Trusteeship reform in the spotlight: the way forward for Pennsylvania

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International pop icon Britney Spears has, in recent years, achieved a darker sort of fame: The growing interest in her 13-year conservation (trusteeship) saga has made Spears a famous cause for the efforts. reform. Speaking in open court for the first time last month, Spears publicly denounced the guardianship, calling it “abusive.” In tones of grief, frustration and anger, she described in detail her inability to control almost every aspect of her life. Spears added that she was unaware of her right to petition to end guardianship and had previously been unable to choose her own lawyer. Its curators and directors, she said, “should be in jail.”

While Spears’ case is not typical, its high-profile nature has heightened the growing attention to the national problem of abuse, neglect and exploitation of guardianship. Guardianship can deprive individuals of their basic rights and powers that most people take for granted. An adult deemed “incapable” may be unable to decide where to live, how to spend their income, sell real or personal property, what health care to receive or refuse, and even which friends and family to visit. Sometimes guardianship is really necessary, although its scope should be limited as much as possible. Other times, guardianship is too broad and / or implemented without giving due consideration to less restrictive alternatives, which include sustainable financial and health care powers of attorney, beneficiaries of social security representatives and VA trustees. , living wills / advance directives, Health Care Representatives Act 169 (codified at 20 Pa. CS Section 5461), support services and trusts.

The high stakes of guardianship carry a corresponding potential for abuse, neglect and exploitation. Most guardians, whether family members or professionals, are well intentioned and discharge their responsibilities adequately; it is the outliers that attract attention and raise questions about how their wrongdoing has gone unnoticed. These questions have started to occupy more space in the media and the public consciousness. As the outcry over the Spears affair grew earlier this year, Netflix released the thriller “I Care a Lot”, in which a for-profit manipulative tutor takes advantage of broken systems to prey on the wealthy. the elderly. While the plot turns out to be sensational, the basic premise is sadly not that far-fetched, as the Guardian newspaper recounted in a story to coincide with the film’s release. (David Smith, “99% of the world has no idea:” inside the shocking legal guardianship industry. February 18, 2021).

One scandal highlighted in this article took place in Nevada, where an explosive investigation published in the New Yorker in 2017 greased the cogs of guardianship reform. (Rachel-Aviv, “How the elderly lose their rights.”October 2, 2017). Today, Nevada represents the “gold standard” of adult guardianship across the country. The three pillars of its successful reform efforts, which should serve as a model for Pennsylvania, are: (1) the automatic statutory right to counsel for all adults in guardianship and guardianship; (2) a codified protected persons bill of rights and other due process improvements; and (3) establishment and adequate funding of a State Guardianship Compliance Office.

In Pennsylvania, advocates have already taken several steps to improve the adult guardianship landscape. Based on the recommendations of the statewide Elder Law Task Force, in 2015, the Pennsylvania Supreme Court established the Office of Elder Justice in Courts and a corresponding advisory council. SeniorLAW Center (SLC) is an appointed member of the Task Force and Council, and we are proud to be a part of the transformative work led by Supreme Court Justice Debra Todd, Senior Justice Paula Ott and Lawyer Zygmont Pines . One of the most significant achievements of these bodies was the 2018 implementation of the Guardianship Tracking System, which standardizes guardianship reporting across the Commonwealth and improves guardianship monitoring and data collection. In addition, potential guardians are now required to submit a criminal record check for each state in which they have resided in the past five years. And, in late 2020, the Advisory Board and others collaborated to publish the Pennsylvania Guardianship Bench Book, a best practice resource for judges, lawyers, and other guardianship stakeholders. The Bench Book is available online at https://www.pacourts.us/judicial-administration/judicial-education.

These steps certainly mark progress for Pennsylvania, which recently experienced its own trusteeship scandal. As reported in The Philadelphia Inquirer, three people who previously served as court-appointed guardians in six counties are accused of embezzling more than $ 1 million from 108 victims, i.e. clients under guardianship. (Julie Shaw, “3 court-appointed guardians embezzled more than $ 1 million from 108 victims, says Delco DA. “October 21, 2019.) All three are currently awaiting trial.

Guardianship and the abuses that can arise after its implementation can affect people from all walks of life and under all circumstances. Anyone, for example, can suffer from decisions about medical care or living conditions made by a guardian of the person who does not have their best interests in mind. And while wealthier people are at risk of losing more money or assets to an exploitative estate custodian, they are also more likely to have had the resources to engage in personal planning. and inheritance earlier in their life. Such advance planning can protect assets and often avoids guardianship down the line. Additionally, adults and families with more resources who wish to litigate a guardianship case can afford to hire lawyers in private practice.

Recognizing the various challenges and obstacles faced by low-income people facing or under guardianship, and the scarcity of free legal assistance in this area, SLC launched a project entitled “Access to justice under guardianship” in October 2020 ( made possible through funding from the Independence Foundation and pro bono assistance from Stephen A. Feldman of Feldman & Feldman). SLC’s mission is to pursue justice for older Pennsylvanians, especially the most vulnerable. Our diverse staff of over 40 attorneys and advocates serve over 10,000 seniors each year in a wide variety of critical legal issues.

The “Access to Guardianship Justice” project aims to defend the interests of low-income seniors who face guardianship proceedings or who live from exploitation, neglect or other problems involving a guardian appointed by the tribunal. We provide full representation to older Philadelphians facing or under guardianship; we counsel older Pennsylvanians with questions about guardianship through the PA SeniorLAW helpline (1-877-PA SR LAW); we advocate for legislative and policy changes to reform guardianship and improve access to justice for older people; and we educate the community on guardianship and less restrictive alternatives. With help from the Penn Memory Center and other partners, SLC is now exploring how to expand supported decision making – a practice increasingly used to avoid guardianship for “young” adults with stable intellectual and developmental disabilities – to a population of older adults who may experience a gradual evolution. cognitive decline.

Already, the need for the involvement of legal services in guardianship defense matters has become evident. Some of the most common issues addressed by the project are professional guardians who fail to respond or cooperate, and plenary guardianship requests filed for inappropriate reasons or supported by inadequate / low-quality medical testimony. For example, health care providers may fail to identify reversible causes of disability and may fail to assess an adult’s true cognitive and functional abilities. In addition, although limited guardianship is sufficient in some cases, for example to allow the collection of financial documents in support of a Medicaid claim and subsequent recertification, requests for full control of the person and the estate are the rule and not the exception.

With the momentum of the Spears affair and the renewed media and public interest in the Trusteeship, now is the time to push for reform. Pennsylvania is expected to start with right to counsel legislation, which was introduced in the 2019-2020 Senate session, but was subsequently suspended. New advocacy efforts will benefit from increased public awareness of the issues that still plague Commonwealth trusteeship systems. SeniorLAW Center invites the legal community to join in this important work.

Valerie L. Snow is a lawyer and a member of the Independence Foundation at the SeniorLAW Center. She can be reached at [email protected].

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