[Senate Hearing 108-117]
[From the U.S. Government Publishing Office]
S. Hrg. 108-117
GUARDIANSHIP OVER THE ELDERLY: SECURITY PROVIDED OR FREEDOMS DENIED?
=======================================================================
HEARING
before the
SPECIAL COMMITTEE ON AGING
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
WASHINGTON, DC
__________
FEBRUARY 11, 2003
__________
Serial No. 108-3
Printed for the use of the Special Committee on Aging
86-496 U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2003
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpr.gov Phone: toll free (866) 512-1800; (202) 512�091800
Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001
SPECIAL COMMITTEE ON AGING
LARRY CRAIG, Idaho, Chairman
CONRAD BURNS, Montana JOHN B. BREAUX, Louisiana, Ranking
RICHARD SHELBY, Alabama Member
RICK SANTORUM, Pennsylvania HARRY REID, Nevada
SUSAN COLLINS, Maine HERB KOHL, Wisconsin
MIKE ENZI, Wyoming JAMES M. JEFFORDS, Vermont
GORDON SMITH, Oregon RUSSELL D. FEINGOLD, Wisconsin
JAMES M. TALENT, Missouri RON WYDEN, Oregon
PETER G. FITZGERALD, Illinois BLANCHE L. LINCOLN, Arkansas
ORRIN G. HATCH, Utah EVAN BAYH, Indiana
Elizabeth Dole, North Carolina THOMAS R. CARPER, Delaware
TED STEVENS, Pennsylvania DEBBIE STABENOW, Michigan
Lupe Wissel, Ranking Member Staff Director
Michelle Easton, Staff Director
(ii)
C O N T E N T S
----------
Page
Opening statement of Senator Larry Craig......................... 1
Statement of Senator Susan Collins............................... 2
Prepared statement of Senator John Breaux........................ 4
Panel I
Jane M. Pollack, New York, NY.................................... 4
Michael S. Kutzin, Attorney at Law, Goldfarb & Abrandt, New York,
NY............................................................. 28
Panel II
A. Frank Johns, Attorney at Law, Greensboro, NC.................. 39
Diane G. Armstrong, Consultant and Author, Santa Barbara, CA..... 73
Penelope A. Hommel, Co-Director, The Center for Social
Gerontology, Ann Arbor, MI..................................... 97
Robin A. Warjone, Seattle, WA.................................... 119
Robert L. Aldridge, Attorney at Law, Boise, ID................... 135
APPENDIX
Comments on Guardian Accountability and Monitoring By Erica F.
Wood, Associate Staff Director, American Bar Association
Commission on Law and Aging.................................... 151
(iii)
GUARDIANSHIP OVER THE ELDERLY: SECURITY PROVIDED OR FREEDOMS DENIED?
----------
TUESDAY, FEBRUARY 11, 2003
U.S. Senate,
Special Committee on Aging,
Washington, D.C.
The committee met, pursuant to notice, at 10 a.m., in room
SD-628, Dirksen Senate Office Building, Hon. Larry E. Craig
(chairman of the committee) presiding.
Present: Senators Craig, Collins, and Carper.
OPENING STATEMENT OF SENATOR LARRY E. CRAIG, CHAIRMAN
The Chairman. The Special Committee on Aging of the U.S.
Senate will come to order.
My colleague and ranking member, John Breaux, anticipates
being here. There is a lot of activity going on on the Hill
this morning, so I am not expecting a large turnout of
Senators.
What is important about this committee is that it is called
a ``nonauthorizing committee'' but it is an investigative
committee that builds a record for Senators to look at in the
shaping of public policy. So your presence here today even in
the absence of a large crowd attending is extremely important
for this committee and for the Senate as we grapple with an
aging population in this country and their responsibilities and
their rights. That is what this is all about this morning.
Today we are going to explore the issue of guardianship
imposed over the elderly. This committee originally addressed
abuses of the guardianship system in the early nineties through
roundtable discussions that produced a series of
recommendations. It is now time to take a close look at how far
we have come on this issue of great importance to our Nation's
seniors.
Guardianships are a judicial intervention allowing for the
management of an elderly adult's personal affairs and property.
When used correctly in very extreme cases, guardianship can be
an important tool in securing the physical and financial safety
of an incapacitated elder. At the same time, guardianship can
divest an elderly person of all of his or her rights and
freedoms that we consider important as citizens in this great
country.
When full guardianship is imposed, the elderly no longer
have the right to get married, vote in elections, enter into
contracts, make medical decisions, manage finances, or buy and
sell property. They cannot even make decisions on where they
want to live. All these rights are taken away from the elderly
and vested in a surrogate decisionmaker--the guardian.
Our investigation has confirmed that some guardianships can
have onerous effects on the elderly. For example, guardianship
may drain the elder's estate, result in protracted legal
proceedings, and substitute the judgment of a total stranger
for those of the elder and their family.
A recent case has come to my attention where a court
actually terminated a marriage pursuant to a guardianship.
Sine people are now living longer, we can expect a
significant increase in the number of vulnerable elders
potentially harmed by the guardianship process. In addition,
the financial management of a significant amount of wealth is
at stake. Studies indicate the baby boomers are expected to
inherit $10.4 trillion in assets in the next 40 years. I am
interested in this issue because our Constitution ensures that
all citizens shall not be deprived of liberty or property
without due process of law.
Also, substantial sums of Federal money, including Social
Security and SSI payments, disability and survivor benefits,
Federal pensions, and welfare benefits, are administered and
potentially misused by guardians. For this reason, I will be
asking the GAO to study the accountability of guardians who are
charged with managing these funds on behalf of the elderly.
Ironically, the imposition of guardianship without adequate
protection and oversight may actually result in the loss of
liberty and property for the very persons whom these
arrangements are intended to protect.
In our effort to provide protection for our seniors, we
must be cautious that our well-intentioned interventions do not
do more harm than good. We have one such case before us here
today. Our first panel is going to visit with us about that
case.
So I welcome Jane Pollack and Michael Kutzin to the
committee to tell us what happened to Mollie Orshansky. We will
play an interview providing background on this case, and then I
will turn to Jane and Michael to discuss the case in testimony
with us.
So if we could start the video at this time, I think it is
very self-explanatory.
Thank you very much. That certainly is a bold introduction
into the issue that this committee is tackling today.
Before I turn to our panel, let me turn to my colleague
Susan Collins for any comments and opening statement she would
like to make.
STATEMENT OF SENATOR SUSAN COLLINS
Senator Collins. Thank you very much, Mr. Chairman.
First let me thank you for calling this morning's hearing
to raise public awareness about guardianship issues and to
educate seniors and their families about the potential misuse
of guardianships.
When an individual becomes mentally or physically
incapacitated and can no longer look after his or her own
health and financial interests, it may very well be appropriate
for the court to appoint someone to serve as his or her
guardian. We should keep in mind, however, that once an
individual is judged incapacitated and a guardianship imposed,
the individual loses most of his or her fundamental rights.
They cannot write a check or use a credit card. They no longer
have control over where they are going to live. They lose their
right to vote and to marry, and their guardianship assumes
control over how much contact they can have with family and
friends. They even lose the right to refuse medical care or
social services.
Moreover, while the reason that the court appoints a
guardian in the first place is to ensure that sound decisions
about money and care are made, there is considerable potential
for abuse in the current system since the guardian assumes
complete control of their ward's finances. We have seen a lot
of examples of those, and I know the chairman is going to get
into that today.
Again I want to thank the chairman for shedding light on
this issue.
I would ask that my complete statement be included in the
record.
The Chairman. Without objection, and thank you very much
for joining us this morning.
[The prepared statement of Senator Collins follows along
with prepared statement of Senator John Breaux:]
Prepared Statement of Senator Susan Collins
Mr. Chairman, thank you for calling this morning's hearing
to raise public awareness about guardianship issues and to
educate seniors and their families about the potential misuses
of a guardianship system that critics say is too often
overzealous and paternalistic, and sometimes even downright
abusive.
When an individual becomes mentally or physically
incapacitated and can no longer look after their own health and
financial interests, it may very well be perfectly appropriate
for the Court to appoint someone to serve as his or her
guardian. We should keep in mind, however, that once an
individual is judged incapacitated and guardianship is imposed,
they lose most of their fundamental rights. They can't write a
check or use a credit card. They no longer have control over
where they are going to live. They lose the right to marry, and
their guardian assumes control over how much contact they will
have with family and friends. They lose the right to refuse
medical care or social services. They even lose their right to
vote.
Moreover, while the reason the court appoints a guardian in
the first place is to ensure that sound decisions about money
and care are made, there is considerable potential for abuse in
the current system since the guardian assumes complete control
of their ward's finances.
For example, an article in the January 2000 edition of
California Lawyer details the case against an employee of the
Riverside County public guardian's office who admitted skimming
$100,000 from her charges. That's just what she admits to
taking. Sources familiar with the case say that the actual
amount stolen could well add up to millions.
What I find particularly troubling is the fact that the
imposition of guardianships appears to be growing rapidly. In
New York, for example, 32,000 guardianships were granted in
1997, up from just 15,000 in 1992. Moreover, this number will
only increase exponentially as the Baby Boom generation ages.
Mr. Chairman, there are alternatives to guardianship for an
incapacitated person. Today's hearing gives us an opportunity
to discuss these less restrictive alternatives, such as living
trusts and durable powers of attorney. It also gives us the
opportunity to determine the extent of any abuses in the
system, and whether reforms are needed. Perhaps most important,
it gives us an opportunity to impress upon all Americans the
importance of advance planning for a future in which they may
no longer be capable of managing their own affairs.
Again, I want to commend the Chairman for calling this
important hearing.
Prepared Statement of Senator John Breaux
I would first like to thank Chairman Craig for holding this
vital hearing on guardianship and some of the pitfalls
associated with it. I would also like to thank all of our
witnesses who have taken time from their busy schedules to
testify before us today. Your testimony will assist the
Committee greatly in determining how best to address some of
these issues of concern that currently exist in the world of
guardianship.
Let me begin by saying that guardianship is not a new issue
to those of us working with and for America's seniors. A
National Guardianship Symposium , which became known simply as
``Wingspread'', was held fifteen years ago, resulted in 31
landmark recommendations to better safeguard the rights of
incapacitated and allegedly incapacitated individuals. A decade
later in 2001, a follow-up conference, ``Wingspan'', showed us
that while progress has been made, we still have much to do.
Abuse, neglect or exploitation of our nation's elderly will
not stand. Whether it be in the form of physical or sexual
abuse, financial exploitation or abuse of the guardianship
processes it must end. To this end, Senator Hatch and I,
introduced the Elder Justice Act yesterday. Our bill builds
upon Wingspan's recommendations by providing for education of
all actors in the guardianship system and by developing
research to determine how to improve this system and the lives
it affects.
Thank you once again, Mr. Chairman for holding this
important hearing. I look forward to hearing from our
witnesses.
