Guardians of the Elderly: An Ailing System Part I: Declared 'Legally Dead' by a Troubled System

Undated (AP) _ The nation's guardianship system, a crucial last line of protection for the ailing elderly, is failing many of those it is designed to protect.

A year-long investigation by The Associated Press of courts in all 50 states and the District of Columbia found a dangerously burdened and troubled system that regularly puts elderly lives in the hands of others with little or no evidence of necessity, then fails to guard against abuse, theft and neglect.

In thousands of courts around the nation every week, a few minutes of routine and the stroke of a judge's pen are all that it takes to strip an old man or woman of basic rights.

The 300,000 to 400,000 elderly people under guardianship can no longer receive money or pay their bills. They cannot marry or divorce. The court entrusts to someone else the power to choose where they will live, what medical treatment they will get, and, in rare cases, when they will die.

The AP investigation examined more than 2,200 randomly selected guardianship court files to get a portrait of wards and of the system that oversees them.

After giving guardians such great power over elderly people, overworked and understaffed court systems frequently break down, abandoning those incapable of caring for themselves, the AP found.

A legal tool meant to protect the elderly and their property, guardianship sometimes results instead in financial or physical mistreatment, the AP found.

''Guardianship is a process that uproots people, literally 'unpersons' them, declares them legally dead,'' said Dr. Dennis Koson, a law and psychiatry expert in Florida. ''Done badly, it does more hurting than protecting.''

That danger was confirmed by the AP investigation, which involved staff reporters in every state. The AP found:

- Elderly in guardianship court are often afforded fewer rights than criminal defendants. In 44 percent of the cases, the proposed ward was not represented by an attorney. Three out of 10 files contained no medical evidence. Forty-nine percent of the wards were not present at their hearings. Twenty-five percent of the files contained no indication hearings had been held.

Some elderly people discover they are wards of the court only after the fact.

A Bennington, Vt., woman learned she was under guardianship only when told by her nursing home she could no longer spend money without the permission of the guardian, her daughter. A Fort Lauderdale, Fla., woman found she had a guardian only when she was turned away from the polling booth.

''Guardianship became a rubber-stamp procedure over the years,'' said Indianapolis Probate Judge Victor Pfau, a leader in a judicial reform movement.

- While laws in 44 states require guardians to file regular accountings of the ward's money, they were missing or incomplete in 48 percent of the files examined. Thirteen percent, more than one in 10, of the files were empty but for the initial granting of guardianship powers.

Such files are critical to the court's knowledge that wards are being cared for and that their money is being spent properly. Without the files, the door is open to abuse.

So a court in Missoula, Mont., had no record of what happened to the $131,000 estate of a 92-year-old man found ill and alone in a cabin in 1985 after a couple described as ''friends'' became his guardians. And a Pittsburgh court learned of a decade-long misappropriation of $25,000 in Social Security checks only when a state hospital complained of non-payment for a ward's care. The ward's guardian, an attorney, was disbarred in 1985.

- What reports are filed are rarely audited or even checked by probate courts, which handle guardianships in most jurisdictions. One of the last rungs on the courthouse ladder, often dealing more with affairs of the dead than of the living, probate courts are swamped. Many can't even guess how many guardianships they have on file.

''I don't know where the wards are, who's caring for them, what they're doing,'' said Probate Judge Anthony Sciarretta of Providence, R.I. ''I have no support staff, I have no welfare workers, I have no aides, I have no assistants and I have no money.''

In San Diego, judges routinely signed off on annual accountings filed by lawyer Robert Kronemyer for the estate of his ward, Joshua Baily. Not until after Baily's death did a friend become suspicious. Kronemyer was convicted in 1983 of theft and perjury for taking hundreds of thousands of dollars in cash and bonds.

Most guardians are dedicated, caring people who see that their wards get proper food, clothing, shelter and medical attention. A good guardian can protect against greedy relatives and scheming con men.

Yet if the nation's elderly population jumps 22 percent by century's end, to nearly 35 million, as projected, the problems of guardianship are likely to grow.

While guardianship procedures vary, even from county to county, the laws follow a pattern: A petition is filed, usually by a family member, alleging a person is incompetent and no longer able to care for himself or herself. The person is evaluated, and the court rules on the petition.

