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Guardianship : Few Safeguards

September 27, 1987|FRED BAYLES and SCOTT McCARTNEY | Associated Press

The nation's guardianship system, a crucial last line of protection for the ailing elderly, is failing many of those it is designed to protect.

A yearlong investigation by the Associated Press of courts in all 50 states and the District of Columbia found a dangerously burdened and troubled system that regularly puts elderly lives in the hands of others with little or no evidence of necessity, then fails to guard against abuse, theft and neglect.

In thousands of courts around the nation every week, a few minutes of routine and the stroke of a judge's pen are all that it takes to strip an old man or woman of basic rights.

The 300,000 to 400,000 elderly people under guardianship can no longer receive money or pay their bills. They cannot marry or divorce. The court entrusts to someone else the power to choose where they will live, what medical treatment they will get, and, in rare cases, when they will die.

2,200 Court Files

The investigation examined more than 2,200 randomly selected guardianship court files to get a portrait of wards and of the system that oversees them.

After giving guardians such great power over elderly people, overworked and understaffed court systems frequently break down, abandoning those incapable of caring for themselves, the investigation found.

A legal tool meant to protect the elderly and their property, guardianship sometimes results instead in financial or physical mistreatment.

"Guardianship is a process that uproots people, literally 'unpersons' them, declares them legally dead," said Dr. Dennis Koson, a law and psychiatry expert in Florida. "Done badly, it does more hurting than protecting."

System's Dangers Confirmed

That danger was confirmed by the investigation, which involved staff reporters in every state. The AP found:

- Elderly in guardianship court are often afforded fewer rights than criminal defendants. In 44% of the cases, the proposed ward was not represented by an attorney. About 34% of the files contained no medical evidence. Forty-nine percent of the wards were not present at their hearings. Twenty-five percent of the files contained no indication that hearings had been held.

Some elderly people discover that they are wards of the court only after the fact.

A Bennington, Vt., woman learned she was under guardianship only when told by her nursing home she could no longer spend money without the permission of the guardian, her daughter. A Fort Lauderdale, Fla., woman found that she had a guardian only when she was turned away from the polling booth.

"Guardianship became a rubber-stamp procedure over the years," said Indianapolis Probate Judge Victor Pfau, a leader in a judicial reform movement.

- Although laws in 45 states require guardians to file regular accountings of the ward's money, the documents were missing or incomplete in 48% of the files examined. Thirteen percent, more than one in 10, of the files were empty but for the initial granting of guardianship powers.

Such files are critical to the court's knowledge that wards are being cared for and that their money is being spent properly. Without the files, the door is open to abuse.

A court in Missoula, Mont., for example, had no record of what happened to the $131,000 estate of a 92-year-old man found ill and alone in a cabin in 1985 after a couple described as "friends" became his guardians. And a Pittsburgh, Pa., court learned of a decadelong misappropriation of $25,000 in Social Security checks only when a state hospital complained of non-payment for a ward's care. The ward's guardian, an attorney, was disbarred in 1985.

- What reports are filed are rarely audited or even checked by probate courts, which handle guardianships in most jurisdictions. One of the last rungs on the courthouse ladder, often dealing more with affairs of the dead than of the living, probate courts are swamped. Many can't even guess how many guardianships they have on file.

"I don't know where the wards are, who's caring for them, what they're doing," said Probate Judge Anthony Sciarretta of Providence, R.I. "I have no support staff, I have no welfare workers, I have no aides, I have no assistants and I have no money."

In San Diego, judges routinely signed off on annual accountings filed by lawyer Robert Kronemyer for the estate of his ward, Joshua Baily. Not until after Baily's death did a friend become suspicious. Kronemyer was convicted in 1983 of theft and perjury for taking hundreds of thousands of dollars in cash and bonds.

Most Guardians Care

Most guardians are dedicated, caring people who see that their wards get proper food, clothing, shelter and medical attention. A good guardian can protect against greedy relatives and scheming con men.

But if the nation's elderly population jumps 22% by century's end, to nearly 35 million, as projected, the problems of guardianship are likely to grow.

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