The Chairman. Now let us turn to our first panel.
You have already met Jane Pollack through the video as the
niece of Mollie Orshansky. Jane is accompanied by Michael
Kutzin, the attorney for Jane Pollack.
So with that, Jane, please proceed with your testimony, and
welcome to the committee.
STATEMENT OF JANE M. POLLACK, NEW YORK, NY
Ms. Pollack. Thank you.
Good morning, Senators. Thank you for the opportunity to
appear before this committee.
I come here to testify about the nightmares my family
endured to protect my elderly aunt, Mollie Orshansky. Mollie is
best known for developing the Federal poverty line formula in
1963. During her 46-year public service career, Mollie received
many prizes and honors. However, Mollie has said that her
proudest accomplishment was her testimony in 1964 which helped
to end the poll tax.
Mollie did everything possible to plan for her future. She
executed a health care proxy naming me as her agent. She also
established a trust which held all of her assets and designated
her sister Rose as co-trustee so that her money and assets
could be used on her behalf in the event of incapacity.
She purchased a New York apartment in the same building as
Rose, four blocks from her sister Sarah, my mother, and near
her nieces. Mollie planned to move there when the time was
right. Her plans were designed to let her family--not
strangers--care for her and make the necessary health and
financial decisions should she be unable to do so.
In 2001, Mollie's building management contacted Adult
Protective Services. One day, without notifying the family, the
caseworker ordered an ambulance and took Mollie against her
will to the hospital. Although the caseworker and the hospital
were aware that Mollie had interested family, the hospital
instituted guardianship procedures.
Once notified, I arrived in Washington and presented the
proxy. I found Mollie in four-point restraints. Her speech was
slurred, and she was disoriented. I was told that she had to be
restrained and was heavily medicated because she kept trying to
leave for home.
As her agent, my requests to obtain Mollie's release were
denied because of the pending guardianship hearing 7 weeks'
hence. I was told that she was there only for custodial
reasons, and they were waiting for an opening in a nursing
home.
In informed the administrator and the social workers of
Mollie's wishes, plans, and financial arrangements. However,
her discharge was denied, and she remained a prisoner.
During my visits, Mollie often said: ``I did not know they
could do this to me. I cannot live like this.'' Mollie received
little attention. Her physical and mental condition
deteriorated. Mollie was forced into incontinence. Her muscles
atrophied and she could no longer stand or walk. When I was not
there, Mollie was deprived of mental stimulation and social
interaction.
Mollie's rights were trampled, and her health was
dangerously put at risk with each moment in captivity.
I relied upon my legal authority to remove her. It was the
eve of Martin Luther King Day at 7:40 p.m. With a lump in my
throat and my heart pounding furiously, I wheeled Mollie out of
her room and into the lobby. I prayed the guard would not
notice. I took Mollie to a side door and pushed the door open.
Aunt Mollie was free at last.
At 10:15 p.m., I notified the nurses' station to advise
them that Mollie was all right and they need not worry.
However, after 2\1/2\ hours, they did not realize that Mollie
was gone.
In an emergency hearing, the judge voided Mollie's health
care proxy, froze her account, and ordered the temporary
guardian to enlist the New York Police to have Mollie
immediately returned to Washington. Our family lived in fear
that the police would storm Mollie's apartment and drag her
away. Fortunately, we were able to obtain a court order
prohibiting Mollie's removal from New York.
I lost my counterbid for guardian-conservator at the
February hearing in Washington, DC Mollie's court-appointed
attorney supported the court in voiding Mollie's health care
proxy and replacing Mollie as co-trustee of her trust.
Incredibly, Mollie's attorney has never even spoken to her, and
she fought the appeal in Mollie's name.
Her guardian and conservator has done nothing to benefit
her. However, he diverted money from Mollie's trust and has run
up astronomical fees.
In August, the appeals court vacated all the decisions of
the lower court. However, this is not over. A judge still must
decide whether to dismiss the case entirely and whether to
grant requests for reimbursement of expenses and legal fees
from the DC guardianship fund or from Mollie, forcing her to
pay for the errors of the court.
Our family, including Mollie, has so far incurred over
$160,000 in expenses and bills. That is just the money; the
emotional and physical toll is incalculable.
I am hopeful that Congress will enact legislation to
guarantee that the wishes of seniors and their families are
respected so that no other family will suffer the travails that
our family did.
Thank you.
The Chairman. Jane, thank you very much.
[The prepared statement of Ms. Pollack follows:]
[GRAPHIC] [TIFF OMITTED] T6496.001
[GRAPHIC] [TIFF OMITTED] T6496.002
[GRAPHIC] [TIFF OMITTED] T6496.003
[GRAPHIC] [TIFF OMITTED] T6496.004
[GRAPHIC] [TIFF OMITTED] T6496.005
[GRAPHIC] [TIFF OMITTED] T6496.006
[GRAPHIC] [TIFF OMITTED] T6496.007
[GRAPHIC] [TIFF OMITTED] T6496.008
[GRAPHIC] [TIFF OMITTED] T6496.009
[GRAPHIC] [TIFF OMITTED] T6496.010
[GRAPHIC] [TIFF OMITTED] T6496.011
[GRAPHIC] [TIFF OMITTED] T6496.012
[GRAPHIC] [TIFF OMITTED] T6496.013
[GRAPHIC] [TIFF OMITTED] T6496.014
[GRAPHIC] [TIFF OMITTED] T6496.015
[GRAPHIC] [TIFF OMITTED] T6496.016
[GRAPHIC] [TIFF OMITTED] T6496.017
[GRAPHIC] [TIFF OMITTED] T6496.018
[GRAPHIC] [TIFF OMITTED] T6496.019
[GRAPHIC] [TIFF OMITTED] T6496.020
[GRAPHIC] [TIFF OMITTED] T6496.021
[GRAPHIC] [TIFF OMITTED] T6496.022
The Chairman. Michael, do you have testimony?
Mr. Kutzin. Yes, I do, Senator.
The Chairman. Please.
STATEMENT OF MICHAEL S. KUTZIN, ATTORNEY AT LAW, GOLDFARB &
ABRANDT, NEW YORK, NY
Mr. Kutzin. Good morning, and thank you for inviting me to
testify.
My name is Michael Kutzin, and I am a partner in the New
York law firm of Goldfarb & Abrandt. In the audience is my
colleague, George Teitelbaum, who represented Jane in the D.C.
proceedings.
The ordeal that my client, Jane Pollack, and her family
have endured in carrying out the wishes of her aunt, Mollie
Orshansky, demonstrates many of the problems that seniors and
their families often face after falling into the guardianship
whirlpool.
Guardianship statutes generally recite lofty principles of
honoring the wishes of an incapacitated person where possible
and call for a myriad of protections of due process rights. In
addition, so-called modern guardianship statutes such as those
found in New York call for judges to provide flexible solutions
to meet the needs of an incapacitated person, such as limited
guardianships, and to honor the senior's wishes regarding whom
she wants to care for her.
In practice, however, once a guardianship proceeding is
brought against someone, machinery begins that often presumes
that a guardianship is required and runs roughshod over the
wishes of the senior and his or her family.
This is particular true where, as in the case of Mollie
Orshansky and her family, the proceeding is commenced by a
hospital or nursing home, and family members live in another
State. A similar disregard for the wishes of the senior and her
family often occurs where the senior has significant assets.
Both of these factors were present in the Orshansky case.
In this case, once the petition was filed by the hospital,
the judge sought to retain control over the case even though
(1) Mollie Orshansky's family all lived in New York; (2) Mollie
Orshansky owns an apartment in New York City in the same
building as her sister; (3) Mollie Orshansky had established
years before a revocable trust naming her sister Rose as a
trustee to handle her assets if she could not do so herself;
(4) Ms. Orshansky had executed a health care proxy naming her
niece, Jane Pollack, as the person to make medical decisions
for her if she could not do so herself; and (5) Jane Pollack
commenced the guardianship proceeding in New York to assure the
D.C. court that no one was attempting to avoid court scrutiny.
When Mollie Orshansky had been removed from the hospital
and transported to her New York City apartment, the judge named
one lawyer as Mollie's temporary guardian and appointed another
attorney from a large firm as ``Mollie's attorney.'' This judge
also ordered the temporary guardian to take all steps
necessary, including bringing the police, to have Mollie
Orshansky brought back to the District of Columbia.
In other words, the judge asserted that the mere
fact that someone filed a guardianship petition
presumptively made Ms. Orshansky incapacitated and made her a
captive of the District of Columbia.
In addition to these infringements of Ms. Orshansky's due
process rights, Mollie Orshansky's court-appointed attorney
never bothered to visit or to speak with her and even
represented herself to me as representing the temporary
guardian.
It was in the temporary guardian's financial best interest
to keep the guardianship in the District of Columbia in order
to earn large fees from Mollie Orshansky's assets and, not
surprisingly, Ms. Orshansky's ``lawyer'' acted accordingly.
Fortunately for Ms. Orshansky and her family, the U.S.
Court of Appeals for the District of Columbia in a unanimous
50-page decision reversed the trial court for its myriad
failures to protect Ms. Orshansky's due process rights and for
its abuse of discretion.
Senators, there is a role for guardianship proceedings, but
where seniors and their families are working together for the
senior's best interests, the State must defer to the family.
In light of time restraints, I will refer you to my written
comments where I have made a two-pronged legislative proposal
which I call ``Mollie's Law,'' and I will just have to hope
that you ask me about it.
Thank you.
[The prepared statement of Mr. Kutzin follows:]
[GRAPHIC] [TIFF OMITTED] T6496.023
[GRAPHIC] [TIFF OMITTED] T6496.024
[GRAPHIC] [TIFF OMITTED] T6496.025
[GRAPHIC] [TIFF OMITTED] T6496.026
[GRAPHIC] [TIFF OMITTED] T6496.027
The Chairman. Well, Michael, you set us up pretty well for
that one, but I do thank you for your testimony. Jane,
certainly your testimony and the difficulty of giving it, we
understand, and we appreciate you being here today.
Senator Collins, what is your time line?
Senator Collins. I am fine. Thank you.
The Chairman. OK. Let me proceed, then, with a short series
of questions, and then I will yield to my colleague.
Jane, do you feel that Mollie is being cared for now the
way she originally intended when she started planning for her
own care years ago?
Ms. Pollack. This is exactly what she had originally
intended, Senator. Mollie saw the way her sisters Ann and
Bernice were cared for by the family--and by the way, both of
them lived in the same building that Mollie is living in now.
The Chairman. That is where Mollie is now?
Ms. Pollack. That is correct.
The family was there to care for them, to rally around
them, to visit them, and this was very important to my Aunt
Bernice and my Aunt Ann, and it was very important to us to be
able to do that. This is exactly what Mollie wanted for
herself.
The Chairman. Can you tell us about the financial cost--you
mentioned it--that your family has endured in this battle, and
to what degree was Mollie's estate depleted by the guardians
appointed to manage her assets?
