State Could Turn Elsewhere for Conservatorship Remedies

PHOENIX — The unsigned letter arrived at the Arizona Supreme Court in late October 2001.

A professional guardian, the director of a nonprofit Tucson firm, was stealing from his elderly and disabled clients, it alleged.

The court’s fiduciary unit sprang into action.

Manager J.R. Rittenhouse went to Tucson, interviewed the firm’s employees and dug through court records and boxes of canceled checks.

She discovered that the guardian had taken nearly $3,000 from a developmentally disabled man for an electric bed that was never purchased. The same client paid $1,000 for a fundraising dinner he never attended.

Within two months, the unit had enough documentation to issue an emergency suspension of the guardian’s license. The license was later revoked. The unit’s work also triggered a criminal investigation by the state attorney general’s office, which led to felony theft charges against the guardian involving three clients.

Many experts say that if conservatorship — California’s largely unregulated system for protecting adults deemed unable to care for themselves — is to be reformed, the state needs to take several pages out of Arizona’s book.

A decade ago, Arizona confronted troubles similar to those detailed in a four-part series published last month by The Times.

Though conservatorship began as a way to help families protect enfeebled relatives from predators and self-neglect, a growing trade of for-profit conservators has taken root in California as the population has aged and families have split up.

Today, about 500 professional conservators operate in the state, caring for at least 4,600 incapacitated adults and managing $1.5 billion in assets.

Though they hold sweeping authority over their clients’ lives, no agency licenses conservators or investigates complaints against them. The Times’ investigation found that professional conservators often gain legal authority over elderly people without their knowledge or consent, taking control of their lives and finances with jarring speed.

Some conservators neglected their wards, isolated them from relatives and ran up excessive fees. Others used their power over seniors’ estates to benefit themselves, their employers or their friends.

The state’s swamped probate courts, which appoint conservators and are charged with monitoring their work, overlooked incompetence, neglect and outright theft.

In Los Angeles County, the public guardian’s office — founded to act as the conservator of last resort for the indigent — was so chronically underfunded that it turned away most seniors referred to it for help and provided poor service to others.

Elder-law specialists, advocates and researchers acknowledge that there is no single cure-all for protecting California’s elderly.

They say the best hope for a remedy lies in a combination of measures, some pioneered by Arizona.

They also suggest that California look far and wide for other potential models: to Florida, which recently installed the country’s toughest licensing exam for prospective guardians; to Texas, which has made it harder to start guardianships using provisions meant only for emergencies; and even to Canada, where a broader, better-financed public system for disabled seniors has made for-profit caretakers unnecessary.

“It’s a very challenging process,” said Terry Hammond, an El Paso attorney who is executive director of the National Guardianship Assn., the main trade group for guardians. Predicting that the push for reform would become a test of political will, he urged California to commit the resources needed to ensure the system’s integrity.

If it does, he said, “the Legislature will be able to say, ‘We did the right thing for people who needed our help.’ ”

Taking the Lead

Amid the clutter on Rittenhouse’s desk, in a cramped office on the ground floor of the marble-and-glass Arizona Supreme Court building, sits a pin that might as well be her motto: “Aging — If it’s not your issue … it will be.”

She has spent the last 23 years preoccupied with guardianships and the aged, first with the Maricopa County Public Fiduciary and then with the court. Rittenhouse and her boss, Nancy Swetnam, director of the court’s certification and licensing division, have headed what might be called the Arizona experiment for much of its short lifespan.

In 1998, Arizona became the first state to license professional guardians, requiring them to pass a competency test in order to practice. Just four other states — Washington, Florida, Alaska and Nevada — have followed in its footsteps.

Arizona’s fiduciary unit was assembled to supervise the licensing process, investigate complaints lodged by courts and the public and conduct IRS-style audits on four or five licensees a year. Only Washington has set up a similarly comprehensive process.

Of the two, Arizona easily has the most extensive track record. When the anonymous letter came in about the Tucson practitioner, Rittenhouse had just completed investigations into wrongdoing by two others. “I can’t believe it,” she recalled thinking. “I can’t do another one.”

All in all, the unit has licensed 338 guardians and put 23 out of business, yielding both promising results and frustrations.

Naysayers gripe that it moves too slowly and that its exam is rudimentary, giving courts a false sense of confidence in the skills of those who pass it. They are outnumbered by supporters, however, who say the program has become a powerful deterrent to practitioners tempted to abuse their control over vulnerable men and women.

“Just having additional oversight, having an official body that consumers can go to, has been really critical in giving the profession credibility and weeding out problems,” said Peggy Van Norman, director of Care Coordinators Inc., a Tucson firm that oversees about 150 guardianships. “They may be a little short-staffed, but they follow up and they are bulldogs.”

In California, Assemblyman Dave Jones (D-Sacramento), a former legal aid attorney who is chairman of the Judiciary Committee, plans to introduce a bill next month that, in several regards, follows Arizona’s road map. It would license professional conservators and create a state regulatory board to oversee them. It would also require courts to audit their work.

But Jones, like many scholars and elder-rights advocates, wants California to go further.

He has proposed creating an ombudsman program for seniors under conservatorship similar to that for nursing-home patients.It would dispense information, resolve problems and report to a statewide office that looks at systemic issues.

Wards, too, need advocates beyond the walls of probate court, said Kate Wilber, a USC gerontology professor who has done research on conservatorship and alternatives to it.

“People don’t know what to do if there is a problem,” she said. “If you have that ombudsman to be an advocate and run interference, that would give them a starting place.”

If Jones succeeds, California will be the first state to take this tack.

Along with Jones’ blueprint for change, the Judicial Council of California, which sets policy for courts statewide, is establishing a task force to study laws on conservatorship.

