Fleming & Curti, P.L.C. - Judicial Oversight Might Help Reduce Abuse By Conservators

JANUARY 16, 2006 VOLUME 13, NUMBER 29

Judicial Oversight Might Help Reduce Abuse By Conservators

It happens at least once every few years. Somewhere in the country a newspaper reports that guardians sometimes take advantage of their wards, the legal system expresses shock and outrage, and a task force is created to address what is tagged in the public consciousness as systemic abuse by guardians and conservators. Reliably, politicians and judges can be counted on to use the phrase “society’s most vulnerable” when describing how urgent the problem has become.

It has happened in Arizona, in Florida, in Washington State, in New Jersey and, as of last month, in California. The Los Angeles Times ran a four-part series exposing professional conservators (California uses that term to describe what other states, including Arizona, would call both guardians and conservators) who overcharge the estates they manage, fail to adequately monitor care or even the well-being of wards, and intervene too quickly and with too little notice to the wards and their families. At least three state legislators immediately introduced bills—some of them modeled on Arizona’s regulatory system—that would subject professional conservators to closer oversight and possible licensing. The Chief Justice of the California Supreme Court created a top-level task force of judges (devoid, as it happens, of elder advocates, professional conservators or affected seniors) to study the problem. Letters to the newspaper are filled with stories of abuse and an uncaring system.

We have a modest suggestion that might save the time and expense of studies or new government agencies. If judges (who already have the power—and the duty—to monitor and regulate guardians and conservators) are trained and supported in their efforts, the dimensions of the problem will shrink substantially. Oh, yes—there is one other thing: the judges will need to be given sufficient staff and other resources to actually perform their jobs adequately.

There is no doubt that some guardians and conservators charge too much, do too little and make bad decisions for their wards. Anecdotal evidence suggests that family members are at least as likely to make those mistakes as professionals—perhaps more likely. But guardians and conservators are appointed by and answerable to judges. Those judges already have the authority to insist on adequate documentation and professionalism. Too often they don’t have the time, staff or training to do it well or consistently. Giving the judicial system the resources it needs might be a good first step.

That is precisely the approach being tried in some courts, including the Pima County (Tucson) Arizona probate court (guardianship and conservatorship issues in Arizona and many other states are the province of semi-specialized courts that also handle probate, mental health and a few other issues). After a number of high-profile cases in Tucson and elsewhere in Arizona, the state established a registration system for professional fiduciaries, and that system has become considerably more complicated. At the same time, and arguably more effectively, the probate courts in Tucson and other locales have adopted requirements that actually reduce abuses:

Conservators must post a "surety bond" in practically every case. The bond protects against bad investment decisions and outright theft, and is required of family members as well as professionals. That puts the insurance company issuing the bond on the court's side, interested in monitoring the conservator's actions.
Initial appointment proceedings are almost never held without advance notice to the ward, appointment of an attorney and an indication that the attorney has met with the ward. Wards are encouraged to attend hearings (though most still do not), and family members and others are interviewed by court-appointed investigators to be sure that everyone has an opportunity to express their concerns and hopes. Emergency hearings do take place, but there is almost never an emergency that would prevent at least a day's notice of the legal proceedings.
Annual accountings are required from every conservator, and reports on the ward's welfare are required from every guardian. The judges actually read the reports, and follow up when they raise questions—and they do raise questions.
Each annual accounting must include not just a reconciliation of bank accounts, but actual copies of statements showing that the claimed money really does exist. That keeps the conservator from fabricating an accounting that balances but has no relationship to the actual facts.
When something—anything—doesn't look right, the judges appoint an investigator to look into the ward's location, condition and welfare, or an attorney to represent the ward's interests.
Most importantly, the judges handling the appointment of guardians and conservators and the annual reviews understand that they are effectively the ward's guardian and/or conservator, and that the appointed fiduciary is acting as the judge's agent. Staff are utilized to help in the review of accountings and reports (most judges, trained as lawyers, have little or no accounting or social work background).

We do hope you will pardon us our cynicism, but wouldn't it make sense to address the problem in a constructive way, in the way that the legal system and the government are expected to work, before imposing a new regulatory structure? Especially if, as we anticipate, the proposed licensing, or ombudsman, or other system exempts family members (who often will have the poorest training and the most obvious conflicts of interest), banks and trust companies, public guardians, lawyers and other categories of guardians? Much has been done in Tucson and elsewhere, but much more should be done. Judges could use more staff and even better training. Occasionally it would be useful for the courts to have access to expertise to help resolve the most difficult cases. It might be heresy to suggest that government spending is necessary to effect an important government purpose—but the wards are, after all, among society’s most vulnerable individuals.