Ms. Pollack. The amount that it will eventually be depleted
is at this point still being ruled upon. We have a hearing in
March. Thus far, between amounts that have been paid and
amounts that have been billed, it is approximately $160,000;
and I can give you some examples, and I will read from my
written statement if you do not mind.
Our family, including Mollie, has so far incurred over
$160,000 in expenses and bills. This includes almost $50,000
claimed by the guardian for services rendered; over $18,000 for
the colleague he hired from his law firm to fight the appeal;
over $6,000 already paid to the guardian as Mollie's original
court-appointed lawyer; approximately $13,000 already paid to
the guardian in administrative expenses; and my legal fees for
Mollie's rescue, which are at least $75,000, covering
Washington, DC, and New York.
That is just the money, Senator. The emotional toll and the
stress on the family is just incalculable.
The Chairman. Absolutely.
Michael, let me turn to you and ask the question that you
have asked of us, because it is important in building a record.
Do you see a Federal role here, and what might that be?
Mr. Kutzin. Thank you, Senator.
Yes, I do. As I said in my written statement, I have made a
two-pronged proposal which I have suggested be called
``Mollie's law,'' because frankly, it was this case that
inspired me to even think of it. Again, I understand and I
recognize the fact that guardianships by their nature are State
proceedings, and they should remain State proceedings, and we
have to be careful about where the Federal Government
intervenes in things that are properly State Government
activities.
However, there are two appropriate things that the Federal
Government can do, one of which is, because of the fact that
most institutions are in fact Medicare or Medicaid recipients,
hospitals and nursing homes and other such institutions that do
receive these Federal funds should be precluded by Federal law
from seeking guardianships where they are aware of or should be
aware of the fact that there are these sorts of legal
instruments out there called ``advance directives,'' such as
durable powers of attorney, health care proxies, or the person
has assets in a revocable trust.
The other prong of the suggestion is that where there are
``dueling jurisdictions,'' such as what happened here in the
Mollie Orshansky case, where the family members have brought an
action in a different jurisdiction--and we are not talking, by
the way, Senator, about disputes in the family where a brother
is with mom and the sister and another brother are somewhere
else, fighting within the family; I am talking about a united
family versus the institutions--there should be deferral to
where the family is. In that case, the District of Columbia
court in my example would have dismissed its case in favor of
the New York court.
The Chairman. Well, I thank you for making those
recommendations, because you obviously preface them in a way
that is appropriate, and that is where does the responsibility
currently lie. I would err on the side of that, of State law at
this moment; at the same time, there is a Federal nexus as it
relates to care and Federal dollars, and that is where we may
well explore what might be done here to avoid or attempt to
avoid something like Mollie's situation.
Was there any basis at all for the Superior Court's
decision to disregard the prior planning that Mollie had in
place?
Mr. Kutzin. Are you asking me, or----
The Chairman. Yes, I am asking you.
Mr. Kutzin. I do not believe so. I believe what happened
here was the fact that the District of Columbia court was
trying to ``punish'' Jane. I use that in quotes again because I
think it is a highly inappropriate way to even look at
guardianship proceedings. In fact, the judge on a number of
occasions said, ``I am not going to reward Jane Pollack. . .
,'' blah, blah, blah, because she felt that Jane had acted in a
cavalier manner--I do not agree with that, but I think the
judge felt that way--by removing her from the hospital and in
fact removing her from the judge's jurisdiction.
I think there is a perception that the judge had about this
being a reward for Jane Pollack, and I would like to dispel
that right now. Being someone's guardian is not a reward for a
loved one. It is a responsibility, and it is a very serious
responsibility. When you take care of a senior citizen,
especially someone you really love and care about, it means
your whole life is disrupted.
Jane Pollack has been in and out of courts, she has been in
and out of attorneys' offices, she has been in and out of
hospitals, she has been in and out of all kinds of facilities.
Her life has revolved instead of around her own family--and
when I say ``her own,'' her husband and her teenage son--she
has been running around as the caretaker for Mollie Orshansky.
That is not a reward. It is a responsibility that family takes
seriously, and it should not be looked at as a reward.
The Chairman. I thank you.
Let me turn to my colleague, Senator Collins.
Susan.
Senator Collins. Thank you, Mr. Chairman.
First, I want to thank both of you for your extremely
compelling and very troubling testimony. What bothers me most
is that this is not a case where the senior citizen did not
look ahead, did not plan, did not file the documents. Instead,
it looks to me as if Ms. Orshansky did everything right--she
had established a revocable trust naming her sister as the
trustee to handle her assets if she could not do so; she
executed the health care proxy naming her niece as the person
to make medical decisions for her if she could not do so.
So, Mr. Kutzin, I would ask you, is there anything else
that Ms. Orshansky and her family could have done to avoid the
very unfortunate situation that developed?
Mr. Kutzin. I guess not getting sick, but seriously----
Senator Collins. I mean legally.
Mr. Kutzin. Yes. The only document that could have been
signed in addition would have been a durable power of attorney.
In this case, though, it really was not an impediment to
managing her financial affairs because she did have a revocable
trust, all of her assets were in that trust, and what is more,
she had assigned all of her pension rights to that revocable
trust.
So no moneys were ever escaping the control of either
Mollie, when she was well, or later, her sister Rose, when her
health was failing.
Senator Collins. That is what is most shocking to me. This
is not a case where the court stepped in because there was not
clear legal guidance from the person affected, and that is what
makes it all the more troubling to me.
Mr. Kutzin, I would ask you how common is it for a hospital
or a nursing home to file this kind of proceeding on behalf of
a patient, particularly when there were clearly family members
who were ready and willing to assume responsibility for the
care of the loved one?
Mr. Kutzin. Senator, I have not seen it in my practice that
often, and certainly not where there are these sorts of
prophylactic measures. I practice in New York, so obviously, I
cannot speak for what goes on in DC or other jurisdictions.
But it is commonly understood that the courts, certainly in
New York, will not even entertain a case like this where there
are these sorts of advance directives, or they will only do so
when there is some sort of compelling reason to override those
advance directives. So I find it to be quite unusual.
Senator Collins. If Ms. Orshansky had not had significant
financial assets, do you think that the institution would have
stepped in to file a petition?
Mr. Kutzin. I do not believe so, Senator.
Senator Collins. The reason I ask you that is because I was
struck by a quote from a USA Today article that was included in
the written testimony of Diane Armstrong, who will be appearing
on our second panel today. It says: ``For every $100,000 in a
given estate, a lawyer shows up; for every $25,000, a family
member shows up; and if there isn't any money, then nobody
shows up.'' Are financial motives what are driving this
problem?
Mr. Kutzin. I think to a large measure that is true. Now,
as I have stated earlier--or at least I believe I stated
earlier--there are times when guardianships are in fact called
for and where it is needed for someone's finances or to make
sure that they are properly being taken care of. But often, you
will see people jumping into the guardianship fray when they
see someone who is either a senior citizen or who may be frail
or may have some sort of incapacity, and they will jump into
the fray because there is a lot of money there.
I had a case recently in New York where that was exactly
what happened. The person was dull normal to possibly being
somewhat mildly retarded, and two lawyers jumped in, started a
guardianship proceeding, and eventually guardians were
appointed. I represented the alleged incapacitated person and
tried to fight it. There is no question what motivated it here.
Senator Collins. Thank you very much.
The Chairman. Senator, Thank you.
Jane, we will give you the last word. You have been through
a very difficult time, and we thank you for your persistence in
behalf of a loved one.
If you had to recommend one change in the way the
guardianship system treats the elderly, what might that be?
Ms. Pollack. I believe that it would have to be that
something has to be put in place to assure that the wishes and
the plans of the senior or the incapacitated are honored,
unless there is some extremely compelling reason why they
should not be.
I think that when organizations such as Adult Protective
Services get involved, before they are allowed to--how can I
put this--before they are allowed to initiate or instruct the
initiation of guardianship proceedings, that they have evidence
instead of innuendoes, that they have proof that there is some
reason to disregard a person's wishes, that if there is a
family that is willing to take charge, that they have proof,
not innuendo, not suspicion, that there is some wrongdoing,
that this person is in danger in being in the family's care.
In Mollie's case, this was not there, and this is really
what started the whole proceedings, because APS was very
knowledgeable and had been speaking to my sister Eda. APS knew
about the family, knew about the family's involvement, knew
about the family's interest. In fact, the first time the APS
worker came to Mollie's house, my brother-in-law was there.
I think there should be some oversight and some reining in
of the authority that APS has and some mandate that they must
have proof before they interfere in the way they did in
Mollie's case.
The Chairman. Thank you both very much for your testimony.
It is extremely value, and we appreciate it.
Mr. Kutzin. Thank you, Senator.
Ms. Pollack. Thank you.
The Chairman. We will now proceed to our second panel.
While they are coming up and the table is being prepared for
them, let me introduce them to the committee for the record.
Thank you, Susan.
Frank Johns is a preeminent guardianship reform scholar and
author of numerous articles addressing the abuse of
guardianship.
Dr. Diane Armstrong, as Senator Collins mentioned, is
author of ``The Retirement Nightmare: How to Save Yourself from
Your Heirs and Protectors.'' Penelope Hommel is co-director of
the Center for Social Gerontology, and she will discuss the
alternatives to guardianship proceedings, including durable
power of attorney, living trust, representative payees and
extra-judicial mediation.
Robin Warjone from Seattle, WA was the subject of a
guardianship petition filed by her three children. She was
forced to spend her entire retirement nest egg, $300,000, to
successfully retain her independence.
Robert Aldridge is an attorney from Boise, an elder law
attorney and one of Idaho's foremost guardianship reforms. He
will discuss Idaho's progressive laws and practices in these
areas. We appreciate all of you being here this morning. With
that, I will follow that order, and Mr. Johns, we will allow
you to proceed.
STATEMENT OF A. FRANK JOHNS, ATTORNEY AT LAW, GREENSBORO, NC
Mr. Johns. Thank you, Mr. Chairman. Thank you for the
opportunity to testify on these issues relating to due process
provided alleged incompetent older persons in guardianship
proceedings.
The focus of my remarks is on the areas that involve due
process within the function of the courts and by the judges
sitting in those courts. Mr. Chairman, I do want to mention
that I appear before the committee with 25 years litigation
experience in guardianship and in writing and research. I am
also a member of the National Academy of Elder Law Attorneys,
of which I am past president and a fellow, and a charter board
member of the National Guardianship Association, two national
organizations, along with the ABA Commission on Law and Aging,
and sections of AARP which have for years given careful
attention to the problems that occur in guardianship and how
they might be remedied.
Mr. Chairman, I ask unanimous consent that my written
statement and the supplemental materials that I have appended
be a part of this hearing.
The Chairman. All of your full statements will be a part of
the record, and I thank you for that.
Mr. Johns. Thank you, Mr. Chairman.
