Turning to other states for a remedy for guardianship abuse

Los Angeles Times writers: Robin Fields, Jack Leonard and Evelyn Larrubia had done an excellent job in highlighting a variety of abuses within the Los Angeles system. It is by a stroke of luck that I have a copy of their article that followed the series of articles written in 2005 on this subject.

Back in October 2001 an unsigned letter arrived at the Arizona Supreme Court. It was alleged in that letter that a professional guardian, the director of a non-profit Tuscon firm was stealing from his elderly and disabled clients.

After the letter was received the court’s fiduciary unit sprang into action. The manager of the unit interviewed the firm’s employees and started digging through court records and boxes of cancelled cheques. It was discovered that the guardian had taken nearly $3000 from a developmentally disabled man for an electric bed that was never purchased, and the same client paid $1000 for a fundraising dinner never attended. To the credit of the unit it took 2 months to have enough documentary evidence to issue an emergency suspension of the guardian’s license. The license was later revoked. The work of the unit also triggered a criminal investigation by the state attorney general’s office, which led to felony theft charges against the guardian.

Without a doubt if the unregulated California system had the same set of procedures in place then the professional conservators could be held accountable for the theft of the possessions of their clients. The problem in California is that there is no agency that is responsible for investigating the complaints against these agencies.

The Los Angeles Times reporters in their excellent investigation discovered that professional conservators often gain legal authority over elderly people without their knowledge or consent, taking control of their lives at jarring speed. Some of these conservators neglected their wards, isolated them from relatives and ran up excessive fees. Others used their new found power over the seniors’ estates to benefit themselves, their employers and friends. The state’s probate courts which are charged with monitoring their work, overlooked incompetence, neglect and outright theft.

The State of California has been left with a system in tatters, especially when the underfunded public guardian’s office was forced to turn away seniors referred to them for protection. What California lacks is the legislation to put an oversight authority in place.

Dave Jones, a member of the Assembly in California and a former legal aid attorney has put forward a bill that follows the lead taken by Arizona. The proposal was to license professional conservators, and create a state regulatory board to oversee them. It would also require the courts to audit their work. Jones also wanted to create an ombudsman program for seniors under conservatorship similar to the one for nursing home patients.

Other steps being taken include the Judicial Council of California establishing a task force to study laws on conservatorship. The focus really needs to be on emergency conservatorships, looking at both the rules and the judges’ discretion in how the rules are applied.

There are many issues that have been highlighted, thanks to the Los Angeles Times, and those issues are quite disturbing for those involved. The judges have been granting the emergency appointment on the day that the professional conservators ask for them – and without hearing from the part involved. What has been ignored by these judgements is that adults are entitled to attend the emergency proceedings and in most cases the people involved were not even formally notified of the proceedings. The judges were guilty of waiving the requirement after the conservators claimed the prospective clients were too feeble or weak to attend court. Seniors were often placed in the hands of these unscrupulous conservators before attorneys were assigned to represent them, or court investigators could assess whether the conservatorship was in fact needed.

This situation has been remedied in Texas where the law requires that prospective wards are given notice of emergency guardianships and that they must be assigned attorneys before courts can rule on their cases – that is a very big step in the right direction. In practice, in Texas the new rules have almost eliminated emergency guardianships. When seniors are at risk, Adult Protective Services seeks strictly defined temporary authority to get them medical care or restraining orders to stop suspected thieves from accessing their bank accounts.

Other issues that need to be considered with regard to reform include:

1. limiting the power of guardians;
2. ensuring that prospective wards mental capacity is properly evaluated;
3. full medical evaluation of the prospective ward;
4. ensuring the finance is available to put in place a proper regulatory system.

The elderly within society deserve better treatment than what has been conveyed in the reports done by the Los Angeles Times. It would be interesting to see if there have been further developments – something that prevents a Schiavo situation where the husband wants his wife dead and the probate judge rolls over and agrees to legal murder.