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Protecting the Protected: Overseeing Adult Guardianship
Judy McKee, End of Life Healthcare Counsel, Sean M. Douglass
According to the most recent statistics, by 2030, there will be 71.5 million people living in the United States who are 65 or over. With this graying of our population, the number of seniors with cognitive disabilities will also increase with a concomitant increase for the need for guardians. Guardianship for older adults, while designed to be protective, too often has resulted in harm rather than help for this vulnerable segment of our society.
States have, over the last 20 years, taken steps to tighten guardianship proceedings, ensuring that due process is observed and that accountability is tightened. The Minnesota legislature currently is considering H.F. 804, which would include a bill of rights for protected persons and other procedural safeguards. The year 2006 was an especially busy one for changes in state guardianship laws. Among the states tightening and strengthening their procedures were California, Florida, Georgia, Idaho, Kansas, Maine, Virginia, and Wisconsin.
However, even with the best laws in place, there will continue to be exploitation of incapacitated individuals. The dark side of guardianship often occurs outside of public view, with the protected individual being increasingly isolated from neighbors, friends, and even family members. Sometimes these issues erupt on the front page of newspapers such as happened with the fight over Brooke Astor’s guardianship when her grandson challenged his own father’s handling of affairs. Subsequently, Anthony Marshall, Brooke Astor’s only child, was indicted on theft and undue influence charges in a trial that is on-going in Manhattan. Even popular novelists have found this a useful theme on which to build a gripping plot.
The saga of then 95-year-old Emma France is an example of how even good intentions by state authorities can go awry. France was sent to the hospital in May 2007 by a Missouri county public administrator, concerned, evidently, that the elderly woman was not mentally capable of taking care of her finances after she had lost money in lottery schemes. She was deemed to be incapacitated and in need of a public guardian. The petition for guardianship, filed by county authorities, did not comply with state law in that it failed to include notification to France’s daughter, Delores Forste, or to any other relative. The “examining” physician later admitted that he signed a blank certificate. France’s appointed attorney, although knowing that she wished to be present at the hearing, decided that it would be “better” if she were not present.
France at some point called her daughter, who arrived from California and took her mother back to live near her. Missouri filed an arrest warrant for kidnapping whereupon California authorities placed Forste in jail for two weeks prior to extraditing her to Missouri. These charges were eventually dismissed. France filed a law suit against the attorneys for Rita Hunter, the public administrator in Jasper County who had initiated the hospitalization and subsequent petition for guardianship. This lawsuit has been dismissed. However, France’s lawsuit against Hunter is still pending.
There is evidently no allegation that Hunter initiated the guardianship procedure from anything other than genuine concern for France’s welfare. Unfortunately, the stream-lined procedure whereupon France was deemed incapacitated and minimal safeguards were followed may not be unusual when a seemingly urgent situation arises. An article analyzing emergency guardianship statutes appeared in the December 2008 of the American Bar Association’s (ABA) “Bifocal”. The article concluded that state statutes on emergency guardianship procedures remain uneven with some not meeting due process standards. It concluded by quoting a 2007 U.S. Senate Special Committee on Aging report that “emergency appointments, by their nature, immediately deny prospective wards their rights to due process.”
Security industry regulators have tackled the issue of dealing with elderly clients’ diminishing capacities by publishing a best practices report. Among the suggestions is that brokers be taught how to recognize clients in declining health and identify red flags of financial abuse. Some of these red flags include sudden, unexplained withdrawal of large amounts of cash, “shielding” by the caretaker so that the financial advisor is unable to talk to the client, and a client’s power of attorney being given to an inappropriate person. Advisers who live in states that have passed the model Uniform Power of Attorney Act may refuse orders from an agent if they have good reason to think that something is wrong. These situations are then reported to the state agency with responsibility to provide protective services to elderly citizens.
Other than tightening laws and procedures, what else could states be doing to ensure that this extremely vulnerable segment of our society is adequately protected from their court-appointed “protectors”? One approach, which has been tried by several states, is an adult guardianship and conservatorship mediation program. The Center for Social Gerontology pioneered training in this area; mediation has been used successfully to handle issues both within the traditional guardianship paradigm and as an alternative to guardianship. Another promising development is the use of emeritus pro bono attorneys to assist courts by providing both oversight and legal assistance. North Dakota is the latest state to pass emeritus rules that waive normal licensing requirements for qualified attorneys who offer to provide pro bono services. The ABA’s Commission on Law and Aging recently announced funding for programs using emeritus counsel in California, Oregon, Texas, Utah, and West Virginia.