I will forego discussing the history, although it is
noteworthy and might help staff members and committee members
to look at some of the historical comments I give in the
appendix, because guardianship can actually be tracked back
through five different cultures going back to Greece and the
Athenian times.
In this era, however, Senator, let me address the question:
Have all of the statutory reforms that have occurred in the
last 12 years had an impact that benefits those who are caught
in the process?
Quite frankly, the simple answer is ``No,'' and that is why
we are here before you this morning.
In the experience that I have had in the time that I have
dealt with guardianship, what I have found is that there is
both good and evil in the process. The evil comes from--not to
grab a sound bite that is already out there--but there is an
axis of three primary pools of actors arbitrarily dealing with
the process. It is judges, who violate the rule and the spirit
of the law of guardianship. It is social agencies that
intervene when intervention is not focused on the protection of
the best interests of the persons to be served, but only on
their own objectives in the process; and those many family
members knowing nothing of the process and using and abusing
it, of course, when the dollars are more.
I will make one point, however, Mr. Chairman, if you
please. That is that social agencies are going to have to serve
elder citizens of modest means when they are on Medicaid and
incompetent, when they are so vulnerable and at risk in nursing
home environments. Those public agencies are going to be the
ones to whom we look for serving this rather huge volume of
people who are going to need protection. The demographics show
us that those numbers of vulnerable elderly citizens are going
to increase monumentally.
As those numbers increase, budgets of agencies may well be
benefited by the numbers of people served. The problem is there
is no accountability or monitoring within any agency or over
any guardian that well serves the interests of the ones to be
protected.
Careful attention is drawn this morning, Mr. Chairman, to
the judge and to other judges who have arbitrarily exacted what
is called ``parens patriae,'' that is, being the benevolent
protector of us all, and they do it in a way that circumvents
the law and takes issue with what they think is the right thing
to do, but in the wrong way.
The truth of the matter, Mr. Chairman, is that many judges
tend to believe that the ends justify the means, and they are
willing to circumvent the laws that are right there on the
books to deal with those being served in ways that contravene
of the law.
I direct your attention to two primary areas that need
attention. One primary area is that training of judges and the
social agencies that support the guardianship system. This are
absolutely necessary. The second primary area comes from the
literature and the testimony of 1992 and 1993 before this very
committee, when the late Professor John Regan asserted that we
have to pay attention to the demographics, and another speaker
noted that there is no empirical data from which any of our
opinions might be well-grounded.
The research that is most recent only comes from 1994 and
the data, Mr. Chairman, that that research comes from comes
from 1989 and 1990. There is nothing among the States that even
shows how many guardianships are out there.
In the difficulties that occurred in the State of Michigan
3 years ago when the Detroit Free Press did its expose, it
provided documentation of 100,000 guardianships in the State of
Michigan alone. If it were possible to count the guardianships
in California, or New York, or Texas, the numbers, I believe,
Mr. Chairman, would shock this committee. To believe that 90
percent of those who are guardians have no experience, no
capability of dealing with it, and are not monitored or called
to account is a very difficult proposition.
These propositions were addressed, Mr. Chairman, in the
second National Guardianship Conference called Wingspan which
was held in late 2001. I identify the recommendations that deal
sole with due process, and then I highlight three of those
recommendations that are critical to this committee's attention
in terms of investigating where it should go with what it finds
to be problems in the system. I address those three
recommendations, the first one being the funding of a major
grant narrowly focused on research that would be nationwide,
giving us a primary database in guardianship for the first
time.
The second recommendation is to identify Federal assistance
that is already out there, and refocusing it to investigate of
ways to implement accountability and monitoring by the very
public agencies that are in the States that are receiving
Federal funding as we speak.
The third recommendation is to investigate ways by which
judges might be trained to know that the due process components
of the law must be scrupulously exacted in every courtroom, for
every case.
Mr. Chairman, I suggest that the National College of
Probate Judges, an august group of probate judges from around
the country, would be a wonderful partner in designing ways by
which training and the implementation of their standards could
take effect in every county across the country.
The Chairman. Frank, thank you very much for that
testimony. It is valuable and important, and we do appreciate
it.
Mr. Johns. Thank you, Mr. Chairman.
[The prepared statement of Mr. Johns follows:]
[GRAPHIC] [TIFF OMITTED] T6496.028
[GRAPHIC] [TIFF OMITTED] T6496.029
[GRAPHIC] [TIFF OMITTED] T6496.030
[GRAPHIC] [TIFF OMITTED] T6496.031
[GRAPHIC] [TIFF OMITTED] T6496.032
[GRAPHIC] [TIFF OMITTED] T6496.033
[GRAPHIC] [TIFF OMITTED] T6496.034
[GRAPHIC] [TIFF OMITTED] T6496.035
[GRAPHIC] [TIFF OMITTED] T6496.036
[GRAPHIC] [TIFF OMITTED] T6496.037
[GRAPHIC] [TIFF OMITTED] T6496.038
[GRAPHIC] [TIFF OMITTED] T6496.039
[GRAPHIC] [TIFF OMITTED] T6496.040
[GRAPHIC] [TIFF OMITTED] T6496.041
[GRAPHIC] [TIFF OMITTED] T6496.042
[GRAPHIC] [TIFF OMITTED] T6496.043
[GRAPHIC] [TIFF OMITTED] T6496.044
[GRAPHIC] [TIFF OMITTED] T6496.045
[GRAPHIC] [TIFF OMITTED] T6496.046
[GRAPHIC] [TIFF OMITTED] T6496.047
[GRAPHIC] [TIFF OMITTED] T6496.048
[GRAPHIC] [TIFF OMITTED] T6496.049
[GRAPHIC] [TIFF OMITTED] T6496.050
[GRAPHIC] [TIFF OMITTED] T6496.051
[GRAPHIC] [TIFF OMITTED] T6496.052
[GRAPHIC] [TIFF OMITTED] T6496.053
[GRAPHIC] [TIFF OMITTED] T6496.054
[GRAPHIC] [TIFF OMITTED] T6496.055
[GRAPHIC] [TIFF OMITTED] T6496.056
[GRAPHIC] [TIFF OMITTED] T6496.057
[GRAPHIC] [TIFF OMITTED] T6496.058
The Chairman. Now let me turn to Dr. Diane Armstrong,
author of ``The Retirement Nightmare.'' Doctor, welcome before
the committee.
STATEMENT OF DIANE G. ARMSTRONG, CONSULTANT AND AUTHOR, SANTA
BARBARA, CA
Ms. Armstrong. Thank you, Mr. Chairman. Thank you for
inviting me to testify today.
In discussing the motives that drive these involuntary
conservatorship and guardianship proceedings, I am speaking for
the hundreds of thousands of men and women whose retirement
years have been destroyed by them.
Our States designate these proceedings as
``nonadversarial'' in nature, brought out of the goodness of
the petitioner's heart to help an elderly person in distress.
It is a powerful term, and it is almost always incorrect. These
are court battles fought over money, power, and control. Sadly,
the elderly lose almost 94 percent of the time, often in
proceedings that take only 4 minutes. Their cases are rarely
appealed.
Let us begin with a brief discussion of the motives guiding
family members. The majority of these petitions are filed by
adult children who are seeking some form of control over the
personal or financial affairs of their aging parents. They are
sibling battles rooted in issues of inheritance and control,
often described as ``thinly veiled will contests performed
before death.'' Anyone who reaches 62 with coveted assets is at
risk. As one forensic psychiatrist noted about these so-called
protective proceedings and was quoted a moment ago: ``For every
$100,000 in a given estate, a lawyer shows up; for every
$25,000, a family member shows up; and if there is no money,
nobody shows up.'' I have time to present only one case,
although five more are contained in the appendix you have
before you. I have chosen a typically bizarre family battle.
Motive? Follow the money.
After the death of her husband, Delphine Wagner of Nebraska
decided to lease some of her land to a professional alfalfa
company rather than continue to let her son and son-in-law farm
the land. In so doing, she generated a 160 percent increase in
her income from the leases.
Four of her six children filed conservatorship petitions
against her and testified in court that she could no longer
properly manage her affairs. Their proof? Because she had
generated a 160 percent increase in income, Mrs. Wagner would
have to pay more in taxes; and what person in their right mind
would want to pay Uncle Sam more taxes?
The court agreed with the petitioners and appointed a
conservator over Delphine. Although already 79 years of age,
Delphine had the energy and the money to battle through two
more courts, year after year after year, and her freedoms were
finally restored.
Over 25 percent of the cases I describe in ``The Retirement
Nightmare'' involve proceedings that are initiated by social
workers and members of the social welfare community. What
motives drive these individuals and agencies to file petitions?
A desire to control the increasingly independent elders and
their money, and a need to expand the number of persons
``helped'' by the agency in order to increase agency funding.
What motives drive members of the court? Judges and their
favored professional conservators and guardians, expert
witnesses and court investigators have unspoken agendas of
money, power, and control.
When an elderly individual is brought into court and forced
to prove his or her competence, we soon see that the system
does not work. We have a system rife with court-sanctioned
elder abuse. Why? Judges override protections that have been
put in place in the codes. It happens every day. Judges
disregard durable powers of attorney--the single most important
document each of us can create to determine our care should we
become incapacitated. We have seen the health care proxy
overturned in the Orshansky case. Judges ignore our lists of
preselected surrogate decisionmakers.
The current system does not work. This reality is most
apparent when a wealthy individual falls victim to these
involuntary proceedings and his or her wealth becomes a ripe
plum to be shared by the judge's favorites.
The cost of my mother's 18-month conservatorship battle in
Los Angeles Superior Court exceeded $1 million because no court
appointee would let the matter end until my mother agreed to
settle out of court and pay every bill of every person involved
on both sides of the case.
Money is a lure. Once the hook is set in a wealthy
potential ward, courts have a feeding frenzy. All of Riverside
County in Southern California was held hostage by the collusion
between a single probate judge and his favorite professional
conservator.
Third parties such as nursing homes, hospitals, and
continuing care facilities often require conservatorships or
guardianships over their patients to ensure payment of bills or
to evict the elderly from one setting and place them in
another. In many cases, nursing homes will refuse admittance to
adults who are not represented by court-appointed surrogate
decisionmakers. This practice, while not legal, is often the
price of admission in the face of an increasing demand for the
limited space available in private convalescent centers.
Families are destroyed by these proceedings. The hundreds
of thousands of unfortunate men and women who have been placed
in the velvet handcuffs of contested conservatorships and
guardianships in America are without hope. Their
conservatorships and guardianships end only when they die--or
when the system spends their assets down to $10,000 or less and
spits the wads out into a harsh world of poverty.
Sibling battles rooted in issues of inheritance and
control, social welfare petitions driven by hidden agendas of
power and control, nursing homes that quietly require financial
guarantees, and court actions that create the very abuse they
are tasked to address--our country's involuntary
conservatorship and guardianship system is out of control. It
is no longer a morally permissible option.