If granted, guardianship reduces these ''wards of the court'' to the status of legal infants who may no longer drive a car, vote or, in many states, hire an attorney. ''A prisoner has more legal rights,'' said Winsor Schmidt, a Memphis State University professor who has studied guardianship in 13 states.

- Once shuffled into guardianship, the elderly have few ways out. Some states bar wards from hiring attorneys because they have been ruled incompetent. Twenty-four states require courts to regularly check the status of the wards. Some judges are reluctant to reopen cases to remove guardianships.

In Grand Junction, Colo., Vivian Steiner, 68, has written to the judge who placed her under guardianship, contending she has recovered from medical difficulties and can leave the nursing home where she is confined. Pitkin County District Judge J.E. DeVilbiss hasn't answered her, standing by his 1984 ruling that she is incompetent.

''The guardianship is done and it's done unless someone calls it to the court's attention,'' DeVilbiss said.

The AP found institutions are increasingly using guardianship as an answer to a variety of problems. Hospitals, faced with new Medicare regulations limiting coverage for extended care, use guardianship to move patients to nursing homes. Nursing homes require guardianship to ensure someone will pay the bills.

But critics challenge using such a harsh remedy to guarantee payments.

''You don't need someone to strip you to the rights of a 5-year-old to check you into a nursing home,'' said David Grant, director of the Guardianship Diversion Project, a Los Angeles group promoting less restrictive alternatives for the elderly.

Baltimore courts now use an expedited procedure that allows hospitals to file petitions of guardianship on elderly patients, then move them to nursing homes before the petitions are approved.

While the hospitals and the courts say this is simply an efficient way of handling patients, Jerry Dresner, an attorney with the Maryland Disability Law Center, calls it ''after-the-fact due process.''

Nursing homes, hospitals and doctors are also using guardianship as a hedge against liability in tough decisions such as amputations and disconnecting life support systems.

''If I ran a nursing home, I'd insist on it,'' said Pat Graves, a social worker who runs a senior citizens program at an Albuquerque, N.M., hospital.

Federally mandated adult protective services programs in each state have created a cadre of social workers vigorously checking reports of abuse, ''self-neglect'' and irrational behavior among the elderly. But their eagerness sometimes leads them to file guardianship petitions on old people who simply may be having trouble keeping house or keeping track of bills.

''The whole problem with guardianship as it is practiced today is that they take someone who's got a bit of a problem and put them away,'' said Theresa Bertram, director of the Cathedral Foundation, a Jacksonville, Fla., charity offering support services to try to keep the elderly out of guardianship.

As America ages, the system faces change. Medical advances have led to longer lives - and more cases of incompetence. As social services are pushed to the breaking point, many turn to guardianship. The AP has even found petitions for guardianship in AIDS cases filtering into probate court.

To be sure, most guardians are honest and well-intentioned. Many judges defend the present system as humane and effective, arguing that guardianship is a family business and not in need of outside supervision.

But guardians are not always family members. The AP found one-quarter of today's guardians are friends, attorneys, professional guardians or government agencies with no familial relationship to their wards.

A new industry has cropped up of professional guardians, who bill their wards' estates as much as $65 an hour for their services. The AP has found such entrepreneurs with responsibility for 100, 300, and in one case 400 wards.

''I could start a business, put people on computer, and business would be booming,'' said Seattle lawyer Kathleen Moore, who works part-time as guardian for seven elderly wards.

Those who can't pay are herded into a growing number of state or county public guardianship offices, with caseloads reaching several hundred per social worker.

Guardianship's problems have led to some reform attempts in recent years.

California has overhauled its statutes on guardianship, which for adults is called conservatorship. In 1981, the state began funding probate court investigators who now regularly examine guardianship petitions and check up on guardians. State funds also pay probate attorneys to review accountings and other filings.

''The Legislature was of the opinion that maybe a lot of people under conservatorship didn't need to be,'' said Timothy A. Whitehouse, assistant supervising probate attorney in Los Angeles.

Last year, a meeting of probate judges sponsored by the American Bar Association and the National Judicial College drafted a list of reforms, including recommendations that would require due process rights for the proposed ward and closer monitoring of guardianships by the courts.

