Move Under Way to Reform Laws Covering Guardianship of Elderly

From a Pennsylvania courtroom to the Michigan Statehouse to the halls of Congress, lawmakers, judges and advocates for the elderly are seeking reform of guardianship laws that were exposed as harmful and exploitative in stories by the Associated Press.

In at least 13 states, work is under way that may tighten procedures that have stripped the elderly of their rights and left them at the mercy of others. Active in the effort are legislatures, bar associations and social service agencies.

In some jurisdictions, judges have moved to guard against the abuse of elderly wards by putting tougher controls on the legal steps necessary to put someone under guardianship.

“Awareness of this issue has certainly been raised,” said Nancy Coleman, staff director of the American Bar Assn.’s Commission on Legal Problems of the Elderly. “We have been asked in a number of states to clarify the issues.”

Guardianship, sometimes called conservatorship, is a legal tool to transfer decision-making powers from those too ill or too confused to handle their affairs.

In most states, people placed under guardianship lose nearly all rights, including how their money is to be spent, where they will live and what medical care they will receive.

An estimated 400,000 to 500,000 elderly Americans are under control of court-appointed guardians. The cases often are handled in probate courts.

The AP series, “Guardians of the Elderly: An Ailing System,” published in September, was the result of a yearlong investigation involving 67 reporters and editors. Hundreds of lawyers, elderly wards, guardians and judges were interviewed and case files from county courthouses around the country were analyzed.

The research showed that although guardians are usually appointed for the best of reasons, the supervisory system offers few protections for elderly wards.

Examinations of case files indicated that two-thirds of the wards had had no legal representation at their guardianship hearings. Forty percent of the files contained no medical evidence that guardianship was necessary. Fifty percent were missing accountings required by the courts to assure that an old person’s money is being spent properly.

The series resulted in calls for reforms as well as a congressional hearing into guardianship by the House subcommittee on health and long-term care.

The most sweeping proposal for change is advocated in a bill drafted by the committee chairman, Rep. Claude Pepper (D-Fla.). His bill, which goes before the House Judiciary Committee this month, would require legal representation for old people faced with guardianship and would establish clear guidelines for courts on what they should do to protect the property and personal rights of the elderly.

The bill would also require courts to establish evaluation teams to scrutinize proposed guardians and periodically check up on established guardianships.

The bill, drawn in part from recommendations by the American Bar Assn., would tie state compliance to federal highway funding.

“As the system is now, a convicted criminal is afforded more protection in the legal system than many elderly and infirm Americans under guardianship,” Pepper said. “There must be a set of minimum national standards to protect these people.”

Beside federal action, several states are revamping or considering changes in their laws:

--The Michigan House passed legislation requiring lawyers for those facing guardianship. Judges are to place fewer restrictions on wards and to periodically review cases to see if guardianship remains necessary. A second bill would prohibit nursing homes from requiring guardians for residents, a practice that forces competent people into guardianship. Both bills are before the state Senate.

--In Ohio, two proposed reform bills would increase protection for allegedly incompetent adults. One would require a court investigator to meet with each potential ward and report to court officials. The second bill would establish a public guardian system to care for incompetents who have no one to act as guardian.

--Oklahoma’s House and Senate have passed separate bills providing greater legal representation for old people facing guardianship. The legislation, now before a conference committee, would improve notification of pending guardianship action, limit the scope of some guardianships and require guardians to file annual reports on their wards’ status.

--California lawmakers are pushing to license professional conservators. In many Sun Belt states, increasing numbers of these private entrepreneurs are taking responsibility for elderly wards without nearby relatives. The investigation found that 25% of guardians had no family ties to their wards.

“There are people being appointed to do conservatorships that we know nothing about,” said California Assemblyman Lloyd G. Connelly (D-Sacramento). “That’s clearly wrong. There have got to be standards for these folks.”

Los Angeles Probate Judge Julius Leetham also called for reform. “If we license plumbers and other artisans, it seems to me maybe some minimum licensing standard could be set for conservators,” he said.

--Legislation being drafted in Pennsylvania would establish a public guardian’s office and limit some guardianships.

“Everyone I talk to seems to think we need a serious overhaul of the law,” said Linda Rhodes, state secretary of aging, whose department surveyed state judges on possible changes in the law.

--In New Mexico a joint legislative committee held hearings on guardianship and called for creation of a task force to recommend reforms.

--Several Virginia agencies are lobbying for changes in the state’s guardianship law in the upcoming General Assembly. One key request: elimination of the term “advanced age” from the statute, which makes a person subject to guardianship simply because he or she is old.

--In Washington state, King County courts are developing a computer program to learn how many people are under guardianship and to track down guardians, who in some cases have gone years without filing required financial reports. A group of Seattle lawyers is organizing a seminar to teach other lawyers how to handle guardianship cases.

--The Colorado State Bar Assn. is drafting legislation for its next legislative session that includes periodic review of guardianship cases and a more detailed definition of limited guardianship, which generally allows wards greater freedom.

Other state agencies are also studying guardianship laws with an eye to change.

In Utah, the Department of Social Services formed a 25-member task force of legislators, lawyers and doctors to recommend changes.

In Arizona, a governor’s council is examining failings in the system.

The Mississippi Council on Aging studied guardianship law and plans to ask the governor to establish a task force to study revisions.

Some courts are acting on their own. In Wilkes-Barre, Pa., Judge Charles Muroski created a form for an annual accounting of a ward’s finances, although the state doesn’t require it.

David Haas, clerk of Superior Court in Juneau, Alaska, is using computers to track guardianship cases and this month will start sending notices to all delinquent guardians.

“It should have been done all along,” Haas said.

Since the AP stories, cases continue to surface.

They include a Hungarian immigrant who fought her way out of a guardianship in Florida that friends say was established because she didn’t speak English, and an Ohio woman so frightened by one attempt to place her under guardianship that she was ready to flee to another state.

While courts deal with those cases, experts have found that concerned citizens are also responding. Coleman said the American Bar Assn. received three requests for grants to study guardianship in 1986. Last year it received 12 requests.