National guardianship experts said the panel should focus on emergency conservatorships, looking not only at the rules themselves but also at judges’ discretion in how they are applied.

Many were disturbed by The Times’ finding that judges often grant conservators emergency appointments on the day they ask for them.

These appointments are meant for cases in which elderly people are in imminent danger, but professional conservators have made them the norm.

Adults are entitled by law to attend emergency proceedings, but were not formally notified about them in more than half of the cases The Times examined. In many instances, judges waived the requirement after conservators said prospective wards were too feeble to come to court.

Seniors often were placed in conservators’ hands before attorneys were assigned to represent them or court investigators could assess whether a conservatorship was even needed.

Texas has taken many of these decisions out of judges’ hands, revising its laws to require that prospective wards be given notice of emergency guardianships — no exceptions. They also must be assigned attorneys before courts rule on their cases.

In practice, judges in Texas said, this has all but eliminated emergency guardianships. When seniors are at risk, Adult Protective Services seeks strictly defined temporary authority to get them medical care or restraining orders to stop suspected thieves from accessing bank accounts.

Looking North

Beyond the reforms in place in Texas and Arizona, some experts look to an altogether different system — in Canada — for new ideas.

Though the reforms being considered in California all have the goal of stricter regulation of for-profit operators — who are seen as a necessity — Canada does without them.

In Canada, incapacitated people without relatives to help them are cared for by provincial public guardians and trustees, agencies that also investigate elder-abuse cases and supervise guardianships handled by family members.

The Canadian model is not trouble-free. Jay Chalke, the public guardian and trustee of British Columbia, said his office has been rightly criticized at times for being slow in seeing to wards’ day-to-day needs and for lagging in its investigative duties.

For-profit guardians might relieve the strain, but Chalke said the complications that come with them — increased costs to the elderly, regulatory challenges and the potential for displacement of families as caretakers — make that an unappealing choice.

Perhaps the biggest move afoot in Canada is toward “supported decision-making,” or finding ways to help and protect disabled adults without stripping away their rights.

In some provinces, courts can name a co-decision-maker or helper for a disabled adult instead of placing all decision-making power in the hands of a guardian. Other provinces are pioneering agreements that enable the old and infirm to accept help voluntarily.

In the U.S., elder-rights advocates and many probate judges agree that reform should encompass ideas for guardianship alternatives, as well as for limiting guardians’ powers and ensuring that prospective wards’ mental capacity is properly evaluated.

“In older people, there’s lots of things that can look like dementia. A urinary tract infection can make them look very confused and it can kind of linger for months,” said Jennifer Moye, a professor at Harvard and director of the Geriatric Mental Health Clinic, a Department of Veterans Affairs facility in Boston.

Moye said longer, more detailed reports from doctors often prompted courts to limit guardians’ powers, tailoring them to specific needs and preserving wards’ autonomy to a greater extent.

Even in states where guardians submit the most complete doctors’ assessments, including California, the reports typically do not address which aspects of decision-making and daily living adults can handle. For example, an elderly person who has lost his ability to manage a large nest egg still might be able to oversee his own personal care, choose friends and maintain a limited checking account.

“Some people would say, ‘You’re never going to get a doctor to take the time to do this,’ ” said Moye, who is working with the American Bar Assn. and the American Psychological Assn. on a handbook to aid judges in determining capacity. “It seems to me like if it’s a child custody thing, parents get hours of testing, but if it’s an elderly person, we can’t give them more than five minutes.”

The Financial Angle

The biggest hurdle to reform in California is likely to be money, guardianship experts agree.

Just regulating professional conservators probably would not cost that much, at least not measured against most state initiatives.

Last year, Arizona spent about $360,000 on its fiduciary program, covering some of the costs with licensing fees paid by guardians. The rest came from taxpayers, who paid a bit extra for filing birth and adoption certificates.

Many California advocates also are urging lawmakers to steer more money to county public guardians, allowing them to expand care to the indigent while hiring enough staff to keep caseloads manageable.

Probate court officials say they, too, need more staff to scrutinize conservatorship accountings thoroughly and to check on wards’ welfare as often as the law requires.

Those costs are likely to swell substantially in the next two decades as baby boomers reach old age. But because California, like most states, has never tabulated how many of its citizens are under conservatorship, policymakers have little inkling of the resources courts and public agencies will need in the future.

Longtime elder-rights advocates said they hope California’s current appetite for change does not fade. Conservatorship’s constituency, frail and often voiceless, is all too easy to ignore, they said.

“The whole thing is so low on the totem pole. Everything else comes first, always, always, always,” said Erica Wood, assistant director of the American Bar Assn.’s commission on law and aging, and the author of several national studies on adult guardianship. “We are working in the dark.”

At her office in Phoenix, Rittenhouse reflected on the anonymous letter and how swiftly her investigation ended the career of professional guardian Jay Hardy.

Despite maintaining that he never stole from his clients, Hardy pleaded guilty to one felony charge of illegally conducting an enterprise. He was sentenced to two years’ probation and ordered to repay $10,000. Today, he works part time as a host at a Tucson restaurant.

Hardy’s alleged victims were among society’s most vulnerable adults, Rittenhouse said. One suffered from paranoid schizophrenia. Another’s developmental disorder left him foraging for food in garbage cans.

A third, Clarence Dechant, who died in March at age 90, suffered from dementia.

Dechant’s son, Doug, remains grateful for the way the state of Arizona devoted resources to monitor guardians and investigate his father’s case.

“It’s absolutely necessary,” said Dechant. “It’s just too easy to take advantage of people who can’t take care of themselves.”

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Leonard reported from Phoenix, Fields and Larrubia from Los Angeles.