Is There a Large Scale Problem with Court Appointed Guardians?
In my opinion, the answer to the question of “is there a large scale problem with court appointed guardians” is “no.” In the 20+ years I’ve been working in elder law and in almost that much time representing a busy Older Adult Protective Services unit, I’ve seen quite a few cases of exploitation, b
The question, highlighted by a recent New York Times article, is does this represent the rule or theDuring the last several years, there has been more attention given to legal guardians who have acted badly. And since The New Yorker article came out last week focusing on guardianship issues in Las Vegas Nevada, I thought it may be worth a discussion.
Now this is my experience and it does not mean that there does not need to be changes, there does. But overall, in over 350 guardianships in which I have been involved, I can recollect less than 5 cases where a court appointed guardian acted intentionally in an unethical or immoral manner. If I have seen problems it is because the system never intended or planned for the number of incapacitated persons that we now have and never put in a system to support or fund the needs of those who have no one who can advocate for them. Understand that my perspective is based on the Pennsylvania guardianship system and other states may be doing a better job here.
Other than local judges asking the right questions, there is no statewide system to vet guardians.There are no educational, experiential or licensing requirements. Most guardians are people who either got into the business because they have a clinical or social services background or feel that it is a business with a future because of the aging of society. Neither makes someone more or less able to do the job well as the best guardians are people who know their fiduciary obligation and honor it. No type or level of education makes you better at that.
The issue with court appointed guardians is much bigger than simply background or training.PA has no means of compensating guardians. If someone is lucky enough to have funds, a guardian can get compensated up to $100 per hour in SE PA. This is the number approved by most courts. But frequently the person needing a guardian has little or no funds. And if they do have funds, their care needs usually eat up their funds pretty quickly so the guardian cannot get their hourly rate for very long.
Sadly, the professional guardian is paid minimum wage (or less).Once an individual is in a nursing home and eligible for Medical Assistance, guardians are limited to $100 per month for all services they provide. This includes being on call 24/7/365 for all medical emergencies, psychiatric issues, financial issues, insurance and reimbursement problems, arranging for and consenting to necessary medical care and dealing with often adversarial family members. Rarely does this take less than 10-15 hours per month. And this amount that is approved by the PA Department of Human Services has not changed since 1997. But let's be fair, even in 1997, $100 per month was not a reasonable figure to be responsible for managing 100% of another person's needs. In 2017, it is laughable and sad that our state cares so little about the people who need guardians and the guardians themselves that they let this situation exist. And they know it does and continue to ignore it.