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Are We Protecting the Vulnerable? Conservators and Guardianship Provisions Under Attack

Are We Protecting the Vulnerable? Conservators and Guardianship Provisions Under Attack

In Iowa, an accountant who had been appointed conservator for a woman with dementia, was convicted of stealing $150,000 from his ward. It was his third conviction for theft.

In San Antonio, an 85-year-old woman claimed she was held against her will for 11 months by a daughter who had "secretly activated a power of attorney and taken control of most of her mother's assets," according to a newspaper report. A battle for jurisdiction over the woman's case is underway pitting courts in New Jersey, her legal residence, against those in Texas, where the daughter resides.

A Canton, Ohio, nonprofit corporation that serves as the property guardian for between 200 and 400 individuals was the subject of a four-part series by the local newspaper that claimed the firm squandered wards' assets, paid itself for services out of wards' estates before getting court approval, and sold homes and other assets belonging to its wards to local appraisers. According to the newspaper, the firm's employees obtained appointments as guardians in order to get around laws prohibiting corporations from serving in that function.

The Los Angeles Times published a four-part series last year, detailing abuses in the public guardianship system. The paper found that so-called professional conservators were obtaining court appointments granting them life-and-death decision-making authority over individuals they had never met, people who, in some cases, were competent to handle their own affairs. Some of these guardians and conservators were accused of using wards' assets for their own gain, and nearly all were operating without scrutiny from the courts that appointed them.

Indeed, guardianship laws-the provisions aimed at ensuring that elderly and incompetent individuals receive the necessities of life (including medical care and financial protection)-are drawing fire around the country amid charges of abuse, fraud and civil rights violations.

Because the vast majority of wards protected under guardianship or conservatorship orders are among the most vulnerable members of society-with mental illness, mental retardation, and Alzheimer's disease or dementia accounting for 82% in a recent study-they are often unable to fight back. If the system designed to represent their interests fails, they have nowhere to turn.

Guardianships and conservatorships were created to fill a void for people who were unable or unfit to take care of themselves. Originally established to look after the needs of orphans, the role of the guardian has expanded in recent decades to encompass seniors and other individuals deemed incompetent by the courts or society.

A 2005 study by the American Bar Association found:

Public guardianship programs serve younger individuals with more complex needs than 25 years ago. Our 2004 survey found that individuals age 65 or over constituted between 37% and 57% of public guardianship wards, while those age 18-64 comprised between 43% and 62% of total wards. Younger clients include a range of individuals with mental illness, mental retardation, developmental disability, head injuries and substance abuse-the incidence of which are rising in the general population. Some may have involvement in the criminal justice system. In addition, many older clients may have a dual diagnosis of dementia and severe mental illness-and many individuals with mental retardation or developmental disabilities are aging. For instance, interview respondents in Kentucky reported, 'The typical clients, older women in nursing homes, are now only half of the caseload;' and 'clients are younger and have many more drug and alcohol problems.' Public guardianship used to be regarded as a custodial program, but no longer. Complex cases involving people with challenging behavioral problems are much more labor intensive than the previous population set.

The Bar Association found that most states are not prepared to deal with the needs of their wards.

Public guardianship programs are frequently understaffed and under-funded. Virtually all states reported that lack of funding and staffing is their greatest weakness and greatest threat. The study identified staff to ward ratios as high as 1:50, 1:80 and even 1:173. Caseloads are rising, but program budgets are not rising commensurately, and in some cases staff positions are frozen. ... [C]ases frequently are more complex than 25 years ago, with more individuals with challenging behavioral problems, substance abuse, and severe mental illness, all requiring a higher degree of staff oversight and interaction. Some... respondents revealed high levels of frustration with an overload of vulnerable individuals in dire need and little ability of the program to respond adequately. Some reported 'staff burnout,' 'judges not sympathetic to the high caseload problem,' 'more labor intensive cases,' 'not enough time to do proper accounting,' 'not enough time to see wards often enough,' 'too few restoration petitions,' and 'prohibitively high caseloads preventing a focus on individual needs.' Eleven states estimated the additional funding that would be needed to support adequate staff-ranging from $150,000 to $20 million.

In California and other states, the void created by inadequate funding and oversight has led to a golden opportunity for outsiders to exploit the system. Attorneys, accountants, health care providers and private citizens are obtaining guardianship appointments with no supervision.

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