In an expose published on Sunday, January 13th, The Boston Globe takes aim at the Massachusetts guardianship system, reporting that many seniors are stripped of the rights and independence with little or no due process of law and with little or no review or oversight by the probate courts after the appointment.
Guardianship involves a court determination that due to mental illness or dementia an individual can no longer make financial, health care or personal decisions for herself and the appointment of another individual to take over these functions. The guardian then has a fiduciary duty to act in the best interest of the individual and to report on the individual's finances on an annual basis. There is no requirement for review of the individuals personal situation, such as whether he is living at home or in a nursing home, or whether he still needs a guardian. And very often the guardians do not file the necessary financial reports.
Typically guardianships occur within families with a spouse or child becoming the guardian of the ill or demented spouse or parent to take care of him. But the Globe article describes a number of guardianships initiated by Massachusetts General Hospital where its patients had no family members or none involved in their care. In such instances, the court must choose a guardian, often an attorney who appears frequently before the court.
But the Globe also described the situation of a young social worker who became a professional guardian and was appointed guardian over 70 individuals. She did not have the time or resources to provide proper oversight of her wards. The state pays guardians nothing. Where individuals are in nursing homes covered by MassHealth, MassHealth only permits a deduction of $1,200 a year to pay for guardianship services '“ not nearly enough in most instances given the level of responsibility required.
The Globe also describes the case of a woman at Mass General who had a guardian appointed based on a short meeting with a psychiatrist. When she contacted a legal services attorney and challenged the guardianship it was removed. This reflects both the procedure for appointing a guardian and the defacto standard for competency.
When someone is seeking guardianship over another person, he must file a petition with the probate court that includes his signature and that of another person. For a permanent guardianship, notice must be published in a newspaper designated by the court. For a three-month temporary guardianship, no publication is necessary, but in-hand written notice must be given to the proposed ward and to her next of kin.
In addition, for both temporary and permanent guardianship, the court must receive certification from a physician that the individual does not have mental capacity to handle her own affairs. With that certification, if no objection is filed by the individual or anyone else, the guardianship is typically rubber-stamped by the court. If an objection is filed, then the court typically grants a full hearing on the guardianship and if necessary appoints an attorney to represent the proposed ward. Thus, the standard for guardianship in effect becomes whether the individual has the capacity to hire an attorney or file some sort of objection with the court.
The Globe article raises the question as to why attorneys are not appointed in all cases, and why the probate court doesn't do a better job of training guardians and monitoring them after their appointment. The answer is simple: lack of resources. The probate court does not have the resources to computerize its system, much less pay attorneys, guardians or guardian monitors. Some states and counties have professional public guardians. Past legislative efforts to institute such a program in Massachusetts have all failed.
This is not a new problem. Its resolution is simply a matter of legislative will and funding.
To read the Globe article, go to
www.boston.com/news/local/articles/2008/01/13/courts_strip_elders_of_their_independence/
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