I now pose a final question: Is the present hearing merely
a 10-year revisiting of an ongoing problem last discussed by
the Senate in 1991, 1992, and 1993; or are we here to see, for
once and for all, that this court-sanctioned abuse of the
elderly finally comes to an end?
I thank you.
The Chairman. Dr. Armstrong, thank you very much. We will
get back to that provocative ending question in a few moments.
[The prepared statement of Ms. Armstrong follows:]
[GRAPHIC] [TIFF OMITTED] T6496.059
[GRAPHIC] [TIFF OMITTED] T6496.060
[GRAPHIC] [TIFF OMITTED] T6496.061
[GRAPHIC] [TIFF OMITTED] T6496.062
[GRAPHIC] [TIFF OMITTED] T6496.063
[GRAPHIC] [TIFF OMITTED] T6496.064
[GRAPHIC] [TIFF OMITTED] T6496.065
[GRAPHIC] [TIFF OMITTED] T6496.066
[GRAPHIC] [TIFF OMITTED] T6496.067
[GRAPHIC] [TIFF OMITTED] T6496.068
[GRAPHIC] [TIFF OMITTED] T6496.069
[GRAPHIC] [TIFF OMITTED] T6496.070
[GRAPHIC] [TIFF OMITTED] T6496.071
[GRAPHIC] [TIFF OMITTED] T6496.072
[GRAPHIC] [TIFF OMITTED] T6496.073
[GRAPHIC] [TIFF OMITTED] T6496.074
[GRAPHIC] [TIFF OMITTED] T6496.075
[GRAPHIC] [TIFF OMITTED] T6496.076
[GRAPHIC] [TIFF OMITTED] T6496.077
[GRAPHIC] [TIFF OMITTED] T6496.078
[GRAPHIC] [TIFF OMITTED] T6496.079
The Chairman. Now let me turn to Penelope Hommel. Welcome
before the committee, and please proceed.
STATEMENT OF PENELOPE A. HOMMEL, CO-DIRECTOR, THE CENTER FOR
SOCIAL GERONTOLOGY, ANN ARBOR, MI
Ms. Hommel. Thank you, Mr. Chairman. It is indeed a
privilege to be before you today to discuss the very serious
issues of guardianship.
However, what I have been asked to do is not to speak
directly about problems with guardianship but rather to talk
about two alternative approaches that might provide another way
of looking at this very difficult and serious issue.
The two approaches are the use of mediation in guardianship
cases and advance planning for alternative mechanisms that
might avoid guardianship in the event of later incapacity.
For a couple of reasons--one, because mediation is the one
that you are less likely to be familiar with, and two, because
we have already heard about some of the alternative mechanisms,
both their potential strengths and their weaknesses--I am going
to devote the bulk of my comments to mediation.
As background, I would like to explain how we arrived at
the idea of mediation. The Center for Social Gerontology, along
with others at this table and from across the country, had been
working on guardianship reform, trying to improve protections
for older people, since the 1970's. As you have already heard,
a fair amount of success was achieved, and many of the State
statutes were revised so that on paper, at least, many of the
concerns were addressed.
However, in the late 1980's, we began to realize two things
that made us look for another alternative. First, we realized
that while the statutory changes promised greater protections,
they also pushed guardianship hearings to become more formal
and more adversarial, and we questioned whether for many of the
cases, the adversarial model was the best approach. It can
result not only in the significant economic and emotional costs
we have already heard about, but it can result in the
magnification, rather than the resolution, of differences among
the parties who are facing very difficult situations.
It typically results in a win-lose situation and may
foreclose dialog among the parties at a time when it is most
desperately needed.
The second thing we noticed was that as Frank Johns has
already mentioned, the implementation of the statutes was
nowhere near keeping pace with the written law and that the
protections that existed on paper did not exist in reality in
many cases. Perhaps most important, older persons at risk of
guardianship continued to have little or no role in the process
and were not even present at the guardianship hearings which
would decide their capacity and their need for a guardian.
Thus, while we continued to work for statutory reform and
implementation, we also looked for a nonadversarial alternative
process that might be more meaningful in addressing many of the
complex needs and disputes in guardianship cases, and we found
it in mediation.
While we consider guardianship only as a last resort in all
of our work, we particularly felt that in pursuing mediation,
it might be helpful in finding less restrictive alternatives.
So in 1989, we sought and received funding from the United
States Administration on Aging to test the use of mediation,
and we have continued to develop it since that time in a number
of States across the country.
A recent evaluation that we conducted showed that the
parties and the attorneys believe that in appropriate cases, it
can be very effective in finding more satisfactory resolution,
such as fewer guardianships, and resolutions that preserve
family relationships rather than destroy them as often happens
with contested court decisions.
What is mediation? It is a facilitated discussion among the
parties in an informal and confidential setting that can occur
at any point in the process. The mediator serves as a neutral
facilitator, not as a judge, not as a decisionmaker. The
parties are the ones who decide how the matter will be
resolved. It is the mediator's role to guide the process in a
way that leads to better understanding among the parties,
clarifies issues, draws out ideas for resolution, and builds
consensus that can make agreement by all the parties possible.
While a court's response in a guardianship petition is
limited to a simple statutory solution to appoint a full or
limited guardian or dismiss the case, mediation can focus on
other, underlying and important needs and interests of the
people at the table and can focus on solving issues that they
bring to the table. It can help people explore alternatives and
options other than guardianship, because often petitions for
guardianship are brought with the idea that guardianship is the
only solution, the only alternative ways to go.
Issues in mediation tend to revolve around safety,
autonomy, living arrangements, and financial management.
Oftentimes, the mediators find that the legal issues presented
in the court petition have little to do with the issues that
are below the surface that are really causing the family
turmoil. For example, while the surface issue and battle may be
over who should be guardian, the real issue may be longstanding
sibling rivalries and controversies over inheritances.
Mediation can help the families identify and talk through some
of those underlying issues and try to reach a better
understanding and resolution. Often, the primary issue is one
of safety versus autonomy--to what extent is an older adult
allowed to make what others may consider to be bad decisions?
Are family members attempting to control decisions that should
not be theirs to make?
For the court, the question is whether there is sufficient
evidence to show that the older person needs a guardian. For
mediation, the issue is resolving the real underlying issues,
needs and problems that present in so many of these cases.
In addition to the potential benefits, however, I want to
just mention some of the limitations of mediation. From the
moment we thought about this as a possible alternative
approach, we recognized that it needed to be approached very
carefully and that special policies and procedures needed to be
in place, most particularly to safeguard the older person
alleged to be incapacitated. So we have made sure that in any
mediation programs that go forward, issues of confidentiality,
protection of the respondent, appropriate and inappropriate
cases--because certainly not all cases are appropriate for
mediation--are carefully considered.
In terms of where we are today, I think we are at a very
exciting point. We have found that mediation can be extremely
useful. However, what we have also found is that we become
aware of with experience is that by the time the people are on
the courthouse steps, by the time the guardianship petition has
been filed, it can often be too late for the families and
interested parties to come together and really resolve their
disputes. People are entrenched in their positions and have, in
effect, dug in their heels.
We also realized that in addition to trying to get to cases
earlier on, many, many of the issues that we were dealing with
in mediation were in fact family caregiver issues, and this
coincided with the recognition by Congress, as well as by the
aging network overall, of the critical importance of family
caregivers in providing long-term care and assistance to older
persons.
So we have recently applied to the Administration on Aging
and received funding to test an expanded version of mediation
that goes beyond strictly guardianship cases where the petition
has been filed and looks at pre-petition caregiver cases. We
are looking to the aging network to identify caregiving
families that are in need of some assistance in addressing the
very difficult issues that they are confronting and the
pressure and the tensions, and as a way of possibly avoiding a
future need to petition for guardianship.
So far, the response has been tremendous. In one of the
cases that we mediated, a care manager indicated that in 2\1/2\
hours of mediation, more was achieved than in over a year of
casework in that particular situation. So we see tremendous
potential for this.
I do not have time to go into any of the other
alternatives. I would just like to conclude by saying that we
are so thankful to you, Senator Craig for having this hearing.
We look forward to continuing to work with you, not only on the
serious issues of this nations' guardianship systems but also
on the potential of mediation to help support caregiving
families in this family and also, hopefully, to avoid or
restrict the use of guardianship for those situations.
Thank you.
The Chairman. Penelope, thank you, and thank you for
focusing on the dimension of mediation. I think that that is
important to understand.
[The prepared statement of Ms. Hommel follows:]
[GRAPHIC] [TIFF OMITTED] T6496.080
[GRAPHIC] [TIFF OMITTED] T6496.081
[GRAPHIC] [TIFF OMITTED] T6496.082
[GRAPHIC] [TIFF OMITTED] T6496.083
[GRAPHIC] [TIFF OMITTED] T6496.084
[GRAPHIC] [TIFF OMITTED] T6496.085
[GRAPHIC] [TIFF OMITTED] T6496.086
[GRAPHIC] [TIFF OMITTED] T6496.087
[GRAPHIC] [TIFF OMITTED] T6496.088
[GRAPHIC] [TIFF OMITTED] T6496.089
[GRAPHIC] [TIFF OMITTED] T6496.090
[GRAPHIC] [TIFF OMITTED] T6496.091
[GRAPHIC] [TIFF OMITTED] T6496.092
[GRAPHIC] [TIFF OMITTED] T6496.093
[GRAPHIC] [TIFF OMITTED] T6496.094
[GRAPHIC] [TIFF OMITTED] T6496.095
[GRAPHIC] [TIFF OMITTED] T6496.096
[GRAPHIC] [TIFF OMITTED] T6496.097
[GRAPHIC] [TIFF OMITTED] T6496.098
The Chairman. Let us now turn to Robin Warjone of Seattle.
I mentioned earlier that she was the subject of a guardianship
petition filed by her three children.
Please proceed.
STATEMENT OF ROBIN A. WARJONE, SEATTLE, WA
Ms. Warjone. Hi, everybody.
In May 2000, I was 56 years old with grown children 30, 31,
and 26. I lived in my own home with a high yearly income of
about $140,000 and a vigorous investing program which included
T-bills, IRAs, and a small portfolio.
I would have had $7,000 minimum each month after I was 65.
Now I will have less than $2,000.
After my divorce, I left behind an exhausting life as a
professional executive wife, and I stopped entertaining, gave
up as much cooking and cleaning as I could possibly manage. I
was living very happily in my messy house. I had a small
antique shop in a large mall. I was gathering items for the
shop, which I enjoyed, and that made for dozens of boxes around
my house.
I had a new man friend. I remember how often the stars
spread in all their glory across the night sky that winter. It
was the happiest year I had had in 15 years.
Today, after being nearly destroyed by a financially and
emotionally exhausting guardianship law suit which lasted
almost 11 months, from May 18, 2000 until March 29, 2001, it
cost me nearly all I had.
