Pennsylvania Bar Association: now writing laws to help enrich themselves!
This report has been sent to AAAPG by an anonymous resident of Pennsylvania, disturbed by the erosion of seniors’ constitutional rights. We think it deserves everyone’s attention. ~Admin
Pennsylvania Courts Recommend Curbs on Seniors’ Constitutional Rights
On January 29, 2019, the Administrative Office of Pennsylvania Courts issued a news release entitled “Pa Supreme Court Advisory Council Releases Progress Report on Elder Abuse and Guardianship Issues.” The news release included a link to the executive summary of the progress report. This writer was immediately struck by the following recommendation:
RECOMMENDATION 47: The Task Force recommends that the Orphans’ Court Procedural Rules be amended to limit a potential guardian’s appointment to a guardianship of the person in appropriate circumstances to avoid potential intra-familial disagreements as well as any financial responsibility of a potential guardian. See Guardians and Counsel Committee Report, §VI.C.1.h. (Page 47).
What is going on here? And what is the Guardians and Counsel Committee Report? I couldn’t find the report on the Pennsylvania Judicial System web site, so I did a web search for Pennsylvania Supreme Court Elder Law Task Force. Ha! Found it.
Without the help of my old friend Google, I would have never known that you needed to go to the Unified Judicial System of Pennsylvania web site, click on “Courts,” then on “Supreme Court,” then on “Committees, Boards & Advisory Groups,” and finally on “Elder Law Task Force.” How’s that for transparency in government?
After I reached the Task Force web page, I quickly realized that the devil is in the details, and some of the the details could have been written by Satan himself. Or a guardianship lawyer. The list of Task Force members included 36 attorneys/judges, one CEO of a professional guardianship company, and 10 miscellaneous persons. In other words, most of the committee members represented the legal and guardianship communities—the groups that profit from guardianship. Only a few representatives of non-governmental entities ostensibly represented senior citizens themselves.
I don’t have enough information to determine whether or not the these non-attorney, non-guardian committee members have any financial stake in guardianship, so I’m presenting the following as background: One person, Diane Menio, represented the Center for Advocacy for the Rights & Interests of the Elderly (CARIE). That organization’s website says that it provides information on community resources as well as assistance to elderly crime victims. The CARIE web site does not list any affiliations to guardianship agencies. However, an article by Halle Stockton on the WITF web site says that in 2011, the Pennsylvania Department of Aging gave CARIE $176,000 to study guardianship.(1) Another person, Ronald Barth, represented LeadingAgePA, another non-profit organization that provides referrals for senior services. I was unable to locate any connections to guardianship agencies on the Leading Age PA web site, but the site did include sponsor ads from multiple law firms and financial planners. Crystal Lowe represented the Pennsylvania Association of Area Agencies on Aging (P4A), Dauphin County. Harrisburg, the capital of Pennsylvania, is located in Dauphin County. According to the P4A web site, the organization represents county and nonprofit Area Agencies on Aging. The remainder of the Task Force members were government employees.
The Committee report is deliberately vague but implies that if your attorney thinks that you are incapacitated, then he/she need not advocate against guardianship. The problem with this argument is that guardianship, once instituted, is most often a plenary guardianship that gives the guardian full control over a senior’s life. Advocating against guardianship does not mean that a senior will not receive care. A zealous advocate is required to ensure that the least restrictive alternatives are always considered first, making guardianship the avenue of last resort.
Back to Recommendation 47. Here’s what the Guardians and Counsel Committee Report §VI.C.1.h. says:
“Limiting appointment to a guardianship of the person (2) for some to avoid potential intra-familial disagreements as well as any financial responsibility of a potential guardian.”
In other words, in the case of a family disagreement, a judge should appoint a fiduciary as guardian of the estate instead of selecting the family member most qualified to manage the elderly individual’s money. Of course, the lawyer or financial manager is entitled to charge hundreds of dollars an hour for money management that a family member might be completely capable of doing for free.
