Hell for Sisyphus was to ceaselessly push a boulder up a hill, only to have it roll back down to push back up again. A similar unavailing ceaselessness redounds in seeking the elusive solutions to reforming guardianship of the vulnerable elderly.
But it’s not a boulder that comes to mind. Instead, it’s a wheel that’s endlessly and constantly being reinvented.
First come the scandals and financial abuses of vulnerable wards reported in the press. And then come the cries for reform. Oversight is retooled. Legislation is passed. New court rules are promulgated. Better training is promised. And then the boulder is pushed once more up the hill.
Some might argue that defrauding the elderly has a long antecedental record. For instance, there’s the biblical story of Genesis 27:1–40 where Jacob disguises himself as his brother Esau to deceive his father, the blind and aged Isaac for the purpose of stealing Esau’s birthright blessing reserved for the eldest son.
The call for reform is repetitive.
In the 1980’s, following a spate of bad press, serious reform legislation followed. 8 years ago, Professor Lawrence Frolik advocated for judicial use of limited guardianship in a law review article entitled, PROMOTING JUDICIAL ACCEPTANCE AND USE OF LIMITED GUARDIANSHIP. He wrote that “There must be specific plans for monitoring guardians, both limited and plenary, with realistic cost estimates. It is pointless to claim that the guardianship system is “reformed” unless judges institute formal systems to fulfill their oversight function.”
The professor went on, “If the courts fail in this critical role, then guardianship reform will be little more than a charade. Guardianship will be a world of court orders without compliance, paper reforms without reality, and a smug, self-satisfied system that turns a blind eye to the needs of the mentally incapacitated. Yet, it need not be so. Courts can and must monitor guardians and aggressively seek the resources necessary to support the effective oversight of guardians and the protection of persons adjudicated mentally incapacitated.” See Stetson Law Review, Vol. 31, p. 735, 2002
Still the calls for reform go out. The music’s identified. But still we tune and strum the same guitar.
Reasons for hope, again.
But that said, the Arizona Supreme Court’s Committee on Improving Judicial Oversight and Processing of Probate Court Matters has published its draft 64 page Interim Report with preliminary recommendations on judicial oversight of guardianship and conservator cases.
The Committee on Improving Judicial Oversight and Processing of Probate Court Matters has done a good job so far at re-identifying those important albeit familiar issues impacting judicial oversight:
“(a) Judicial officers are not required to participate in training specific to deciding probate cases before presiding over such cases. Because most judicial officers did not practice as attorneys in probate cases, the learning curve can be sharp.
(b) Non-licensed family members or friends who petition to become guardians often lack critical information about what the position entails. Thus, post-appointment, they may realize belatedly they are ill-equipped for the position and/or fail to adequately perform their duties.
(c) Court-appointed attorneys, guardians ad litem, and court investigators are not required to participate in training specific to their roles in guardianship and conservatorship cases.
(d) The judiciary’s auditing procedures are not sufficient to oversee all guardianships and conservatorships.
(e) The process for obtaining guardianships and conservatorships can be daunting to parties involved in such proceedings, which either deters use of the system or causes confusion.
(f) Confusion exists regarding the respective roles of court-appointed attorneys, guardians ad litem, and fiduciaries.
(g) Alternative dispute resolution is not always available or used when disputes arise.
(h) Only guardians are required to visit wards post-appointment, and no mechanism exists for periodic visits and reports by others to ensure the guardian or conservator is performing his or her duties appropriately.
(i) The courts often lack sufficient resources to provide needed oversight and protection of Arizona’s vulnerable adults.”
The Committee’s recommendations also encompass improved monitoring, dispute-resolution, data automation, paperwork processing and of course, the ever-present, never fully realized better training.
But the thornier area awaiting further deliberations remains the matter of fees paid to fiduciaries and attorneys. The Committee did adopt a recommendation that “The supreme court should adopt statewide fee guidelines for attorneys and fiduciaries paid from an estate.”
However, what’s left pending for further attorney and fiduciary teeth-gnashing is summarized below:
“Should all fee requests be first approved by the court before payment by the estate?
Should the Supreme Court adopt a rule requiring a case management plan/budget be filed at the start of a conservatorship/guardianship case?
Should quarterly accountings be required in the first year of a guardianship or conservatorship?
Should the court be authorized to order alternative dispute resolution to resolve disputes?
Should standard, hourly rates be set for fiduciaries, their attorneys, court-appointed attorneys, guardians ad litem, and their non-clerical assistants?
Should attorneys and fiduciaries be required to disclose their fee schedules and hourly rates prior to commencing an appointment?”
Some of this dovetails with a June 14th blogpost, On “exorbitant fees” and “shocking the conscience of the court.
But for anyone else wanting to weigh in, the Committee’s website continues asking for public input regarding problems encountered or observed in guardianship or conservatorship cases and for any suggested solutions. Questions and comments may be directed to firstname.lastname@example.org