The Supreme Court of Pennsylvania will create a state Office of Elder Justice to protect seniors from abuse and financial exploitation, primarily through proposed reforms to court-appointed guardianships.
The new office was recommended by a 38-member Elder Law Task Force, which released its report today after 18 months of research.
When the elderly in Pennsylvania can no longer handle their personal or financial affairs, a judge can appoint a guardian to make decisions for them. Often, guardianship can be a lifeline to a senior whose life or estate could be in jeopardy.
However, a ward is also stripped of most basic rights when assigned a guardian. This unbridled power over another person and their assets has proven to be too much temptation for some unscrupulous guardians.
Until now, guardianships were largely unregulated. Almost anyone can become a guardian without a background check, and there is little to no oversight.
Pennsylvania isn’t alone in this. Most states don’t know how many of their residents have guardians. Everyone in the field refers to a 2011 estimate by the National Center for State Courts of 1.5 million active guardianships.
Elder justice and protections will only grow in importance as the state’s more than 3.3 million Baby Boomers join the 60-and-older population. Already, older Pennsylvanians make up more than 20 percent of the population, making it the fourth oldest state.
“It’s a wonderful thing to have the input and continuing contribution of elders in Pennsylvania,” said state Supreme Court Justice Debra Todd, who chaired the task force, “but along with that comes challenges to the court system and all levels of government to sustain services and make sure that elders are fairly treated.”
Elder exploitation and abuse affects everyone, because abused seniors are three times more likely to die and because almost one in 10 will go on Medicaid once their bank accounts have been drained, according to the National Adult Protective Services Association.
Few states have taken on the system of guardianship in a comprehensive way.
“Pennsylvania is in the minority here,” said Elaine Renoire, president of the National Association to Stop Guardian Abuse.
The Office of Elder Justice will open in January. An advisory council, whose members will be announced next month, will guide the office and connect with agencies and the state legislature.
The task force is asking the legislature to consider about two dozen suggestions. Among them: Creating a fund to pay for guardianship services for those with limited resources; increasing state funding to the Supreme Court; and sending some lottery funds to elder justice programs.
Going forward, becoming a guardian will most likely include extensive homework and giving the courts personal information that wasn’t required before.
The Elder Law Task Force recommends training for all guardians, whether he or she is a lawyer, a caseworker with a guardianship agency, an independent professional guardian or a family member.
There may also be a criminal background check and firearms search as well as a requirement to submit a credit report every year.
The task force also suggested the creation of minimum guidelines for guardians, such as visiting a ward at least quarterly.
At Jewish Family and Children’s Service of Pittsburgh, guardianship caseworker Patricia McKeown said they visit their 200 wards at least once a month.
“It’s important to have guidelines to help guardians ensure a person’s autonomy is respected,” she said. “We frequently struggle with decisions that may affect a person’s autonomy in an effort to ensure the person’s safety. It’s a hard balance at times.”
A laundry list of requirements may deter some people from becoming guardians when it’s already a struggle to find people qualified for the job, said Janice Kunak, an independent guardian to 25 wards in Allegheny County.
Though she doesn’t disagree with the requirements, she said that making guardians meet them could also cause guardians to snub wards with limited resources.
“I’m one of those people who has always been willing to take those people not able to compensate me,” said Kunak, 51, “but if paying to meet these requirements lands on me, I would probably get out of the business.”
Todd said the Office of Elder Justice will determine how best to handle costs of a training program for individual lay guardians. Training programs for lawyers who are guardians would be covered under continuing legal education.
Indiana County resident Norma Carpenter said her mother is isolated in a nursing home nearly 100 miles away from all the family she has because of choices made by her court-appointed guardian.
She thinks her mother’s life and their relationship would be drastically different if these requirements had been in place when her mother became a ward about two years ago.
“They shouldn’t be in the business of breaking down families,” she said. “This is a start in the right direction, but I’d have to see it.”
The task force says judges should choose family whenever possible to serve as the type of guardian that handles personal choices, like residence, clothing and food. However, when the person has significant assets, the judge should assign a professional guardian to oversee the estate.
Renoire said families are often villainized in these situations, and it ignores how professional guardians misuse the law to their benefit.
“I think there’s a propensity to say family is bad and this kind of reinforces that,” she said. “I know there are bad families, of course, but families are the best we have in this world when it comes down to trusting someone.”
Oversight and fee schedules
The first step to better supervising guardians is standardization.
Some guardians charge $50 an hour; some charge $250 an hour.
The task force suggests that a fee schedule be issued that tells guardians how much they can charge for phone calls, doctor’s appointments and other guardian duties.
Anyone who suspects elder abuse may call the following hotlines anonymously:
- Statewide Elder Abuse Hotline: 1-800-490-8505
- Office of Attorney General Elder Abuse Hotline: 1-866-623-2137
Independent guardian Kunak charges $65 an hour. She says she has only ever seen one judge question a guardian for something he had charged. “That tells you something.”
Task force member Diane Menio, director of Philadelphia-based Center for Advocacy for the Rights and Interests of the Elderly (CARIE), said the task force developed standardized forms to create uniformity in the guardianship process and to aid in data collection.
These tools will make it easier to see red flags, to prevent someone from falling through the cracks.
“It translates into a better-run system with better care,” she said.
The state of Indiana has a guardian database that tracks all active guardianships, who the guardians are and how much they’re making, Renoire said.
“People are starting to wake up and realize we need to have guardianship reform, which starts with monitors and data collection,” she said.
University of Pittsburgh law professor Lawrence Frolik, a nationally recognized expert on elder law, said it will take more than keeping tabs on the data and the guardian’s annual reports.
“I don’t know if that catches the bad guys. A guardian who’s exploiting a ward, I don’t think they’re going to hesitate to file fraudulent reports,” he said. “You really need field audits, someone to go out there and say, ‘Is this true?’ Visit the ward. Ask for bank statements to reconcile.”
Power of attorney instead
Guardianship should be a last resort.
And it is much more likely to happen when a person does not establish a power of attorney. Frolik said people of all ages need to be encouraged to plan.
The task force thinks elder law clinics at academic institutions across the state could make it easier for people to sign these documents.
It also addressed abuses that can occur under power of attorney. The task force asks the legislature to make banks a mandatory reporter of suspected financial abuse and to broaden who can petition the court for a review of the person acting as someone’s power of attorney.
Judges are also to be trained to recognize when a limited guardianship may work. In most guardianships, a guardian is making all personal and financial decisions. A limited guardianship would divvy out what the guardian should do and what the ward can continue to do.
For example, a judge could decide a person is no longer capable of managing a pension and IRA but can still handle how he or she spends monthly Social Security checks.
“We’ve had many conversations with people who feel they unjustly became a part of the system,” Menio said, “so I think we all want to make sure people are not getting into the system unless absolutely necessary, and, when it is, we want to make sure the process works well.”
Reach Halle Stockton at 412-315-0263 or firstname.lastname@example.org. Follow her on Twitter @HalleStockton.
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