Let’s look at a real life example:
On February 21, 2016, syndicated columnist Diane Dimond reported on Betty Winstanley, an elderly widow originally worth $1.9 million. On July 17, 2014, Winstanley was stripped of her constitutional rights through a guardianship instituted by Common Pleas Judge Jay J. Hoberg of Lancaster County, PA. Winstanley’s take on her situation: “I feel like I am in prison. My life is a living hell.” Winstanley was kept in a small room at the Masonic Village retirement facility in Elizabethtown, PA. The facility transferred her from an apartment at that facility after she sustained a fall in that apartment. I suspect that the facility was concerned about the liability risk associated with Ms. Winstanley remaining in her apartment. Winstanley did what any rational person would do when confined to a cell—she looked for a way out. (Hey, Ruth Bader Ginsburg fell in her Supreme Court office, and she’s not locked up in a nursing home.) She transferred her power of attorney to two of her children living in Maryland and asked them to find an assisted living facility for her near them. According to Dimond, “Within three weeks, the eldest Winstanley son, Richard, was in court claiming his mother needed a guardian to make decisions for her. Betty believes Richard was angry because she recently transferred her power of attorney from him to her other two children.” Dimond says that “two independent neuropsychologists who tested Betty declared she was of sound mind,” but based on “testimony from one doctor and one nurse from Masonic Village,” Judge Hoberg “ruled that Betty was ‘a totally incapacitated person.’”(3) Now neuropsychological exams are extremely detailed and cover a lot more material than regular medical exams. I’m footnoting a link to an article from experts at the Departments of Neurosciences and Psychiatry at the University of California, San Diego, for those of you interested in the geeky details.(4) But the bottom line is that if two neuropsychologists agree that a person isn’t demented, then she’s not demented.
Dimond did a follow up story on May 8, 2016, in which she reported that Winstanley’s guardian charged $1560 to make two phone calls to Winstanley’s son. Dimond also describes other exorbitant charges made by the guardian. On May 8, 2016, Dimond reported that Winstanley’s guardian was seeking to sell Winstanley’s home and liquidate two investment accounts so that she could pay $50,599.18 in guardianship fees and $34,217.22 owed to Masonic Village.(5) On April 9, 2017, The Full Measure web site reported that Winstanley’s net worth was less than $40,000 in cash.(6)
A reasonable person would say, “Betty Winstanley wants to go to live with her children in Maryland. Let her keep her power of attorney with the children in Maryland. Let her do what she wants—she’s earned the right to spend her own money.” But Judge Hoberg isn’t a reasonable person. Oh, and did I mention? Judge Hoberg was a member of the Pennsylvania Elder Law Task Force. He and other like-minded judges have managed to spread their judicial philosophy outside of Lancaster County. Now all of the senior citizens of Pennsylvania can be locked up and bankrupt—just like Betty Winstanley.
And how is Judge Hoberg’s philosophy being spread? The Committee Progress Report says:
The OCPRC [Orphans’ Court Procedural Rules Committee] determined when an outcome is based upon “appropriate circumstances” that are incapable of being defined by rule, then the matter is best left to the discretion of the judge, who will select the best suited guardian for the IP [incapacitated person] and, in doing so, will consider the potential for conflict.(1b) Related thereto, “professional guardian” was added to the list of persons eligible to serve as a guardian. (7)
Best practices regarding the appointment of guardians are included in the Guardianship Bench Book.
Yes, Pennsylvania’s judges are now told that it’s a “best practice” to bring in a “professional guardian” if there is any family conflict. There’s no mention of respecting the senior’s wishes as expressed in existing pre-need declarations and powers of attorney. The Guardians and Counsel Committee included Drew Grivna, President/CEO, Pennsylvania Guardianship Services, LLC, Beaver County. Why was he assigned to the Committee? What experience does the CEO of a professional guardianship company have with ensuring due process for individuals accused of incapacity?
The Pennsylvania Judicial System Web site provides copies of the Bench Books for Public Health Law, Witness and Juror Intimidation, Working with Interpreters, Sexual Violence, and Dependency. The web site doesn’t provide access to the Guardianship Bench Book. Why not? The Progress Report says that “the implementation of this recommendation has been accomplished.” Does the Pennsylvania judiciary have something to hide?
But wait, it gets worse. . .