Others look to alternatives. Federal funds support the Guardianship Diversion Project, which promotes programs to pay bills and manage money for the elderly without going to the extreme of guardianship.

''Guardianship is an important, useful service that is inappropriate to almost everybody,'' said Grant. ''There's going to be a difficult period in which people learn that guardianship just doesn't work.''

For whatever reason the guardianship petition is brought, it moves speedily through overtaxed courts that often sidestep the civil rights safeguards so zealously protected in other types of courtrooms.

When held, guardianship hearings sometimes last only minutes. Medical investigators and court-appointed examiners often perform perfunctory checks of proposed wards to see if guardianship is needed.

Richard Shamel, a Deerfield Beach, Fla., attorney who specializes in guardianship, said it takes him 10 to 15 minutes to determine if someone needs a guardian. ''About half of those you see, they're just staring at the ceiling,'' he said.

Competency examinations, when they are done, are performed by people with varying degrees of expertise, including urologists, osteopaths, social workers, nursing home employees and retired court clerks. Their decisions may be based on such tests as the proposed ward's ability to recall the names of the last three presidents or perform simple math problems.

The criteria used by these investigators are often sketchy. People can be placed under guardianship because they are alcoholics or diabetics. Often, in the eyes of the court, being old and spending money foolishly is enough.

''You've got a fundamental issue of human rights involved here,'' said Barry Lebowitz, who heads research on aging for the National Institute of Mental Health. ''People are protected in their right to make foolish choices.''

Whatever the criteria, and whoever is making the judgment, in 94 percent of cases examined by the AP the petition for guardianship was approved.

''The system is just completely weighted against the proposed ward,'' said Elise Donnelly, who studied guardianship in North Dakota for the state Department of Human Services. ''Once the petition is brought, you have to go in and prove you're not incompetent.''

Said Judge Pfau from Indianapolis: ''The attorney (for the guardian) wants the judge to just sign his name. He doesn't want notice (to the proposed ward), he doesn't want a 14-day wait, or a visitors program.''

But the pressure to approve guardianships is strong. ''If I'm too tough on attorneys, I'm not going to get elected again,'' Pfau said, ''and that might sound cowardly to say that.''

Many judges feel more court oversight would intrude on what they see as a family affair. Guardianship is generally there, they say, to help sons and daughters care for their parents.

''My personal feeling is it's a family responsibility. Families take better care of people than government,'' said probate Judge Melvin Rueger of Cincinnati. ''Everyone presupposes that a son or daughter abuses a mother or dad and I just don't believe it.''

Yet the AP's investigation found example after example of relatives dipping into the ward's money for their own use. In most cases, the courts give tacit approval.

In Seattle, two nephews of a wealthy elderly woman now living in a nursing home have been paying themselves $800 monthly salaries for guardianship, plus cars, travel and gifts of $20,000. The court has approved the expenditures.

In Arkansas, a woman who was named guardian for her father-in-law in 1981 charged expenses that included $50 for one hour's work on ''preparation for arrangements'' for the man's burial, another $50 for an hour's work relaying word of the man's death to relatives and $71 for mileage to the out-of-town funeral.

In Oklahoma, a state agency discovered that a woman's former husband had himself appointed her guardian, discontinued his alimony payments to her, collected her Social Security payments then left the state.

San Diego Superior Court Judge Paul Overton recalls a case where a son took his mother, also his ward, to Thanksgiving dinner at a relative's home.

''He charged her for mileage for coming and going, and charged her $8 and something for the dinner,'' Overton said. ''One thing that really touches my heart, or I should say touches the seat of my pants, is to see a child charging to take care of a parent.''

Whether children or strangers are the guardians, the end result for many wards is removal from their homes and confinement to nursing centers, the AP found. More than one-third of the wards seen in case files lived in their own homes before guardianship; about the same number was moved sometime during guardianship. Almost two-thirds of the wards lived in nursing homes at some time during guardianship.

For the guardian, a nursing home generally offers the easiest and most efficient way to care for the ward. Often wards are near death and round-the- clock care in an institution is needed. But sometimes it's overused.

''If you run a person through the guardian door into a nursing home,'' said Jim Wade, a former probate judge in Denver who has returned to private law practice, ''the deprivation of rights is complete,''

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Next: Due Process - Do Wards Get Their Day in Court?