The American Taxpayer ends up paying the tab for
long term continued care for life of the ward under Medicaid and Medicare.
Because of the general aging of our population and the growing number of baby
boomers now becoming elderly there is a ballooning number of guardianship cases
reaching the court system. Guardianship allows these decision makers to
maximize profits for the case managers, medical professionals, agencies and
medical hospitals who provide the care. Crisis situations are created to maximize
Medicaid reimbursement and to allow additional extended hospitalization at high
rates. The ward is not permitted to make decisions for less restrictive care
and may be drugged with psychotropic medications to force compliance. The paid
fiduciaries often secret their wards away in nursing homes where they are kept
chemically restrained with unnecessary and dangerous drugs. Often family
members are denied any say in their care, and sometimes denied visitation. The
ward becomes a burden on the American Taxpayer for lifelong very expensive care
and then when no longer an easy patient to manage as a cash cow for the care
provider -- the ward is dumped into the street homeless to fend for themselves.
At this point, often concerned family members or friends are forced to provide
care without the benefit of the welfare monies which had been previously
depleted by the former guardians.
The system works with the cooperation of
uncaring/corrupt judges misuse the law and engage in blatant violations of due
process, civil/human rights violations. Often there is a paper trail of pretend
procedural due process in which the victims aren't always given notice of
hearings at which their competence will be adjudicated, aren't always allowed
to attend, and often don't have lawyers. If the court does appoint lawyers,
they are often closely allied with care providers and other professionals that
they do not even superficially represent the wards best interest. So court
proceedings are a sham -- just pretense. The overburdened court system values
efficiency and quick processing -- often refusing to even permitting the ward
to take part in the proceedings which are determining his/her future. There is
an entire industry of professionals who specialize in this very lucrative practice
which strips the wards' of their property, their liberty and often their very
lives. The attorneys often are too closely affiliated with other professionals
who make their living in this special area; and do not properly represent the
victims' interests. Corrupt judges do not apply the required evidential
standards in making adjudications of incompetency, and frequently fail to obey
the protective statutes, or include specific findings of fact.
Guardians and representative payees do not
always act in the best interest of the people they are appointed to protect.
Some have conflicts of interest that pose risks to incapacitated people. While
many people appointed as guardians or representative payees serve
compassionately, often without any compensation, some will act in their own
interest rather than in the interest of the incapacitated person. Oversight of
both guardians and representative payees is intended to prevent abuse by the
people designated to protect the incapacitated people.
There is little general oversight of
guardianship reporting and very little on the ground -- eyes and ears -- of the
court to insure that these vulnerable wards are properly cared for and not
abused. A majority of jurisdictions do not require personal visits to the incapacitated
individual. Financial resources are transferred to the guardians thus leaving
the individuals with diminished capacity in complete dependency on the
guardians' decisions. All of these trends combine to underscore the dire need
for oversight when fundamental rights. Proper and accurate financial management
of the incapacitated person's assets is critical, so courts also often require
systems to verify and investigate the financial information in accounting.
Some important statistics from U.S. Courts: (AARP 2006 report,
Guardianship Monitoring: A National Survey of Court Practices) Mechanisms
serving as the "eyes and ears" of the court are critical to protect
these vulnerable wards of the court. Only 27.6% said the court has a computerized
system to track the number of adult guardianship filings and dispositions and
identify problems. In some states the guardian must notify the ward annually of
his right to seek a restoration of rights and require the guardian to file a
proof of the notice. Since some incapacitating conditions may improve or
resolve completely, it is critical that the ward be notified so that he may
seek to limit the scope of the guardianship or have it dismissed altogether.
Some 43.4% of respondents said that funding for monitoring is unavailable or
insufficient. Nearly 20 percent of courts do not require annual accounting of a
ward's finances. Among courts that do collect such information, more than one
third do not have an official who is designated to verify the content of the guardians'
reports, and less than 20 percent verify every report. In more than 40 percent
of courts, no one is assigned to visit individuals under guardianship to
determine if they are being abused or financially exploited. In the AARP study
only 9.3% of survey respondents said the court maintains data on whether the
case involved elder abuse. Over one-third of respondents (34.4%) stated that no
one is designated to verify the information in reports and accounts. No one is
designated to visit the incapacitated individual and verify the information in
guardian's reports and accounts in 40.3% of jurisdictions. Only about a quarter
(25.9%) of reported that someone visits the person on a regular basis.
Does an accounting trigger an inquiry into an
incapacitated person's well-being if a possible problem is uncovered? Close to
38% of respondents said the court investigates in such a situation, 13.4% said
review of the financial information focuses only on whether the calculations
are correct, and 25.1% said that consideration of the individual's well being
in review of the accounting varies. Over two-fifths (43.4%) of respondents
stated that funding for monitoring is unavailable or clearly insufficient.
The role of the attorney for the incapacitated
individual in monitoring the person's well-being after a guardian is appointed
varies greatly. According to one-third of the respondents (33.1%), the court
dismisses the attorney after the appointment and has no further role. Only 7.5%
stated that the attorney remains the attorney of record and routinely stays
actively involved throughout the case, with others describing a lesser role.
Interaction between courts and community entities concerning guardianship monitoring
is relatively infrequent. When there are problems with the guardianship there
are few repercussions, in over a quarter (25.6%) of cases the court revokes the
appointment and appoints a successor guardian, and 16.0% of courts ask an
investigator or volunteer to obtain more information. But surprisingly even
when there are clear problems, no one visits the incapacitated individual in
the jurisdictions of 40.3% of those responding. (AARP 2006 report, Guardianship
Monitoring: A National Survey of Court Practices Guardianship by Naomi Karp,
AARP Public Policy Institute and Erica Wood, American Bar Association
Commission on Law and Aging).
According to a study in the Los Angeles Times,
more than half of all guardianship petitions filed by professional guardians in
Southern California between 1997 and 2003 were granted by the courts on an
emergency basis. Of these emergency appointments, 56 percent were granted
without notice to the proposed ward, 64 percent before an attorney was selected
to represent the ward, and a stunning 92 percent before an otherwise mandatory
court investigator's report. A Los Angeles Times investigation similarly
uncovered numerous instances of egregious abuse by guardians where evidence of
abuse was already in the courts' own files; most county courts in Southern
California ignored an online registry created to identify and track problem
guardianships. And gross over billing often occurred with the explicit approval
of probate judges, who must sign off on guardians' expenditures in most
jurisdictions. A Houston Chronicle investigation found that the court routinely
allowed guardians to charge their hourly rates typical for legal work when
performing even the simplest non-legal tasks.
Clearly, we must provide better oversight and
transparency into the guardianship system and provide guardian monitors with
human rights advocacy training provided by the courts - so as to keep the
guardians performing their job with ethical integrity.
References on Guardian
Abuse:
United States Government Accountability Office
GAO Testimony Before the Special Committee on Aging, U.S. Senate,
GUARDIANSHIPS, Little Progress in Ensuring Protection for Incapacitated Elderly
People Statement of Barbara D. Bovbjerg, Director Education, Workforce, and
Income Security, (202) 512-7215, September 7, 2006, GAO-06- 1086T.
Fields, Robin, Evelyn Larrubia and Jack Leonard.
"Guardians for Profit." Los Angeles Times (November 13-16, 2005).
Fields, Robin et al. "State Could Turn
Elsewhere for Conservatorship Remedies." Los Angeles Times (December 27,
2005).
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