I attended the International Congress on Adult Guardianship in Washington D.C. in May, and would like our New Mexico task force on guardianship to consider reforms in legislation that would improve the situation in our state. Highlights of reform include: Michigan is reinforcing rights of wards, requiring courts to specifically state the exact powers of the guardian/conservator. All other ward rights are retained. "Best interest" can't override these without a court order. In California ward's rights to visitation, mail, and phone calls have been bolstered as well.
The head of Michigan's Arc, Dohn Hoyle, suggests that guardianship/conservatorship works against the safety the ward. He feels that the idea of protecting an elder or vulnerable adult by removing the fundamental rights that serve as their protection is fundamentally flawed. Limited guardianships only are allowed in Germany, and wards do not lose legal capacity to properly defend themselves. In Hong Kong, only $12,000 per month can be removed from a guardianship account in order to protect the ward's assets. Limited guardianships are insisted upon as first priority.
Supportive decision-making with a circle of support is being considered as a future option among many reformers. Treating a ward like a child, with the guardian acting as a parent of a child is no longer acceptable in the 21st century. Persons with Disabilities and Disabled Elders need to be treated as integrated members of society, not separated from the world around them by social discrimination, restriction, and loss of quality of life. This, unfortunately is the case for many wards in our state. I became interested in this topic when a friend of mine was put under guardianship and charged perhaps as much as 1 million a year for "services." Heirs are not allowed an audit of where and how the ward's money was spent, and the records are sequestered.
Illinois is proposing that clear and convincing concrete proof be required to remove previously assigned P.O.A. and Health Directives. My friend had all of his documents in place, and they were quickly tossed out the window. Too often these documents are rescinded by the court without concrete evidence of mis-management or wrong-doing. Often the elder's wishes when expressed while having capacity are completely ignored, as was the case with my friend. This is true throughout the nation. If P.O.A.'s were respected and not allowed simply to be tossed without question, this would reduce the number of guardianships/conservatorships in our state.
When it comes to wards with substantial assets, a small number of wealthy families in New Mexico are claiming that 50 million dollars is missing from their parents' estates after conservatorship. They aren't allowed to hire outside accountants to review the records which are also sequestered by the courts. With no one outside the court carefully examining guardianship accounts, even though there are honorable conservators and guardians, the laws basically, as reformers see it, encourage unmonitored theft by family guardians and professional guardians. With the laws as they are, theft can too easily be covered up, and severe conflicts of interest exist in the courtroom setting.
Some families are forced to sign confidentiality agreements to receive inheritances, and there is no attention to any of these malpractices by law enforcement which claims that guardianship and conservatorship theft is a civil matter. It's not. It's potentially criminal, which can only be ascertained by thorough investigation, which is obviously no possible due to the egregiously insulated, cozy, closed system. The very nature of the conflicts of interest and secretive nature of the guardianship court proceedings in our state looks very suspect to the public. This perception will only grow as publicity of practices increases, which is occurring everywhere. We need to act proactively to protect the reputations of those who are honorable in these professions, and to weed out those who are not. Only stronger enforcements will do that.
In Palm Beach, guardianship fraud is so rampant that the state has given all county clerks throughout the state the independent authority to subpoena records for three levels of audits depending on each case brought to their attention.. A guardianship fraud hotline was established in Palm Beach due to the severity of complaints.
We need a mechanism here for complaints because there is no recourse for investigation into the practices of conservators and the fees charged by guardians and their employees. Heirs have no recourse under our system, and even though an elder's money does not belong to heirs during an elder's lifetime (and some families seem to forget that) those assets should be for use by the elder. However, most of these assets are diverted to often unwanted "services" that are truly suspect.
One million dollars per year for one person's care, for example, with no proper auditing outside the courtroom where these charges are considered fine, is outrageous and obviously not in an elder's best interest. Elders have spent a lifetime accumulating legacies to pass along for generations to come. It is not in any elder's best interest to have everything they have worked for depleted mercilessly by total strangers, who often isolate and medicate the ward beyond recognition. I have seen this behavior personally, and in any other arena, these practices would be considered financial, emotional, and physical elder abuse.
My Facebook page on this topic is gravely concerned with the rights of elders as Boomers approach old age. Too many abuses are occurring under the guise of protection. This needs serious attention in our state. Since stories in the press are breaking out at a steady clip, around the nation, it's only a matter of time before the industry here is put under scrutiny. 12 family members of victims have confided in me, and the abuses they have suffered are immeasurable.
I appeal to you, as having been in the forefront of guardianship/conservatorship reform in our state, to see to it that elders who choose to retire here in our state are safe. I hope that the work of the task force on guardianship will continue to examine these problems. I also strongly believe that efforts towards reform must include elder advocates who have studied reforms in other states and countries. We want to be part of the solution. Right now, as outsiders, all we can do is point out the problems.
Thank you--
Marcia Southwick
Boomers Against Elder Abuse
*Mr. Jim Jackson is Director of Disability Rights and a member of the NM 2013 Legislative Task Force on Guardianship
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Specifically, both of my live-in assignments (one three months the other nine months) were characterized by infrequent visits and telephone calls from family, health professionals and from my own employment agency supervisor. All visits, meanwhile, were confirmed days in advance. And I was startled to discover also that my agency didn’t require me to undergo a police check before it placed me in my first assignment.
As such, I personally am unsurprised that elder abuse and neglect is increasingly in the news. Elderly people under care are much more vulnerable than most of us realize – especially when you consider how confused dementia leaves its victims, and how poorly paid care work tends to be. The stories we read are probably only the tip of the iceberg. Perhaps we ought to think twice before we outsource our elderly loved ones to people who don’t necessarily love them?
Raising awareness
I recently self-published The Carer, the first novel to tackle elder abuse. You can buy The Carer for USD0.99 from Amazon and all other major ebook retailers.
Scott Nelson
Halifax, Nova Scotia
Boomers Against Elder Abuse is an impressive group of people growing in numbers on a mission to change business as usual.
Our eyes are wide open!
Keep the light shining on the dark side of guardianships most often in the best interest of the 'protector' financial incentives and job security for the public guardians.
As a NASGA member of Illinois I am inspired by: Illinois HB 5573 introduced by Representative David Harris. A bill that IS in the best interest of the public.
A beginning to raise awareness opening the door to debate and discussion in the Illinois legislature and hopefully in main stream news.
We the people want and demand clear strong protections in our laws for our advance directives.
#1 Power of Attorney for Health Care and
#2 Property
We need the press to step up, to expose who is opposed to reform and strengthening adult guardianship laws and the reason for the opposition.
Those trapped, silenced and dying in the system had no idea the court would disregard their valid POA's, no notice or warning the court would take over their lives and estates while they were alive.
No warning what was coming all were blindsided leaving the next generation - us - the Baby Boomers with the responsibility to take action to stop the abuses, to fix the broken system that is not working in the best interest of the disabled adult.
See:
1)http://nasga-stopguardianabuse.blogspot.com/2014/03/nasga-members-in-legislative-action.html
2)http://nasga-stopguardianabuse.blogspot.com/2014/03/nasga-on-hb5573-illinois.html
3)Letter from: Philip B. Luloff MD
http://nasga-stopguardianabuse.blogspot.com/2014/05/letter-of-support-to-il-representative.html
4)HB 5573 http://www.ilga.gov/legislation/BillStatus.asp?DocTypeID=HB&DocNum=5573&GAID=12&SessionID=85&LegID=80637