The first hint that trouble was coming in the spring of
2000, was when my lawyer completed revision of my revocable
trust and phoned my three children to come in and sign it. They
refused, saying, ``Our lawyers advised us against it,'' and
``our lawyers said it will make us responsible for your
debts.'' Wow, I thought, pretty rotten financial advice. Full
inheritance, without probate, is not such a bad deal.
On May 18, 2000, a ratty little man rang my doorbell and
thrust a lawsuit into my hands. It was a Petition for
Guardianship naming me as an ``alleged incapacitated person''
and listing my three children as the plaintiffs. Of course, I
was horrified.
I knew they had not read the statute, and they had not done
their homework. They must have had some pretty ruthless lawyers
urging them into this extreme, almost violent, action.
Later, the kids said things like: ``We did not want to have
to take care of you when you were old.'' One volunteered: ``I
asked the lawyers how we could get control of our mother, and
they said that that it wasn't possible except by one method--
the Guardianship Suit.''
I call this the ``Capone Trick''--they could not get Al
Capone on racketeering or murder or prohibition violations,
they could get him by income tax evasion.
What does this tell you about the guardianship laws? Diane
Armstrong's book, ``The Retirement Nightmare,'' has plenty of
horror stories about the ``backdoor'' approach.
A court appointment was made for the Case Investigator,
whom they call the ``G.A.L.'' or ``guardian ad litem.'' I did
not get to be the defendant. I called the ``A.I.P.'' alleged
incapacitated person.
I hired a topnotch private law firm, because I had just
learned that almost no one escapes a guardianship perhaps 6
percent, mostly those who have the time and money to resist.
Diane Armstrong and I went to college together. The day
that the petition was served me, my Alumni Bulletin from
Scripps College came, and Diane's book about contested
guardianship was reviewed. I called her immediately and she
worked with my attorneys throughout the almost one year that
this system held me up.
If you have not looked at those graphics over there,
really, really look now. This can happen to anyone in this
room, and that is what you lose. This system is so corrupt--and
I do not mean money-under-the-table corrupt the system has no
checks and balances; it has no oversight. It is so terribly
unorganized that it operates on its own, in a little void. In
Seattle it is a department of the Washington State Superior
Court, called ``Ex Parte and Probate,'' and it is a law unto
itself. We had no appeal system to get me out of it.
In my report, I have little checks, and there are dozens of
them here--how disorganized and therefore abusive and corrupt,
the system is, I have just gone through this. So take a minute
and count those checks.
I do not think you are a person if your legal identity is
taken away, which happens under this law. You do not exist
under the law without your rights. If you do not exist under
the law, you are a slave in ancient Rome or the Old South, or
you are somebody in a concentration camp. You do not exist.
Therefore, whether you are capacitated or incapacitated does
not matter, because you can be abused either way.
When I got the attorneys, I said ``The first thing is that
the G.A.L., guardian ad litem, cannot talk to me unless one of
you guys is there.'' I had the good sense to do that. The next
day, the G.A.L. comes to my door and tried to get in; he was
ignoring the injunction.
The G.A.L. had to read me the petition, the law, which had
just been served to me. That is required in Washington State.
We did it in my lawyers' offices. When he is through reading
it, Pam leans forward and says, ``Well, tell me, Mr. W., how
are you going to go about this investigation? The sole decision
on whether you are going to have guardianship or not is based
on a single report by this investigator--that is it. There is
one other thing, but it does not necessarily work.
OK. She leans forward and says, ``How are you going to go
about this investigation?''
The G.A.L. is an attorney, but he answers, ``Well, by the
nature of the report I have to write, I rely almost solely on
hearsay and gossip for my information.'' Everybody's necks at
that table went, ``What? Did he just say hearsay and gossip?
But he is an attorney, and this is supposed to be a legal
matter!''
One of leading judges--and they call them
``commissioners''--they make nice language one of the
commissioners sitting on a panel discussion recently said, ``We
are not so much a court as a social agency.'' Wait a minute.
You are not a social agency. You are a court.
According to the statute, you are supposed to be heard.
There is a hearing 30 days after you are served the petition.
Hopefully, a decision will be made. The G.A.L. canceled that
meeting; he was busy. He did not even begin his research on me
until August. His research eventually included talking to my
accountant, my doctor, the trustee of my revocable trust--all
those people. He did not even start until we were mostly
through the summer.
I had good attorneys. By the middle of July, I have spent
$20,000. In July, I had to sell the first of my major
investments. Twenty thousand dollars went to the attorneys, and
the rest I used to buy a rental house in a nice neighborhood, I
figured that financially, I could recover enough on the rental
to make up for the interest income I lost by selling the T-
bill.
My children urged the guardian ad litem and their
attorneys, to ask for a special hearing to stop me from buying
the house. My attorneys did a precedent search, which had to be
done by hand, because the stuff was so old that it was not on
the computer.
The Chairman. Robin, you are about 5 minutes over. If we
could ask you to shape your time a little.
Ms. Warjone. I am so sorry. OK, I will.
The Chairman. Thank you.
Ms. Warjone. They found a precedent in 1852 which ruled
that anyone who has not been convicted of a guardianship still
has all their civil rights.
The trial went on in that fashion. The court abused every
law, every custom. It is here if you want to read it; and I
recommend Diane's book. So thanks, everybody.
The Chairman. Well, Robin, we do appreciate you being here,
and I will have some questions, but I have to believe that you
viewed that as a living nightmare.
We thank you very much for that testimony.
[The prepared statement of Ms. Warjone follows:]
[GRAPHIC] [TIFF OMITTED] T6496.099
[GRAPHIC] [TIFF OMITTED] T6496.100
[GRAPHIC] [TIFF OMITTED] T6496.101
[GRAPHIC] [TIFF OMITTED] T6496.102
[GRAPHIC] [TIFF OMITTED] T6496.103
[GRAPHIC] [TIFF OMITTED] T6496.104
[GRAPHIC] [TIFF OMITTED] T6496.105
[GRAPHIC] [TIFF OMITTED] T6496.106
[GRAPHIC] [TIFF OMITTED] T6496.107
[GRAPHIC] [TIFF OMITTED] T6496.108
[GRAPHIC] [TIFF OMITTED] T6496.109
[GRAPHIC] [TIFF OMITTED] T6496.110
[GRAPHIC] [TIFF OMITTED] T6496.110
The Chairman. Now let me turn to our concluding witness,
Robert Aldridge of Boise, ID, an elder care attorney in Boise
who has been a strong advocate in Idaho for guardianship
reform.
Bob, we appreciate you being before the committee. Please
proceed.
STATEMENT OF ROBERT L. ALDRIDGE, ATTORNEY AT LAW, BOISE, ID
Mr. Aldridge. Thank you, Mr. Chairman. It is a great honor
to be here.
I believe that one of the defining, fundamental
characteristics of any society is how they treat their elderly
and their disabled. It is difficult to summarize 14 years and
hundreds of bills, so what I am going to go through is merely
some tips of what we have done. Each of them tends to come from
cases like the Orshansky case. Those cases tend to scar all of
the people involved, and each of them then becomes an
imperative to change.
The first is that we have greatly changed the definitional
concepts in the statutes. The existing Idaho probate code as it
was adopted in 1972, and the Uniform Probate Act as it exists
tend to put people under labels. One of those labels was
``elderly.'' The mere fact of being old was enough to have
guardianship.
So we removed those and went to a question of legal--not
medical--disability, and that incapacity was to be measured by
function limitations. The question was not what you fit into,
especially if it was chronic conditions, but what you could not
do and what you needed help with.
We also provided that the evidence and the inability had to
be recent and had to be evidenced by actual acts. I have often
expressed before the legislature the right of the elderly and
all of us to be eccentric and even occasionally stupid. Put
more elegantly, we have the right to age, to live our lives
with dignity and with individuality. We are not to be put into
cookie-cutters of what someone in disinterested status might
believe is the only way to do things.
We also greatly strengthened the due process changes and
the appointment procedures. First, the guardian ad litem. As
has been referred to, the guardian ad litem can be a strong
advocate for the person, or they can be merely an instrument
for bringing them under the system. So we greatly expanded the
requirements, what had to be investigated, representation
needed, and especially the ethical duties of the guardian ad
litem, those of loyalty.
We have a separate court visitor. That person is to be a
completely independent disinterested person. On what I would
have thought would have been inherent and built into their
structural methods, we finally ended up writing what I am
ashamed to admit is a 485-word statement of what is required to
be in their report--an exhaustive listing.
But as in many of our laws, we found that we had to create
primers. We had to lay out excruciating details of what had to
be done so that it had to be followed. We also strengthened the
right of the person to absolutely have independent counsel at
any point in time.
We also went through the priority appointments. As has been
noted in many of the cases here, there is often an outside
appointment initially. The question has been raised what
happens with the person's own planning, so we provided that if
the person himself cannot give a recommendation, that is the
recommendation that the court has before it; if the person
cannot give, either orally or in writing, a recommendation,
then we look to their lifetime recommendations made through
power of attorney, through durable powers of attorney for
health care, and so forth, and those are the next layer. Only
after we have gone through all of those and found nothing do we
go down the list of family and so forth. Family is always
looked at next; we do not go to outside persons unless there is
simply no one there.
An area of abuse that is often used is temporary and
special appointments. Very often, emergency is used as an
excuse to place a tremendous amount of restraint on a person
without any hearing and without any review. So we almost
eliminated that. In order to have a temporary or special
appointment, you have to have severely limited powers; it can
only be done in extreme emergency and for a limited period of
time. There is the required appointment of a guardian ad litem.
They have to have hearings within very short time periods, and
again, it is to be carried out only as long as necessary to get
into the question of whether guardianship is needed at all. In
the old days in Idaho, there used to be 6-month appointments
which were done without any notice even to the person involved,
and they could be renewed indefinitely.
We have also striven and will continue to strive to make
sure that guardianship is almost the most limited form
possible. It is not to be general unless it is absolutely
necessary, and it should be the exception, not the rule.
We have also worked on having coordination between States.
We often have cases where someone has contacts both in the
State of California, or Oregon, and Idaho. We have set up a
method where the judges can work directly with each other, not
through the formal court settings but one-to-one.
We have also worked with the question of training of judges
and tried to educate them as to what needs to be done.
We also need to preserve the estate plan of the person, so
it is literally forbidden for the guardian or conservator to
interfere with that estate plan; it must be preserved.
We have also gone into the post-appointment procedures to
make sure that after the appointment is done, if it is
necessary, that it is correctly carried out.
A lot of the problems are those that have been raised. We
found that in the State of Idaho, we could not even find out
how many existing or old cases there were. Courts simply would
not identify them. So we spent a year and a half reforming that
system with the Idaho Supreme Court and then identified cases.
We then found that of the approximately 400 open cases in Ada
County alone, 90 percent have no recording of any kind of
accounting or status reports.
