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Elder Justice Viewpoints

In defense of guardians: responding to "i care a lot"

4/23/2021

6 Comments

 
​One of the greatest frustrations for those working with elder abuse victims is standing idly by when abuse is occurring or imminent  and not being able to stop it. It’s not for lack of caring. Sometimes, even the most skilled and well-intentioned service providers don’t have the authority they need to do what needs doing. ​
​For example, when someone has highjacked a cognitively impaired older person’s assets using a contract, deed, or power of attorney and the elder isn’t able to revoke the agreements or recover their losses. For others to intervene, they need legal authority, and guardianship (called conservatorship in California) is often the only option. Guardianship is also often used when isolated, cognitively impaired people are languishing in their homes because nobody has authority to arrange care. Or, when family members are feuding over elders’ care or estates, while their health declines and assets dwindle.  ​
As someone who coordinated an elder abuse multidisciplinary team for over 16 years, I can attest to the many times our members breathed a collective sigh of relief when cases that had us stymied were referred to the probate court.
As someone who coordinated an elder abuse multidisciplinary team for over 16 years, I can attest to the many times our members breathed a collective sigh of relief when cases that had us stymied were referred to the probate court. We knew that they would be carefully investigated by professionals with expertise in cognitive impairment, accounting, elders’ needs, and community services. Court investigators could go beyond what protective service workers or law enforcement could do to secure evidence. Once conservatorship was granted, the court could call for accountings by alleged abusers and override powers of attorneys or other documents that had become licenses to steal. It could order feuding families into mediation.
 
Granted, our court was among the best. The judges and commissioners who heard cases were known for being smart and fair. Proposed wards were accorded due process. Investigators visited them in their homes to inform them of their rights, which included the right to attorneys, to contest the process, or even to jury trials. They could tell the court who they wanted as their conservators--under California law, courts are required to give priority to family members unless they deem them to be unsuitable. Investigators also advise courts on whether guardianships are actually needed or if less restrictive alternatives would do the trick. When questions about mental capacity arose, they made referrals for neuropsychological assessments. 

Admittedly, the system doesn’t always work the way it’s supposed to. Cognitively impaired individuals, especially wealthy ones, are tempting targets, and abuses are not uncommon. But it pains me when friends who have seen I Care a Lot, the 2020 Netflix release that depicts a diabolical plot by a private guardian and her accomplices to take control over elders’ lives and fortunes, ask “is it really like that?” Or when I hear calls for tearing down the system in toto. I am a vocal advocate for guardianship reform, but when, as is the case in the TV parable, the problem is clueless judges or corrupt  guardians, doctors, and nursing homes, shouldn’t we start by holding bad actors accountable and educate those who hold others’ freedom in their hands? Having seen the system at its best and worst, I’d start by asking what good programs are doing right.
 
For the record, prior to the rise of private professional guardians in California, “unbefriended” adults (those who met guardianship criteria) usually ended up with public guardians (PGs). As the only game in town, PGs served the affluent and non-affluent alike. Because courts allow guardians (both public and private) to charge fees from the estates they manage based on a percentage of the assets, they generated income from some, which helped underwrite services for others.  
 
Although the system worked relatively well, it placed public guardians in the position of offering tiered services. Clients who could afford expensive assisted living facilities and generous personal care received them, while those who lacked assets received a level of care commensurate with public resources. This was as it should be--the law demands that wards’ assets be used for their care. But the two-tiered system placed PGs in the position of treating clients differentially. It wasn’t a good look.
 
The court responded by encouraging known, trusted private case managers to become conservators to take the load off the public system and accommodate a growing new market. It helped develop training programs for professional conservators, oversaw their fees, and held them to a higher standard of care than families. Members of the new field championed accountability measures, forming a professional association and proposing certification and training standards. Clearly, they knew it was in their interest to keep the Marla Grays (the culprit in I Care a Lot) out of the field.
Guardianship is a blunt force instrument that is often applied when surgical approaches are better suited to cognitively impaired elders’ needs.
There’s a flip side to the guardianship problem, which isn’t the stuff of TV thrillers. As the field of private professional guardians grew, PGs lost a source of revenue that was never replaced. In Calfornia, PGs are even restricted from charging  the nominal fees that the federal government allows for managing public benefits. Many PGs today are woefully underfunded and forced to turn away those in need,  leaving a critical gap in the safety net for America’s vulnerable. Also lacking are adequate funds for court investigators, “elder courts” (a model designed to address elders’ special needs), and effective mechanisms for holding professionals at all levels of the process accountable.

​Perhaps the most critical gap is alternatives. Guardianship is a blunt force instrument that is often applied when surgical approaches are better suited to cognitively impaired elders’ needs. In some abuse cases, for example, limited authority may be all that’s necessary to prevent an elder’s bank account from being pillaged, evict an abusive family member from a victim’s home, arrange for new housing or services, or to serve as a “responsible party,” without which nursing homes won’t accept residents. What we need is a continuum of decision-making options to address the continuum of needs. 
 