The Guardians and Counsel Committee Report contains these paragraphs:
§VIII.A. Issue Statement
The Committee was asked to address the role of counsel in guardianship matters. The role of counsel, both during hearings on capacity and after a guardian is appointed, is confusing. Should counsel for a respondent be a zealous advocate for the respondent’s stated position, or should counsel exercise his or her own judgment in pursuit of the respondent’s best interests? Does petitioner’s counsel have a heightened responsibility because the respondent allegedly lacks capacity? Given the potential risk to vulnerable persons, is training and guidance on the role of counsel necessary?
§VIIII.B.1.b. Representation of respondent during proceedings to adjudicate incapacity The attorney must balance both best interests and zealous advocacy.
Ouch. The Committee report is deliberately vague but implies that if your attorney thinks that you are incapacitated, then he/she need not advocate against guardianship. The problem with this argument is that guardianship, once instituted, is most often a plenary guardianship that gives the guardian full control over a senior’s life. Advocating against guardianship does not mean that a senior will not receive care. A zealous advocate is required to ensure that the least restrictive alternatives are always considered first, making guardianship the avenue of last resort.
A 2009 study done by four graduate students at the Goldman School of Public Policy, University of California, Berkeley, illustrates what happens when attorneys fail to provide their clients with zealous advocacy:
Our data collection suggests that attorneys are not fulfilling their roles in probate proceedings. First, we found the likelihood that a permanent conservatorship was granted increased when the proposed conservatee had an attorney. Without an attorney the likelihood was 73 percent; with an attorney it was 90 percent. In theory, the attorney should be fighting for a less-restrictive alternative to conservatorship whenever possible. Therefore, having an attorney should decrease, not increase, the likelihood of a conservatorship being granted. (8) (Note: California uses the term “conservatorship” to mean guardianship.)
The Berkeley report goes on to say:
Attorneys do not have strong procedural incentives to oppose the granting of conservatorships, especially if the court investigator’s report concludes that the conservatorship is warranted. Attorneys have only short-term financial incentives to extend the procedures and request a trial, which would lead to increased fees. On the other hand, they face few long-term incentives to push for a trial and to expend the resources of the courts, since courts may be more willing to appoint attorneys whom they see as collaborators, or “team players.” Courts may be less likely to appoint an attorney who fights too much. This model is in line with our statistics, which show that proposed conservatees with attorneys are more likely to be conserved.(9)
If Pennsylvania law does not require zealous advocacy, then Pennsylvania seniors will be subject to unnecessary, costly, and psychologically damaging guardianships—just like Betty Winstanley’s.
The Guardians and Counsel Committee Report does not address why zealous advocacy is not in the ward’s best interest. Judges are paid to make decisions based upon the strength of evidence presented. If a zealous advocate does not present strong evidence in favor of his/her client’s case, then the judge should be able to recognize that fact—unless the judge is too lazy to actually read the evidence. The Committee Report effectively asks counsel to act as judge before a hearing commences. Finally, other states explicitly allow attorneys to represent the wishes of alleged incapacitated persons. After the debacle described in the New Yorker article entitled, “How the Elderly Lose their Rights,”(10) Nevada instituted comprehensive guardianship reform. Nevada statute NRS 159.328 §1. and 1.a states:
1. The Legislature hereby declares that, except as otherwise specifically provided by law, each proposed protected person has the right to have an attorney before a guardianship is imposed to ask the court for relief, and each protected person has the right to:
(a) Have an attorney at any time during a guardianship to ask the court for relief. (11)
The Nevada law does not place limitations on the proposed protected person’s ability to ask for relief. And the Nevada law, while not perfect, has improved the situation for seniors in that state. On November 28, 2018, Barbara Buckley of the Legal Aid Center of Southern Nevada testified before the US Senate Special Committee on Aging. The hearing was entitled, “Abuse of Power: Exploitation of Older Adults by Guardians and Others They Trust.” Ms. Buckley told the Senate Committee that the Nevada “Commission recommended and the Legislature agreed that counsel would follow a client directed model of representation rather than a guardian ad litem model. The client-directed model requires the attorney to follow their client’s direction and work to achieve the client’s stated goals. If the client is unable to form a traditional attorney-client relationship, the attorney represents the client’s legal and constitutional interests.” Ms. Buckley goes on to say that “In our first full year of operation since the right to counsel law, our office accepted 907 cases. . . . 40% were due to the guardianship case being denied/avoided meaning the initial petition filed by the proposed guardian went nowhere. . .19% of the cases we closed were due to our lawyers advocating for the guardianship to be terminated because a guardian was no longer needed.”(12) The guardian ad litem model proposed by the Pennsylvania committee does not protect the rights of seniors. Pennsylvania citizens deserve the same protections afforded the citizens of Nevada.
