The problems, they say, arise not from the law itself but from its application.

--- MICHIGAN Misused and Poorly Monitored By MARK FRITZ Associated Press Writer

DETROIT (AP) - Many of Michigan’s elderly people are being stripped of their homes, their incomes and their most basic rights under a misused and poorly monitored legal process that varies wildly in the state’s 83 counties.

While guardianship is intended for people who are physically or mentally incapable of running their own lives, an Associated Press study found that this obscure legal process is being used routinely by:

- Hospitals, to discharge elderly people into nursing homes or remove them from life-support systems after their insurance runs out.

- Doctors, to protect themselves from malpractice suits.

- Nursing homes, to insure bills will be paid.

- The Michigan Department of Social Services, which is funneling people to professional guardians it considers undesirable.

As of June, more than 25,000 adults in Michigan were under guardianship, conservatorship or both, according to data collected from Michigan courts.

These guardianship rulings originate in Michigan’s 79 probate courts in hearings that often last but a few minutes but usually have lifetime effects.

There is so little monitoring once guardianship or conservatorship is granted, however, that bed-ridden elderly people are increasingly having their assets misused, in some cases plundered, by the very people who were appointed to protect them.

Courts say families of older people are becoming more reluctant to act as guardians. Filling part of the void are growing numbers of professional guardians. Among them are Detroit-area lawyer Alan May, a prominent Republican Party activist who acknowledges he provides no personal attention to his 400 wards, and the Rev. Charles Hilliard, the public guardian in Clare County, a for-profit private guardian in nine other counties and co-owner of a string of nursing homes.

--- NEW HAMPSHIRE Boasting One of the Nation’s Best Laws By WENDY MITMAN Associated Press Writer

CONCORD, N.H. (AP) - Nine years ago, the word of three ″inquisitors″ could determine whether an elderly New Hampshire resident was competent to marry, own property, decide where to live and travel.

All that changed in 1979, when repeated abuses and a growing awareness of the rights of the mentally retarded, handicapped and elderly prompted a drastic revamping of the state’s archaic guardianship law.

New Hampshire’s law is one of the best in the country at protecting elderly people who would otherwise stand to lose fundamental rights.

Nevertheless, there are problems, chief among them the inability of probate courts to keep up with the growing caseload, which weakens their safeguarding function.

The state law goes well beyond those of most other states by granting guardianships based on specific evidence of what a person can and cannot do, rather than just the testimony of psychiatrists and other doctors.

New Hampshire’s probate courts generally use an 11-item order detailing what the ward cannot do. The list includes: traveling or deciding where to live; consenting to medical treatment; giving gifts; possessing or managing property, and making contracts. Probate judges thus determine the least restrictive way for people to live.

--- FLORIDA Guardianship System Flawed, Overburdened By DAN SEWELL and RON WORD Associated Press Writers

MIAMI (AP) - Florida, with the nation’s fastest-growing large elderly population, has an outdated guardianship system that can allow those deteriorated mentally or physically by age and ailments to be stripped of their civil rights in assembly-line legal proceedings.

And the system often does little to monitor what happens to the people it has left virtually defenseless.

In Florida, where the guardianship statutes last were changed 13 years ago, The Associated Press studied more than 100 incompetency proceedings and guardianships and found that:

- Judges routinely declare people incompetent after minutes-long proceedings that the proposed wards rarely attend.

- Unlike guardianships of minors, which usually end automatically when the ward reaches age 18, the declaration of incompetency and guardianship is nearly always final.

- After the guardian is appointed to control the person’s life and finances, Florida courts usually pay little attention to what happens.

- State law requires the guardian to file an annual accounting detailing the finances of the ward’s estate and whether the ward has been visited and examined medically, but those requirements weren’t met in a third of the cases studied.

- In most counties, judges rely on the testimony of a few psychiatrists who make their conclusions after brief examinations. Those brief examinations, some psychiatric experts say, fly in the face of medical research that demonstrates more than 100 reversible physical or mental ailments that can temporarily produce symptoms such as confusion, disorientation and memory loss.

The records of the state court administrator indicate there are 20,380 adult guardianships open statewide, and that the number of guardianships opened annually has steadily increased, jumping from 4,737 in 1978 to 8,775 last year. An annual filing rate calculated by Florida State University researchers, and adjusted to reflect the AP’s finding that most wards live no more than two years, indicates 15,000 to 25,000 elderly, mentally ill or developmentally disabled people are under guardianships in Florida.

--- CALIFORNIA Significant Lapses Found in Monitoring California Guardianship By GEORGE GARTIES and LAURA CASTANEDA Associated Press Writers

California has created a system of safeguards for guardianship, including public investigators in each county, that is considered among the most advanced in the nation.

But an Associated Press study of randomly selected court files and dozens of interviews with social services experts, lawyers, judges and the guardians and wards themselves has found significant lapses in the process of guarding the guardians.

Among the findings:

- No central control exists for the system of conservatorship, and the methods and philosophies of those who administer it vary considerably from county to county. Still, the law has been overhauled and fine-tuned over the last two decades to protect elderly wards from physical abuse and financial exploitation.

- Once set in motion, the system tends to carry the elderly inexorably toward dependence and placement in nursing homes or other institution, whether they need it or not.

- Despite judicial scrutiny and the establishment of a corps of court investigators, it is still possible for a conservator to steal his ward’s money in California. One company that provides bonds for conservators sets aside a reserve of $2 million a year to cover default payments to wards.

No one place keeps track of conservatorships, but a county-by-county check found just under 30,000 active conservatorship cases, the majority involving elderly people.

″We have people who come from the East or the Midwest to California, the ’Golden State,‴ says Lura Otto Scoville, a former court employee who recently hung out her shingle as a professional conservator. ″They either don’t have families or they’re back East and they can’t come out here.″

Professional conservators take court-approved fees out of their wards’ estates in return for managing their money and their lives. For those without money or friends, there are public guardians in each county.

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