It is surprising and ironic that while the thought of losing freedom and independence strikes terror into the hearts of everyday Americans, so little attention has been paid to finding ways to preserve autonomy in the face of cognitive decline. ​
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Lisa Nerenberg

Lisa Nerenberg is the Executive Director of the California Elder Justice Coalition and author of Elder Justice, Ageism, and Elder Abuse (Springer, 2019).

6 Comments
Dani Kaiserman
5/13/2021 03:35:57 pm

Great piece. Like you, I’ve received so many text messages and questions from friends and relatives who watched “I Care A Lot.” Glad I will have this article to send them. We are lucky to have so many protections for conservatees in Los Angeles (court appointed counsel, court investigators, etc.) and I totally agree about exploring lesser restrictive alternatives at the same time. Unfortunately, in some cases where adequate advance planning wasn't done, or you have someone like an agent under power of attorney perpetrating abuse, there is no lesser restrictive alternative than conservatorship available at this time.

Reply
Richard Calhoun link
5/28/2021 01:42:28 pm

"We are lucky to have so many protections for conservatees in Los Angeles (court appointed counsel, court investigators, etc.)"

These "protections" are so great court appointed conservators still submit invoices that are reviewed and approved that routinely total more than 24 hour per calendar day.

EVERY case that CEDAR has that is abusive had advanced planning documents in order that were simply ignored by the court.

I suggest watching ABC10.com five part series air this week that totals 70 minutes of 11 PM news cast.

Or listen to Assemblymember Low present AB1194 this morning (5/28/2021) on the Assembly Floor.

"there is no lesser restrictive alternative than conservatorship"
The Probate Court could use limited conservatorship or execute Durable Power of Attorney opposed to conservatorship.

Reply
Rick Black link
5/28/2021 12:51:17 pm

Your comment said it all: “I can attest to the many times our members breathed a collective sigh of relief when cases that had us stymied were referred to the probate court. We knew that they would be carefully investigated by professionals with expertise in cognitive impairment, accounting, elders’ needs, and community services. Court investigators could go beyond what protective service workers or law enforcement could do to secure evidence. Once conservatorship was granted, the court could call for accountings by alleged abusers and override powers of attorneys or other documents that had become licenses to steal.

This system has developed into a police state that routinely vilifies entire families, destroys estates and provides no assurance of protections for the vulnerable adult who they claim to be protecting. The “professionals”, most importantly the litigators, can’t possibly defend their performance.

https://www.abc10.com/video/news/local/abc10-originals/the-price-of-care-investigating-california-conservatorships-the-fight-for-accountability/103-e0083bca-8ffb-451f-bfff-982e334b904d

This aired last night in Sacramento. Why do you continue to play the propaganda minister when you could lead reforms? You may be next.

Reply
Carol Kelly
6/3/2021 01:43:26 pm

I urge everyone to watch the recent 5-part ABC10 series. Also, check out "A Life Hijacked" on you tube.
The California system has serious flaws- estates are depleted and families are torn apart. Our most vulnerable citizens live out their final years in agony, often being denied visitation by loved ones and having their hard earned savings go to greedy attorneys.
Many petitions are filed on an 'emergency basis' with no investigation.
Victims have no where to turn.
We all need to stand up and demand that such culprits are stopped and held accountable.

Reply
KEN HEISZ link
7/26/2021 03:39:22 pm

Lisa,

I appreciated reading your blog, "In Defense of Guardians: Responding to 'I Care A Lot'." I agree that there are specific circumstances where a guardianship or conservatorship are warranted. However, I also agree that these are too often used as a "blunt force instrument" when less restrictive alternatives are available. While "I Care A Lot" was a fictional thriller, it was made no doubt because of the existing reality of financial elder abuse. I wrote an article, "Beware of the Con in Conservatorships: A Perfect Storm for Financial Elder Abuse in California," which was recently published by the National Academy of Elder Law Attorneys. In it, I examine the history of the elder abuse laws in California and some of the problems that still exist, including inadequate funding. For example, the 2006 Reform Act, which was intended to address certain systemic problems with the conservatorship system went unfunded by the legislature. It is absolutely true that there are conscientious conservators, but there are also too many instances of conservatorship abuses (as profiled in the 2005 Los Angeles Times series and the 2012 The Mercury News series). If these abuses were not still happening, there would not have been a movie, "I Care A Lot."

Reply
Lisa
8/2/2021 11:38:28 am

Hi Ken,
I wanted to let "Elder Justice Viewpoints" readers know that your article Beware of the con in Conservatorship is available at: https://www.naela.org/NewsJournalOnline/OnlineJournalArticles/OnlineMarch2021/Conservatorships.aspx?subid=1191
It's a great overview of conservatorship and reform efforts.

I agree that a lot of the problem gets down to not having enough resources to implement recommendations or fund existing services.

I also wanted to let readers know about an upcoming webinar about one (of the very few) potential alternative to conservatorship: Stop the Bleeding – Temporarily Freezing Assets in Elder & Dependent Adult Abuse Cases, which will focus on how law enforcement in collaboration with public guardians, can protect older and dependent adults against exploitation during complex criminal investigations. For more information and to register, go to https://www.elderjusticecal.org/webinars-and-events.html

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  • Home
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    • 2022 Elder Justice Legislative Update
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  • Join Us
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