More troublesome stuff from the PA Committee recommendations:
Recommendation 14: The Task Force recommends that guardianship files be sealed to protect personal information included in the revised forms. Interested parties who are named in the case should have the ability to access the file by presenting a copy of the Certificate of Filing. In order to assist investigative agencies in their task of researching allegations of abuse, it is recommended that the proposed request form be used.
Why do case files need to be sealed? Hasn’t the committee heard of redaction? Are only investigative agencies allowed to see the files? What about news media? What about guardianship reform advocates? A March 18, 2017 article in the Albuquerque Journal reports that “Public access to guardianship documents was among the questions posed of court officials around the country in a 2014 survey by the Administrative Conference of the United States. Of the 859 state court officials who responded, more than 60 percent reported ‘all or most guardianship files are open to the public,’ except for confidential or sensitive information.”(13) The Clark County, Nevada criminal convictions for substantial guardianship fraud and abuse were largely the result of diligent investigation and review of court records by media outlets. PA Advisory Council, who are you protecting? Senior citizens, or guardians?
The Advisory Council report effectively admits that guardianship is more about generating profits for guardians and their lawyers, and less about protecting the elderly. Here’s Recommendation 41: “The Task Force recommends that, through amendment to the Orphans’ Court Procedural Rules, courts may favor the appointment of a family member to serve as a guardian of the estate when the estate of the incapacitated person consists of minimal assets or where the proposed guardian of the estate has the skills and experience necessary to manage the estate and is able to obtain a bond or provide other assurance of financial responsibility.” In other words, if you’re broke, professional guardians aren’t interested in you—lucky you! Recommendation 42 goes on to say: The Task Force recommends that, through amendment to the Orphans’ Court Procedural Rules, a list of individuals and agencies qualified to act as guardian of the person or estate to serve if family and friends are not viable options be mandated. The final recommendation doesn’t sound too bad; it’s the interpretation in the Guardians and Counsel report that is more sinister. Take a look:
i. The Committee recommends that when a guardian of the estate is required for an individual, the courts should favor the appointment of a family member when the estate consists of minimal assets, or when the proposed guardian has the skills and experience necessary to manage the estate and is able to obtain a bond or provide other assurance of financial responsibility.
ii. In all other instances, the Committee recommends that a qualified attorney, accountant, financial advisor, institutional trustee, individual, or agency be proposed as the guardian of the estate. Each county should have in place a list of individuals and agencies qualified to act as guardians of the estate, and their contact information should be made available. This list should be created, maintained, and expanded as described in (I)(C)(2) and may include local attorneys, individuals, private agencies (both for-profit and non-profit), and public agencies.
What does “skills and experience” mean? Let’s imagine that Fred is a high school graduate who completed an apprenticeship in heating and air conditioning installation and repair. Fred doesn’t have a college degree, but he owns a business worth two million dollars. Fred helps his mother Emma manage her rental properties—he even does some of the maintenance himself. Now Emma’s properties are valued at a half a million dollars. Fred knows how to collect rent and has been helping Emma pay the bills. If Emma is declared incapacitated, can Fred be guardian of her estate? Fred never went to college, but his income is much more than that of a recent law school graduate. Will Fred become Emma’s guardian, or will the judge rule that a CPA or attorney gets the job?
Or imagine Sue. She’s a high school math teacher who loves reading about investments. She has counseled some of her co-workers and has prevented them from doing the stupid things that many financial advisers recommend, like buying mutual funds with high management fees and purchasing whole life insurance. Sue’s father Rufus has a one million dollar stock portfolio and has been declared incapacitated. Will Sue be forced to cede guardianship of Rufus’s estate to a professional financial planner?