In December 2007, AARP published a report, in conjunction with the ABA’s Commission on Law and Aging, that detailed practices some jurisdictions were using to enhance oversight of guardianship proceedings. The report followed an earlier survey by the ABA of court practices; this report found many courts did not have anyone designated to verify information provided in mandatory reports, that funding for oversight was minimal, technology was not being utilized effectively, and many jurisdictions had no one assigned by the court to visit individuals under guardianship.
The promising practices highlighted in the 2007 report fell within several categories: reports and plans, court actions, protection of assets, court review of reports, investigations and sanctions, and court links with community groups. Increasing the use of technology would greatly assist in the oversight mission of the courts. This would include standardizing guardian report forms, posting them on the Web, allowing e-filing that would be filtered through software with built-in red flags, automatic comparison with earlier filings, and alerts to court personnel when mandated filings are missing. In addition, software that would randomly select filings for more thorough auditing would promote more careful and thorough reports by guardians. A chilling effect against malfeasance would be created if courts followed through, as does Maricopa County, Ariz., by issuing felony warrants where there is evidence of legal abuse by a guardian. Suffolk County, N.Y., has developed a model guardianship court that integrates all pending cases involving incapacitated individuals and incorporates mediation, volunteer advocates, and a resource coordinator. Courts looking for volunteers to assist in oversight activities need look no further than their local AARP chapters and their local and state bar and ABA’s information on volunteer opportunities for emeritus lawyers.
In an era of diminishing resources and an increasing number of adults under guardianship, it is important that states develop innovative methodologies for ensuring that those who cannot handle their own affairs are protected, instead of ignored or ─ even worse ─ exploited, by the guardianship system.
 Much of the research for this article was conducted by Sean Douglass, who was an undergraduate intern at NAAG during the summers of 2007 and 2008. Sean will be attending law school this fall.
 Senators Gordon H. Smith and Herb Kohl, “Guardianship for the Elderly: Protecting the Rights and Welfare of Seniors with Reduced Capacity.” U.S. Senate Special Commission on Aging at 1 (Dec. 2007).
 Unfortunately, even public guardians fall prey to greed. Recently, a federal judge sentenced a former Buchanan County, Mo., public administrator to three years’ imprisonment for embezzling over $119,000 from Social Security payments intended for clients served by her office. Press release available athttp://www.usdoj.gov/usao/mow/news2009/lawson.sen.htm.
 See, e.g., Sue Grafton, “T Is for Trespass” (New York, G.P. Putnam, 2007).
 France v. Hunter et al., No. 08 AP-CC-00095 (Jasper County, MO).
 Angela Grady, “Emergency Guardianship Statutes: An Analysis of Legislative Due Process Reforms Since Grant v. Johnson”, 30 Bifocal 28 (2008). It is not clear whether the guardianship petition regarding Ms. France was conducted as an emergency procedure.
 Id. at 33, quoting supra n.1 at 12.
 Office of Compliance, Inspections and Examinations, Securities and Exchange Commission, North American Securities Administrators Association, and the Financial Industry Regulatory Authority, “Protecting Senior Investors: Compliance, Supervisory and Other Practices Used by Financial Services Firms in Serving Senior Investors” (Sept. 22, 2008), available at http://www.sec.gov/spotlight/seniors/seniorspracticesreport092208.pdf.
 Uniform Power of Attorney Act, available athttp://www.law.upenn.edu/bll/archives/ulc/dpoaa/2008_final.htm.
 See Rule 3.1 of the North Dakota Admission to Practice Rules.
 “ABA Commission Awards Funding for Pro Bono Indigent Guardianship Projects”, 30 Bifocal 55 (2009).
 Naomi Karp and Erica Wood, AARP, No. 2007-21, “Guarding The Guardians: Promising Practices For Court Monitoring” (2007), available athttp://assets.aarp.org/rgcenter/il/2007_21_guardians.pdf.
 Naomi Karp and Erica Wood, AARP No. 2006-14, “Guardianship Monitoring: A National Survey of Court Practices” (2006), available athttp://assets.aarp.org/rgcenter/consumer/2006_14_guardianship.pdf.
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