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Guardians of the Elderly: An Ailing System Part II: Many Elderly Never Get Their Day In Court

September 21, 1987

FORT LAUDERDALE, Fla. (AP) _ Billie sat at the table, trying to joke with the social workers and lawyers sitting around her. ″Are you talking about me?″ she asked the strangers who said they were there to help.

The man beside her, her lawyer she was told, softly explained she needed a guardian, someone who would handle the everyday worries.

If a person is a fool, let this person and his goods be under the protection of his family or his paternal relatives, if he is not under the care of anyone else.

- Twelve Tables of Rome, 449 B.C.

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″Does this mean I won’t be able to go back to where I live?″ the 74-year- old woman asked. ″I still want to get out and take care of my house and do shopping. I feel well enough to be on my own.″

Despite her doubts, Billie was declared incompetent and assigned a guardian: another stranger who would control her life, from where she would live to how her money would be spent. It took only a few minutes.

The informal judicial hearing witnessed by AP reporters in the Fort Lauderdale boarding home was not unusual. An average of 10 people a week are placed under guardianship in this community of retirees. Nationally, 300,000 to 400,000 senior citizens are under guardianship.

What was unusual was that Billie had her ″day in court″ at all.

A year-long investigation by The Associated Press found that senior citizens facing guardianship are often denied courtroom rights considered essential to criminal defendants and those being committed to mental hospitals.

A review of more than 2,200 cases around the country showed 44 percent of the elderly were not represented by attorneys; almost half did not attend their own hearings.

In fact, more than one in four cases had no hearings. And in places such as Cleveland or Charlotte, N.C., a proposed ward may not even get a judge - a court clerk conducts hearings and issues the ruling.

The AP also found laws vague in defining who needs guardianship, lax standards in determining the proposed ward’s medical and psychological status and insensitivity toward the elderly throughout the legal process.

Combined, these factors make it very easy to get a guardianship and hard for the elderly to defend themselves against the process.

″When somebody goes to jail, the court system has bent over backwards with due process. But there is no such thing with a guardian,″ said Ina Katich, a Denver expert on law and the elderly.

But the process of placing someone under guardianship is not just a question of legal rights. It involves issues of medicine, psychiatry, geriatrics and, importantly, society’s attitudes toward the elderly.

D’Jean Testa, a Legal Services attorney in Phoenix, recounts story after story of people who faced guardianship because their actions did not fit what society expects of older people.

In one case, a daughter sought guardianship for her mother because the elderly woman wanted to buy a camper and tour the country with a male friend. In another, a son sought guardianship to stop his father’s plans to remarry.

″If you’re old, you can’t be foolish,″ said Ms. Testa.

This bias is reflected in the wording of guardianship law and the way courts handle their wards.

Guardianship is granted when a court believes a person is incompetent: unable to handle his affairs or care for herself. But a survey by the American Bar Association found that in 25 states ″advanced age″ is enough cause to find someone incompetent. Other reasons are equally vague, from ″improvidence″ in Ohio to ″spendthrift″ in Massachusetts and ″habitual drunkard″ in several states.

″Advanced age just isn’t a good enough reason to appoint a guardian,″ said Gwen Bedford, a national director of the American Association of Retired Persons. ″You’ve got to tell the difference between someone who is just eccentric and someone who really is incapacitated.″

Advanced age was given as the reason for incompetence in 8 percent of the cases the AP studied.

While the competency of the elderly comes under close scrutiny, little is done to tailor the legal process to their special needs and problems.

Notices of guardianship petitions are often printed in hard-to-read legalese. For example, old people facing guardianship in Texas receive this notice calling them to court:

″... at or before 10 a.m. of the Monday next after the expiration of 10 days after the date of service of this citation by filing a written answer to the application of (petitioner) filed in said court on the (date) alleging said ward has no guardian and praying for the appointment of the person and estate of said ward. At said above mentioned time and place, said ward and all other persons may contest said application if they so desire.″

Such warnings, sent by mail or delivered by sheriff’s deputies with no other explanation, do little to inform senior citizens of their rights or the implications of guardianship.

Only 14 states specifically require that the elderly be informed of their rights and what freedoms they would lose under guardianship.

″People have the right to defend themselves and people need to know that,″ said Paul Wharton, an attorney with the Utah Legal Services Senior Law Center. ″What really ought to be considered is providing notice, like a Miranda warning. We give criminals warning, why not our parents?″

While the proposed ward’s medical status is the basis for determining incompetence, at least 11 states require no medical evidence other than the allegations of the petitioner. In fact, 34 percent of the cases examined nationwide by the AP showed no medical evidence supporting petitioners’ claims; in 16 percent, the only evidence came from the petitioners.

Tod Porterfield, an 83-year-old Albion, Ind., farmer was placed under guardianship and forced into a nursing home on the strength of a petition saying he suffered from Alzheimer’s disease. It was later discovered the allegation came from a social worker at a hospital where Porterfield was treated for stomach problems.

″No doctor ever diagnosed me,″ said Porterfield, who eventually had the guardianship overturned. ″I never talked to a doctor or an officer of the court.″

In some states, a simple note or fill-in-the-blank form from a family physician is enough: a Woonsocket, R.I., woman was placed under guardianship on the strength of a scrawled doctor’s note that read, ″She is incompitent (sic) in signing or managing her check.″

Courts in 11 states appoint visitors to examine the ward and report back to the judge. The skill of these visitors and the detail of their reports vary widely.

In California, trained court employees have a checklist of questions they must answer for the court. In Oregon, the AP found instances where the visitor was the secretary for the attorney bringing the petition. A special master in Phoenix said he appointed visitors recommended by the petitioner.

