In the 20+ years I’ve been working in elder law and in almost that much time representing a busy Older Adult Protective Services unit, I’ve seen quite a few cases of exploitation, but most of those cases are not with court appointed guardians.
During the last several years, there has been more attention given to legal guardians who have acted badly. The question, highlighted by a recent New York Times article, is does this represent the rule or the exception. And since The New Yorker article came out last week focusing on guardianship issues in Las Vegas Nevada, I thought it may be worth a discussion.
Now this is my experience and it does not mean that there does not need to be changes, there does. But overall, in over 350 guardianships in which I have been involved, I can recollect less than 5 cases where a court appointed guardian acted intentionally in an unethical or immoral manner. If I have seen problems it is because the system never intended or planned for the number of incapacitated persons that we now have and never put in a system to support or fund the needs of those who have no one who can advocate for them. Understand that my perspective is based on the Pennsylvania guardianship system and other states may be doing a better job here.
First, other than local judges asking the right questions, there is no statewide system to vet guardians. There are no educational, experiential or licensing requirements. Most guardians are people who either got into the business because they have a clinical or social services background or feel that it is a business with a future because of the aging of society. Neither makes someone more or less able to do the job well as the best guardians are people who know their fiduciary obligation and honor it. No type or level of education makes you better at that.
But the issue with court appointed guardians is much bigger than simply background or training. PA has no means of compensating guardians. If someone is lucky enough to have funds, a guardian can get compensated up to $100 per hour in SE PA. This is the number approved by most courts. But frequently the person needing a guardian has little or no funds. And if they do have funds, their care needs usually eat up their funds pretty quickly so the guardian cannot get their hourly rate for very long.
Once an individual is in a nursing home and eligible for Medical Assistance, guardians are limited to $100 per month for all services they provide. This includes being on call 24/7/365 for all medical emergencies, psychiatric issues, financial issues, insurance and reimbursement problems, arranging for and consenting to necessary medical care and dealing with often adversarial family members. Rarely does this take less than 10-15 hours per month. So the professional guardian is paid minimum wage (or less). And this amount that is approved by the PA Department of Human Services has not changed since 1997. But let’s be fair, even in 1997, $100 per month was not a reasonable figure to be responsible for managing 100% of another person’s needs. In 2017, it is laughable and sad that our state cares so little about the people who need guardians and the guardians themselves that they let this situation exist. And they know it does and continue to ignore it.
And it’s not just DHS. If you look at the 1992 amendments to the guardianship statute, there are provisions for guardianship services agencies so the legislature knew of the need 25 years ago. They just chose not to address it or fund it. Also, while some local counties have made a real effort to increase oversight of and support for guardians, there is no clear structure, and again, funding, to watch over and support court appointed guardians. Judges learn of problems only after the fact when someone brings a guardian’s actions to the attention of the court.
In 2013-14, the National Association for Court Management published an “Adult Guardianship Guide.” I think that some jurisdictions — often on a county-by-county basis — are working harder to get ahead of any problems, as I witnessed when I was part of Pennsylvania’s 2013-14 Supreme Court Elder Law Task Force.
Guardianship related issues that we discussed when I was part of Pennsylvania’s 2013-14 Supreme Court Elder Law Task Force:
* Funding for Oversight: Most courts report they are understaffed and short on money; adding duties to existing court staff is difficult if not impossible.
* Training Prospective Guardians: Again, funding and personnel are the issues, both to design training programs for guardians and administer such training.
* Making Guardianships “Too” Expensive? In many regions, there is a serious shortage of prospective guardians, especially where family members are unable or unavailable to serve. If subject to increased training and reporting requirements, some guardians, whether they are from inside or outside the family, may be less likely to serve, and there may not be a way to compensate them adequately for these duties.
* Conflicts with Family Members: In some instances, courts have declined to appoint a family member as a guardian because of concerns about trustworthiness of that individual. Family members sometimes challenge actions of court-appointed guardians for personal reasons unrelated to the ward’s needs. Where money is involved, family member objections are frequent.
There is no easy answer because this is not an easy question.
As has been the case with long term care costs and other issues, demographics and medical science has moved faster than our ability as a society to address people who are living 20+ more years than we ever thought they would. But without proper training, requirements and funding for guardianship services we are going to be (or are already) in crisis. No one should be asked to be a guardian for free and it cannot be done properly for no money. Court appointed guardians are being more and more selective about the cases they take because they are not in a position to give away their services. Soon the system will be crushed under its own weight and like so many other issues in our society our procrastination will be our downfall.