Fleming & Curti, P.L.C. - American Guardianship Process Needs Review and Revision

OCTOBER 9, 2006 VOLUME 14, NUMBER 15

American Guardianship Process Needs Review and Revision

The American legal system for securing control over another person’s finances or health care—that is, the guardianship and conservatorship system—has been the subject of a fair amount of public scrutiny in recent years. From California’s recent adoption of a licensing and monitoring system for conservators, to the tabloid-generating fight over guardianship of the aging Brooke Astor, newspapers and magazines are filled with stories suggesting the system is failing. This week Elder Law Issues asked nationally-known guardianship expert Prof. Rebecca Morgan to fill our readers in on some of what is going on in guardianship and conservatorship across the nation. She reports:

"On September 7, 2006, the Senate Special Committee on Aging held hearings on the guardianship system in America. The hearing was titled "Exploitation of Seniors: America’s Aging Guardianship System." Perhaps motivated somewhat by the Astor case, the New York case involving the dispute between the son and grandson of the very famous, and very wealthy Mrs. Brooke Astor over her care and well-being, the hearings focused on the issues in the United States’ current system of guardianship and examined how the passage of the Elder Justice Act (EJA) might help alleviate some of the abuses in the system. The EJA is designed to create a coordinated approach to prevent, study, discover, treat and prosecute elder abuse, and to provide funding for these various activities.

"Those testifying before the committee included an attorney in the Astor case and a representative from the Government Accounting Office (GAO) who discussed the GAO report issued in 2004 about the problems in guardianships and the recommendations made by the GAO. An Ombudsman from Missouri testified about examples occurring in various states, and the role of the federal government in fighting abuses in guardianships. A probate judge from Florida testified about the due process protections and oversight of guardians he has implemented in his court. The executive director of the National Guardianship Association (NGA) rounded out the hearing by testifying about efforts made by NGA to improve the state of guardianship practice, and how involvement at the federal level might help alleviate some of the abuses.

"Of course, the Astor case is not the only high-profile case regarding the care of an elder by a family member. In fact, oftentimes, family disputes happen in cases that never are brought to the attention of the public. More and more it seems that the elder is caught in a tug of war between family members fighting over the elder’s care, and perhaps more so, the elder’s money.

"Many elders can do advance planning to minimize the chance of being under a guardianship. Arranging their assets, executing a health care power of attorney, and an advance directive can go a long way to minimize the chance of needing a guardian. Some may even designate an individual as their preferred choice for guardian in the future, should the need arise.

"Of course, no plan is fool proof and some people will need guardians in later life. Many states have already adopted oversight and procedures designed to safeguard those wards under the jurisdiction of the courts. The National Guardianship Association advocates for safeguards, including education and training of guardians and increasing the public’s awareness.

"Guardianship law is state-specific, and there has not been much involvement at the federal level, although passage of the Elder Justice Act would help with funding, research and coalitions. Some of the safeguards implemented by states include mandatory appointment of an attorney for the alleged incapacitated person and typical due process protections, such as notice and the right to be heard. Background checks of proposed guardians (including criminal background checks), educational requirements for guardians, bonding, reporting and other court oversight have been effective at fighting abuses. Monitoring of established guardianships has been an effective tool in minimizing the abuses that may occur once a guardianship is established. Other safeguards are in place in many states that go a long way to minimize abuses and to catch those who are not performing their duties as guardians. Adequate funding and court personnel are critical components to make sure the safeguards in place in the laws are being applied to every guardianship case."

[Professor Morgan, incidentally, holds the Boston Asset Management Faculty Chair in Elder Law at the Stetson University College of Law in St. Petersburg, Florida. She is a past president of the National Academy of Elder Law Attorneys and one of the co-authors of the leading treatise on elder law, "Tax, Estate & Financial Planning for the Elderly," published by LexisNexis. Perhaps most importantly, she is an invaluable resource for elder law practitioners and seniors themselves, and we at Fleming & Curti, PLC, are proud to count her as a close friend.]

In many ways Arizona is ahead of much of the rest of the country in monitoring guardianship and conservatorship matters, and Pima County (the Tucson area) leads the state. That is not to say that sufficient resources have been made available to adequately protect seniors and the disabled from abuses they might suffer under a court-ordered guardianship or conservatorship, but the result of hard work and dedication on the part of those involved in the system has been better oversight than is found in many other jurisdictions. Among the steps taken in Arizona (and particularly in Tucson):

Arizona was the first state to adopt a mandatory certification process for professional guardians. While that does not prevent abuse, it does limit the number of professionals and ensures that each one receives at least some instruction on the duties of a fiduciary.
Arizona law requires appointment of an attorney for the proposed ward in every adult guardianship or conservatorship proceeding (unless the ward has counsel of his or her own choice). In almost every case, a court-appointed investigator is also sent to visit the proposed ward and interview family members and others familiar with the facts of the case.
Every conservator (of the estate) is required to account for management of his or her ward’s funds annually. In Tucson, that accounting must include a copy of actual bank statements to help protect against falsified information.