We then formed an independent fiduciary review committee on
a voluntary basis--I and several other attorneys and a trust
officer--and in about 3 years of purely voluntary proceedings,
we recovered in Ada County alone well over $3.5 million of
misspent money. I would like to say that that had been outside
persons, stranger, but it was not--it was family.
We have also established an ongoing program to create a
list in association with the AARP, the Department of Finance,
and the Attorney General's Office, to have a pilot program to
monitor those on a statewide basis. Many smaller courts simply
do not have the time to do so.
We have established another program to do guardianship
monitoring and training, again with the assistance initially of
the AARP.
We also have to look at court enforcement. As has been
noted, courts have laws before them, and if they do not follow
them, they are not any good. So we have given two different
areas to the court. One is the ability to enforce through
fines, surcharges, and so forth; and second, we give training
to the courts. We try to get to the magistrates conferences and
so forth. We have also created guardianship and conservatorship
handbooks which are given to both courts and to all appointed
conservators and guardians to walk them through their duties.
There is obviously much more, but I think it would be
better to respond to questions.
Thank you.
[The prepared statement of Mr. Aldridge follows:]
[GRAPHIC] [TIFF OMITTED] T6496.112
[GRAPHIC] [TIFF OMITTED] T6496.113
[GRAPHIC] [TIFF OMITTED] T6496.114
[GRAPHIC] [TIFF OMITTED] T6496.115
The Chairman. Mr. Aldridge, thank you very much for that
testimony and example of what one State has done and I hope
others are doing to improve this situation.
Let me ask you all some questions. Mr. Johns, one case came
to my attention where an elderly man was forced to divorce his
wife pursuant to a guardianship order. I find this highly
disturbing. On what possible basis can that be allowed to
happen in this country?
Mr. Johns. Mr. Chairman, if the facts are carefully
studied, such a situation could present itself when, for
example, the person presenting as spouse is in a late marriage
with someone one-fourth the age of the protected person, who
may be described by some as a ``golddigger,'' who in fact takes
position in such a way that cuts the rest of the family members
off from any access to the elder person, begins diverting
assets of the estate in a way that truly brings to the
attention of the judge a reason for addressing issues that
would include divorce.
However, the focus of your concern and your question may
generate more from this scenario, where the person marries late
in life; it is a person within 10 or 15 years of his or her own
age; the person has some wealth of his or her own; they are
truly in love and are in companionship, and the children of one
or the other spouse are irate at the fact that mother or dad
would remarry, and that would in fact, maybe, move some of what
was to be their inheritance to this new love in life. Those
children intervene asserting that the marriage is a sham and
should be dealt with by divorce exacted potentially by the
probate judge if he or she has jurisdiction, or moved to a
family court forum in which the issue of divorce is raised, or
even some form of annulment.
The Chairman. Well, I thank you for outlining that, because
I find this in a Florida case--I think it was referencing an
article in The Orlando Sentinel of 1994 on the Norma and Buford
Bonds case in Florida--where I think the latter was true.
Let me ask another question of you; I will complete my
questioning of you before I turn to a colleague who has just
joined us for any comments that he would wish to make, and then
we will move on with further questioning.
Is it typical for guardianship orders to trump prior
existing legal arrangements made by an incapacitated
individual, and under what circumstances can that occur?
Mr. Johns. The answer is yes. Guardianship orders may in
fact trump the pre-planning if, on the facts presented before
the judge, there is some reason to believe that what had been
pre-planned has become something that will in fact do harm to
the person who is supposed to be protected.
However, the reality is that--much as happened with Mollie
Orshansky--many judges do not pay attention to what pre-
planning is there and do not examine whether there are benefits
to be gained by simply saying the efficiency of the court's
time is best-served by dismissing the case.
The Chairman. Thank you.
We have been joined by Senator Carper, and I appreciate him
as a valuable member of this committee who attends on a regular
basis. We are glad that you have taken time to come by this
morning and be with us. Do you wish to make any opening comment
before we proceed with additional questions?
Senator Carper. I do not. I am delighted to be here.
As you know, we serve on a number of committees, and I have
just jumped out of one committee with Chairman Greenspan, who
is talking to us about the economy and monetary policy, and I
am pleased to be able to join you for a bit and I thank you all
for coming and testifying before us.
I have a question or two that I would like to ask at the
right time.
Thank you.
The Chairman. Why don't you go ahead and ask questions now,
and then I will come back to mine?
Senator Carper. Thank you, Mr. Chairman.
Mr. Chairman, in reading through the materials that my
staff has provided for me for today's hearing and some
materials provided by the committee staff, there are several
referrals to a State which seems to be doing it right with
respect to guardianships and their approach on these issues.
The State that kept coming up in the materials I read was
Idaho. [Laughter.]
Proceed, and we will see if it is a coincidence or not.
Senator Carper. When I ran for the U.S. Senate in 2000, I
had been Governor of Delaware for 8 years, and I talked a lot
on the economy about Delaware as a model for the country and
the way we manage our economy, create jobs, overhaul our
schools and welfare. But we never thought of trumpeting the way
we had overhauled guardianships or addressed alternatives to
guardianships. I do notice that Idaho keeps coming up.
``Idaho's statutes and practices are models for
emulation.'' That is a quote right out of my materials.
I am not sure if any of you are from Idaho, but can
somebody just tell me what they figured out in Idaho that the
rest of us need to emulate?
The Chairman. Just before you came in, or as you were
coming in, Robert Aldridge, who is an attorney from Idaho and
very much a long-time reformer in this area, had just concluded
his comments, so I will turn to Mr. Aldridge to respond to
Senator Carper.
Mr. Aldridge. Senator, what we decided in Idaho was first
of all that society has given us as attorneys a lot of gifts, a
lot of prerogatives, and that we owed it to give back something
to the community. What we can do best, I think, is first, to
see problems and second, write bills to correct them.
So in the State of Idaho for now 14 years, we have entered
into a very active coalition-building method of going to the
Idaho legislature and changing rules, changing laws, when they
do not make any sense, when they work incorrectly. We have done
that in part looking internally to problems; we have also gone
to a lot of other States and attempted to glean from other
States what they have done right and then bring that in and
incorporate it.
There is no single set of model laws out there that can be
used. Even Idaho's laws are in a constant state of flux. I have
seven bills in front of the legislature right now, and we are
working on some huge bills on the Uniform Trust Act, on special
powers of attorney and so forth.
So it is an ongoing procedure and, to paraphrase Robert
Frost, we have many promises yet to keep and many miles to go
before we sleep.
Senator Carper. Another way of saying that is: The road to
improvement is always under construction, even in Idaho.
I have one more question if I could, Mr. Chairman. Looking
over my materials, one of the possible results of this hearing
would be to encourage the use of something called the
``representative payee system'' wherever possible as an
alternative to guardianship. I do not understand what a
``representative payee system'' is, and perhaps one of our
witnesses could explain that and tell me why that is a good
idea, or not.
The Chairman. I believe Penelope Hommel might be the person
who could respond to that. She certainly has had some
experience in observing it and tracking it.
Senator Carper. Ms. Hommel, would you be willing to tackle
that one?
Ms. Hommel. I can try. Basically, representative payeeship
is a system that applies to a number of government benefit
programs, for example, Social Security, Supplemental Security
Income. It provides that when an individual is unable to handle
the funds that come through that government benefit program,
another individual or representative payee can be appointed to
handle those funds. In cases where financial estate is small,
the income is limited pretty much to the government benefits
that we are talking about, it can be a very important
alternative to guardianship that does not deprive the person of
the basic right to control their other aspects of life and
their decisions.
Having said that, it is not one of the alternatives that
you plan in advance. It tends to be when you have not done the
advance planning and executed a durable power of attorney, then
the representative payee program can come into play.
Among the downfalls or potential downfalls of
representative payeeship are that it looks the procedural
safeguards of a court proceeding; there is not court oversight;
and there is clearly the potential for misuse of the funds by
the person appointed as representative payee, rather than
making sure that they get used for the benefit of the
individual. There have been a number of hearings, and
substantial work has been done by people in this room and
others to try and come up with ways to make sure that necessary
protections are in place. So it needs to be done very, very
carefully, but it is an alternative to guardianship that
maintains the individual's rights.
Senator Carper. Good. Thanks.
Does anyone else want to add to or take away from that
response?
Mr. Aldridge. If I could, Senator, one of the problems that
we have had in the State of Idaho is that the representative
payee can sometimes tend to be whomever walks in latest to the
local office, is 98.6, and can sign their name. So we have had
situations in which financial abuse has been coming from a
particular individual; we get a conservatorship, we get a new
representative payee, and then that same person walks back in
and becomes the new representative payee. That is a problem in
the system.
Senator Carper. Good. Thank you all again, and Mr.
Chairman, thanks for the opportunity to ask those questions.
The Chairman. Tom, thank you very much.
Dr. Armstrong, I understand that a member of your family
went through a legal battle involving the opposition of a
guardianship petition. Can you tell us about it and what you
learned from that experience?
Ms. Armstrong. In California, these are call
conservatorship hearings. The case began when four of seven
children ganged together, approached an attorney and spent 5
months working on their petitions against my mother, who at the
time was 72. The petitions claimed also that an emergency
existed in the case. Therefore, when she was served with her
petitions on a Friday evening, she had 4 working days to
organize a case to defend her freedoms.
In that period of 4 days, she arranged for the help of two
attorneys; she had a neuropsychiatric evaluation done at UCLA;
she had to get testimony from all sorts of individuals; she
enlisted the aid of her financial planner, and she appeared in
court on a Friday, told by everyone that the court would throw
the case out as frivolous and totally unnecessary the moment
she said, ``My four children are angry at me, and I am angry at
them.'' ``This is a family squabble.''
But the court did not let her speak. He assigned another
date, and we came back a week or two later, and the court again
would not let her speak. The court said, out of the blue, at
the end of the day: ``I think I will assign a conservator of
the estate; after all, it will not hurt, and it might help.''
We had time, though, because he did not have the name of a
conservator with him. So my mother had to hire a corporate
litigator who, just before Thanksgiving, sued to have an
evidentiary hearing held so she could be heard. We spent the
entire time before Christmas getting ready for that.
There was finally a hearing on issues of the temporary in
December, 2\1/2\ days of testimony after Christmas. At the end
of that proceeding, the judge announced that obviously, this
woman did not need a conservator, but we are going to file a
court date 6 months hence to see if she needs a permanent
conservator.
At this point, it felt like the Mad Hatter's tea party.
Here was a woman battling for her freedoms, for all of those
freedoms listed, and the judge was saying, ``Oh, she obviously
is fine, does not need a temporary, and there is no emergency,
but let us put her under this stress for 6 more months and see
what happens.''