Few states define what doctors or visitors should look for or how they should conduct their examinations. Many diagnoses fail to explore whether the condition is temporary or chronic. In many cases the examining doctors are unfamiliar with the proposed ward’s medical history or what medication they are taking. Some doctors base their decision on non-medical determinations.

″Really, what is most important to me is whether the person could be victimized, whether the guardian will help the person,″ said Dr. Cesar Hernandez, a psychiatrist who performs examinations for the Broward County, Fla., courts.

Hernandez also considers the condition of the person’s home and his appearance.

″You talk to the person,″ he said. ″You see if they are well-groomed, overweight, underweight, antagonistic, depressed. Can they make good conversation?″

Case files reveal brief, often perfunctory medical examinations with even briefer diagnoses: ″forgetful,″ ″diabetes″ and others.

Medical experts note that because the elderly are sensitive to changes in medication, they may seem to be foundering when the condition is actually reversible. A simple vitamin deficency can cause temporary memory lapses.

″What some doctors want to do is have some sort of cookbook form where they could diagnose the patient in five or 10 minutes,″ said Dr. George Grossberg, director of geriatric psychiatry at St. Louis University School of Medicine who is studying guardianship examinations for the National Institute of Mental Health.

During examinations, some doctors assume the role of inquisitor, and elderly patients may react nervously, Grossberg said. ″It’s easy to jump to conclusions when you push people.″

As terrifying as the legal process can be, only 28 states mandate legal representation for people facing guardianship; 12 leave it optional, and 10 require no representation.

Other studies made similar conclusions to the AP’s finding. A look at Los Angeles courts by the National Senior Citizen Law Center found that 96 percent of proposed wards are not represented.

On the other hand the person seeking to become a guardian is nearly always represented by an attorney whose fee, along with that for the proposed ward’s court-appointed attorney, is charged to the elderly person.

″It’s ironic the very person that should be represented at the hearings is not represented by counsel,″ said Paul Zaverella, a Pittsburgh judge.

But when attorneys are appointed, sometimes picked from a courthouse list and paid a limited fee, they often serve only as rubber stamps.

In Fort Lauderdale, court-appointed attorneys receive $125 to conduct a brief interview. The attorneys often waive the entire hearing process when they believe guardianship is best for the person.

″You just talk to them at great lengths for five to 10 minutes and you can tell if they’re competent or not,″ said Victor DeBianchi Jr., a Hollywood, Fla., attorney assigned by the court to represent Billie.

One Fort Lauderdale file contained a medical examination saying an elderly woman was more coherent in the morning than in the evening. Yet the attorney appointed to represent the woman interviewed her at 7:20 p.m., found her incoherent, waived the hearing and, in effect, made the judge’s decision.

Dr. Dennis Koson, a forensic psychiatrist, looked at 200 guardianship cases in the Broward County, Fla., court system as an associate law professor at Nova University. He found that court-appointed attorneys told judges hearings would not be necessary 90 percent of the time.

In 44 percent of the cases, the proposed ward’s attorney served a dual role as a member of the examining committee called upon to determine the person’s competency.

″That was shocking,″ said Koson. ″Their own attorney was making the determination.″

Attorneys in Fort Lauderdale were waiving clients’ rights so often that the state appeals court this summer ruled that hearings must be held in all guardianship cases.

″What the decision says is that an attorney cannot give away a client’s rights, something that was done regularly,″ said Nancy Trease, the Legal Aid attorney who brought the suit that led to the ruling.

Attorneys who want to help clients trying to fight guardianship often find themselves at odds with judges who believe lawyers should do what they think best for the proposed ward.

″The judge wants to know what you’re doing in his courtroom wasting time,″ said Steve Feldman, a Philadelphia lawyer.

Judge Francis Christie, a Miami probate judge, sees no need for an attorney’s advocacy if it is clear the proposed ward needs help.

″I have told the attorneys that they should not formulate and adopt the Clarence Darrow philosophy,″ he said. ″If a person is incompetent they should have a guardian. That should be obvious to the attorney once they meet the client.″

Casual attitudes toward the rights of the elderly are repeatedly reflected in guardianship case files. In Mississippi, the AP found a case in which Lenore Prather, now a state Supreme Court justice, had presided over a guardianship case, her husband had served as the petitioner’s attorney, and the proposed ward was also a relative.

When asked about the case, Prather acknowledged she should have followed state bar association ethics guidelines and noted the family ties in the court record.

″It was a family situation where there was no contest,″ Prather said.

Many of these factors were at work when two attorneys, two social workers and a probate master, an attorney deputized to serve as a judge, held the hearing to determine Billie’s competency.

The hearing came about only because one psychiatrist on the three-person examining committee found her competent. DeBianchi, Billie’s attorney, originally waived the hearing, telling the court his client was ″arrogant″ and ″in my lay opinion she appeared to be in the beginning-to-middle stages of Alzheimer’s disease.″

″She can fool you at the beginning, but after a while you can tell she’s incompetent,″ he said.

Billie was asked a series of questions to test her competency. Bright and quick-witted in conversation, she faltered when asked if she owned her home. She could not remember the name of her bank or the names of the last several presidents.

After a few more casual questions, the special master ruled Billie incompetent and assigned Nathan Sobel, a retired man with several other wards, as her guardian. The court has had no further contact beyond paperwork. She remains in the boarding home, still hoping to return to her small apartment.

Sobel said a return is not likely.

″In talking with the social workers, they don’t think she is on the way to recovery,″ said Sobel. ″Right now she’s being well taken care of and that’s the most important thing.″

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NEXT: How Courts Fail to Guard Against Guardian Abuse

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