In a 2011 New York Times op-ed, investment guru and Yale endowment fund manager David Swensen wrote: “churning of investor portfolios hurts investor returns. First, brokers and advisers use the pointless buying and selling to increase and to justify their all-too-rich compensation.”(14) If a Yale economics professor doesn’t trust most financial advisers, why should Sue be forced to trust a random one to manage Rufus’ money? What kind of financial adviser puts his or her name on a list at Common Pleas Court? One who can’t otherwise get clients—good advisers have solid reputations and lots of financially literate clients. Do you really want to hire a financial adviser who ended up on a county court list just because he or she contributed to some politician’s campaign? Even financial advisers who bill themselves as fiduciaries can fail to act in an investor’s best interest. If fiduciaries are unable to live up to their duties, then they need to be fired. The recommendations of the Guardians and Counsel Committee place seniors at risk of being exploited by third rate financial advisers who can’t be fired.
The Pennsylvania State Legislature has repeatedly considered guardianship reform in the past several years. For various reasons, major reforms have stalled. Please read the Supreme Court Advisory Committee documents yourself. If you feel safe doing so, please phone your state legislators with your concerns—and send them a copy of this article. Please share this report with reporters at your local TV/radio stations and newspapers. If we don’t stop the Pennsylvania guardianship industry now, we could all be its next victims.
Footnotes provided for articles that mention a specific author. General references to web sites are not footnoted—use your favorite web search provider to locate the site. Instructions on how to locate the PA Supreme Court Advisory Committee are included in the article.
(1) Halle Stockton. “As PA ages, the state examines guardianships and abuse.” WITF website. Aug 4, 2013.
(2) Pennsylvania is unusual in that its law allows the routine appointment of two guardians for one individual. One guardian, the guardian of the person, controls most of the senior’s existence, including whom he can interact with, what doctors she can see, what he is allowed to eat, whether she is allowed to attend religious services, along with many other aspects of the senior’s life—if you can call it life. (“Person” is used loosely in the phrase “guardian of the person.” Black’s Law Dictionary defines “person” as “considered as capable of having rights and of being charged with duties.” Corporations are persons. Humans under plenary guardianship have been stripped of their constitutional rights, so legally they aren’t persons. The ward does have the duty to pay the guardian and the guardian’s attorney out of his/her life savings, so guardianized seniors might be considered partial persons. Or they might be considered things—assets in a portfolio that generates dividends.) The guardian of the estate controls the senior’s money.
(3) Diane Dimond. “Elder guardianships: A shameful ‘racket.’” Feb 21, 2016. Available on several news web sites through syndication. This site works well:
(4) David P. Salmon and Mark W. Bondi. “Neuropsychological Assessment of Dementia.” Annual Review of Psychology. 2009, 60:257-82.
(5) Diane Dimond. “Plundering Grandma’s Estate Via Court Ordered Guardianships.” May 8, 2016.
(7) Talk about gobbledegook! The person who wrote this needs to read Scalia and Garner’s “Making Your Case: The Art of Persuading Judges.” Especially the part about avoiding a “wordy and confusing brief.” Couldn’t the writer have said: “The OPRC determined that not all circumstances are capable of being defined by rule, and left discretion to the judge in cases which involve the potential for conflict. Therefore, ‘professional guardian’ was added to the list of persons eligible to serve as a guardian.” I think that the writer was trying to shoehorn the phrase “will consider the potential for conflict” into the Bench Book. If a judge is directed to give a high priority to consideration of the potential for conflict, then a guardianship will occur—a win for the bank accounts of the guardian and the guardianship lawyer!
(10) Rachel Aviv. “How the Elderly Lose Their Rights.” The New Yorker. Oct 2, 2017.
(13) Colleen Heild. “New Mexico Lags in Guardianship Reform.” Albuquerque Journal. Mar 18, 2017.
(14) David F. Swensen. “The Mutual Fund Merry-Go-Round.” The New York Times. Aug 13, 2011.