The fees that were generated by this point in time were
outrageous. A court-appointed investigator in the role of a
guardian from the probate volunteer panel investigated my
mother prior to the hearing. They hated one another. When my
mother went to court, she fired that woman. She did not need
her--she had two attorneys. The woman turned to the judge and
said, ``I am not needed in this regard, but I can serve as
friend of the court and help you.'' The judge permitted her to
be on the payroll as amicus of the court, and that woman made
my life, my family's life, just turn upside-down and split down
the middle. It went on and on for 18 months.
The Chairman. So from that experience, what conclusions can
you draw that might have put in place from those conclusions a
law that would have protected your mother from this kind of
proceeding?
Ms. Armstrong. I think the fundamental change that needs to
be made is that these proceedings cannot be brought against any
adult whose decisionmaking powers are intact. They do not have
to be reasonable, they do not have to be fashionable, they do
not have to be like the judge's.
The Chairman. In other words, in Mr. Aldridge's words, they
can be ``eccentric'' if they wish.
Ms. Armstrong. Absolutely. Why can you not be eccentric at
40?
The Chairman. Some are. [Laughter.]
Ms. Armstrong. Sure. They can lose all their money at 40,
and they do not risk their freedoms. But if this happens when
you are 62 and older, you are at risk of losing every freedom
you have. I do not think it is correct to require that
decisions be ``reasonable'' or ``responsible.'' If they can
make the decisions they have always made, these proceedings
should be thrown out of court, and any proceeding that is
brought should either be at the wish of that elderly person as
a voluntary conservatorship or guardianship, or it should be an
incredibly limited one, as are the limited proceedings against
the developmentally disabled in the State of California--
terribly respectful of the individual's unique way of going
through the world.
The Chairman. In your writings, are there concerns of
financial abuses perpetrated by professional guardians, whether
it be excessive fees or direct mismanagement of funds?
Ms. Armstrong. It is rife in the system, absolutely.
The Chairman. You asked a question--Tom, Ms. Armstrong
asked a question; she has written on these issues and has spent
a good deal of time studying them--what would come of these
proceedings. This committee held hearings on this issue in the
1990's, primarily to lift awareness, and while some activity
has gone on and some effort is underway, and Ms. Hommel has
spoken to that work being done, one of the things that we found
in beginning to delve into this is the absence of information
and records and realities of the extent to which guardianships
are used, and we are beginning to pick up a little of that in
the testimony offered here when we hear some of the numbers
cited.
Ms. Armstrong, I cannot give you an answer. Obviously, the
testimony that you are giving and the record that we are
building here is going to be extremely valuable, and the
recommendations, for example, that Mr. Johns and Mr. Aldridge
have made as to what might be done. Clearly, there is growing
evidence that very large problems exist out there and that bad
things are happening to good people.
Also, as I said in my opening statement, we are on a very
large bubble, if you will, of aging people who are going to and
may need to seek these services in their lifetimes, in numbers
heretofore that we have certainly not experienced in this
country. That is part of what we are doing to build a record to
see where we might go with this, and I am going to do some more
probing, as I said with Mr. Aldridge's comments--while I want
to err on the right and the side of the State in many of these
instances, there is a Federal nexus--there is no question about
it--and in many instances, there are sizable amounts of, if you
will, while it is the individual's money, it is derived through
the Federal Treasury, if you will, and there is a connection
and a responsibility there.
This committee certainly continues to plan to pursue this,
and I think it is important that we do, to build a record, to
decide whether in fact there are some areas that we can move
into to deal in an appropriate fashion and to begin to not only
deal with this but certainly lower the level of abuse.
Ms. Hommel, do you think that prior planning alone makes an
elderly person guardianship-proof? I say that in relation to
Mollie Orshansky as a good example, from her niece and the
attorney representing her who were before us. Could you respond
to that, because that is certainly something that we are at
business preaching in society today--plans, trusteeships, all
those kinds of things that relate to an individual's assets.
Ms. Hommel. That is an excellent question. Clearly, as we
have heard, it does not make an individual guardianship-proof.
The Mollie Orshansky case is a prime example where a tremendous
amount of planning was done, and the court chose, for a variety
of reasons, to ignore that.
We are seeing--and I think Frank John's addressed this a
bit--some States beginning to write priority provisions into
their guardianship statutes. These provisions may specify that
if you have an advance directive for health care, the person
that you have appointed to make your health care decisions will
take precedence--Michigan is an example of a State that has
done that--and that make provisions, if you have done planning
for financial alternatives, that those will take precedence
over a guardianship.
I think other things that people can do include making sure
that when they do that advance planning, it is done in dialog
with the family, with other interested parties, so that there
is communication about what is going on, what is planned, and
so that everybody realizes that these mechanisms are in place.
Often, the reason that an advance directive for health care
does not get honored is because the doctor is not aware that it
even exists. There are other reasons too. Sometimes the
physicians and the medical personnel will not honor it. But
sometimes it is as basic as that they do not know about its
existence.
So advance planning clearly is not a complete protection.
But I think the more people can be educated about it's
importances, the more they understand and address its
limitations, and the more they recognize the need to make sure
that all the other interested parties are on board with the
advance planning that has been done, then the more likely it is
to succeed in avoiding guardianship.
The Chairman. If you had to guess, how many court-appointed
guardians are handling Social Security money without being
appointed as a representative payee? Do you have any feel for
that?
Ms. Hommel. I'm afraid. I have no idea of the numbers. I
would guess that the majority are handling Social Security
funds and many without being appointed representative payee,
but I really am not aware of data to support that.
The Chairman. OK. I see a lot of head-nodding out there
among the panel.
Mr. Aldridge, you mentioned $3 million recovered in Ada
County.
Mr. Aldridge. Yes, Senator. What we did first was find
out----
The Chairman. First of all, you and I know the size of Ada
County; compared to Los Angeles County, it is a very small
count, respectively, is it not?
Mr. Aldridge. That is true. We are very proud of the fact
that the State finally has over a million people, and Ada
County is approximately 200,000 to 290,000 today.
The Chairman. So that is a sizable amount of money in
actuality.
Mr. Aldridge. It is a huge amount of money, and I think,
Senator, that reflects on what has been mentioned before--the
literally trillions of dollars now in the hands of the elderly
and getting ready to move to the next generation. That is the
kind of money that we are seeing misappropriated. There are
also now huge amounts of money coming through such things as
life insurance and such that is now up for grabs, literally.
So I think that we are at the tip of a very large iceberg.
As I said, ``That was just a voluntary effort by approximately
four of us in our own time, and we recovered that amount of
dollars in that short a period of time.''
The Chairman. Well, you are certainly to be commended for
the work that you have done and what you are doing in Idaho as
it relates to guardianship reform. What is on the burner now
for advanced reform from the work that has already been done?
Mr. Aldridge. There is a series of things yet to be done.
First of all, we need to continue to make guardians and court
visitors more independent. We are looking at potential
licensing, bonding situations, approved lists, truly random
appointment. Too often, the person who is the petitioning
attorney in essence picks those people, and that is not
independence.
Second, we need to create more outside methods. We have
talked about trusts and lifetime planning, but those need to be
done correctly, and they need to be strong before courts can
rely on those. So we are looking at first of all much
strengthening of protection of the elderly in powers of
attorney, financial powers, and also getting good trust acts in
place that will again help protect, so the courts can say
instead of doing guardianships, let us use those existing ones.
We also need to clarify a lot of things on how care should
be provided. A fundamental problem in the Medicaid area, for
example, which I deal with--I think an answer that follows on a
question to Mr. Johns--is that the current systems says the
best way to do financial planning in Medicaid is to be
divorced; you can save much more assets. But we also need to
look at home care. We need to let the elderly stay at home. Too
many things in our society, from Medicaid to Medicare to tax
law to guardianship tend to push people into institutions. We
need to have some way to strengthen the ability to stay at home
and be independent.
The Chairman. Thank you for that.
With the experience you have had in Idaho, what might other
States gain from that in reforming their laws?
Mr. Aldridge. I think, Senator, two different things. One,
they can look at the process. We are able to, essentially with
no dollars, just by voluntary efforts, make major changes in
the statutes.
No. 2, through sharing of experience, sharing of
statistics, States can make better laws. We were able to go to
other States. In the case of California, there are pieces of
their law that are good; there are pieces of their law that are
terrible. By looking at that experience, we were able to judge
what we should take and what we should reject.
So I think that that is the major thing to learn, that we
need to pool our knowledge and pool our statistics.
The Chairman. I had asked Mr. Johns, and he made some
recommendations for change in Federal law or new Federal law.
Let me ask you the similar question. Do you see a Federal role
in this, Mr. Aldridge?
Mr. Aldridge. Yes, I think there is a Federal role in all
of this. No. 1, Idaho, as you probably know, is for the first
time in a long time running deficits, and because of that, we
have seen literally the gutting of many of the traditional
protections of the elderly through the Commission on Aging,
Adult Protection, and so forth.
We need the ability to fund innovative State programs for
protection. We need--even through existing programs, the Older
Americans Act, Title IIIB funds, and so forth--to be able to
get money down to the States to do the things that they cannot
necessarily afford.
We are often in a Catch-22 where the legislature says, ``We
will fund the program if you show that it is successful,'' but
we cannot show that it is successful, because we cannot start
it without funds. I think many of those, if they had seed money
from the Federal side, would eventually become State programs.
The Chairman. There are a good many more questions I could
ask all of you, but I am running out of time.
Robin, we thank you very much for your testimony. I think
everyone gathered from it that you are a very capable,
talented, alert woman, and that the attack or the approach to
the attack was amazing. We hear of horror stories like this,
and when I hear them, I view them in just that context.
Certainly, that should not go on through our legal system
today, but it does, tragically enough. You were able to fight
it with some success but also with substantial injury, and that
is tragic.
Again, I thank all of you. I view you as resources to this
committee and to our effort here, and we will continue, Ms.
Armstrong, to pursue this, to see if there are not some ways
that we can nexus the Federal law to cause this to be a finer-
tuned process that assures and guarantees the rights of our
citizens in a way that obviously is now not being protected
and/or guaranteed.
I thank you all very much for that, and the committee will
stand adjourned.
[Whereupon, at 11:52 a.m., the committee was adjourned.]
A P P E N D I X
----------
[GRAPHIC] [TIFF OMITTED] T6496.116
[GRAPHIC] [TIFF OMITTED] T6496.117
[GRAPHIC] [TIFF OMITTED] T6496.118
[GRAPHIC] [TIFF OMITTED] T6496.119
[GRAPHIC] [TIFF OMITTED] T6496.120
[GRAPHIC] [TIFF OMITTED] T6496.121
[GRAPHIC] [TIFF OMITTED] T6496.122
[GRAPHIC] [TIFF OMITTED] T6496.123
[GRAPHIC] [TIFF OMITTED] T6496.124
[GRAPHIC] [TIFF OMITTED] T6496.125
[GRAPHIC] [TIFF OMITTED] T6496.126
[GRAPHIC] [TIFF OMITTED] T6496.127
[GRAPHIC] [TIFF OMITTED] T6496.128