May 2007

Bar News welcomes letters from readers. We do not run letters that have been printed in, or are pending before, other legal publications whose readership overlaps ours. Letters should be no more than 250 words in length, and e-mailed to letterstotheeditor@wsba.org or mailed to WSBA, Attn: Letters to the Editor, 1325 Fourth Ave., Ste. 600, Seattle, WA 98101-2539. We reserve the right to edit letters. Bar News does not print anonymous letters, or more than one submission per month from the same contributor.

To guardian or not to guardian

EDITOR’S NOTE: Following are all the letters received as of April 13 commenting on Margaret Dore’s article “The Time Is Now: Guardians Should Be Licensed Under the Executive Branch, Not the Courts,” which appeared in the March 2007 Bar News. Letters over 250 words have been edited for length.

I am a clinical psychologist and I have evaluated hundreds of involuntary proceedings brought against the elderly (62 and above). Too often the cases are nightmares, and this court-sanctioned abuse continues in every state in America, including Washington State.

Last September, California’s Governor Arnold Schwarzenegger signed the Omnibus Conservatorship and Guardianship Reform Act of 2006 for the purpose of strengthening oversight of professional conservators (called professional guardians in Washington). The most hopeful aspect of this Act is the establishment of a new Professional Fiduciaries Bureau under the executive branch (SB 1550, to take effect July 1, 2008). This step will, hopefully, begin to eliminate numerous problems which currently exist.

Unfortunately, the Act also provides for “increased supervision” by the very judges who appoint conservators. That the day-to-day supervision of professional conservators/guardians has been left to the courts is a disappointment to many experts in the field. Probate judges and their staff members are typically not accountants. They are thus ill-trained and ill-equipped to review complex annual reports. Would we expect a judge who sentences a criminal to prison to also oversee the finances of and care being given that person during his/her years in prison? Hardly. Do our elderly not deserve the layering of protections that shield convicted criminals from harm?

I believe Ms. Dore’s suggestion that guardians in Washington be licensed and regulated under the executive branch rather than the courts is an idea with great merit and worthy of serious evaluation.

Diane G. Armstrong, Santa Barbara, California

I must respectfully disagree with Ms. Dore that The Time Is Now, March 2007. I respect her concern, but question the economics. It is probably true that no matter what we do we cannot ensure that one person will not take advantage of another. No system is perfect and the matters addressed in Ms. Dore’s article are unfortunate and distressing. However, creating another taxpayer supported bureaucracy ( an atomic bomb) to address what I think is a minimal, although condemnable, problem ( an African bee) is not economically justifiable.

Of all the formal guardianships in Washington, much less the alternatives, what percentage are problematic? One in one hundred? One in a thousand? What is the data that supports the creation of such an oversight department which must be legislated, regulated, staffed, and paid. At what cost? And at whose cost?

Is it necessary to create a system that costs a few million to administer to, hopefully, prevent comparative minimal losses. I need more data to support Ms. Dore’s position. Would her proposal only apply to professional guardians? How much would it cost? How would it be financed? Do we surcharge all filing fees? From my experience, quite frankly, although I agree wrongdoers should be dealt with appropriately, we should not assume all guardians are potential wrongdoers.

I applaud Ms. Dore for her dedication to the issues she presents. I’m not sure her solution is truly necessary or economically justifiable.

Craig M. Liebler, Kennewick

I am a self-employed business person whose family came into contact with one of Washington’s Certified Professional Guardians. Please accept this letter from the perspective of the consumer.

The guardianship company in question was appointed personal representative of my uncle’s estate. There were repeated problems for which we called to complain. The company’s response was to blame us. Perhaps most notably, I never saw any reasonable list of values and assets, as might be made by my business clients.

Even the “Final Report” listed assets at $1.00 holding values, as opposed to their actual values. I was also never sure as to the total fees charged. I tried to raise these issues with the court, but was shut down. The guardian’s attorney, by contrast, was allowed to speak as she wished. It was a horrible, dehumanizing experience. I still don’t know how much the estate was actually worth or whether my mother, who was the actual heir, received what she was due.

I hope that the situation can be improved so as to prevent other families from having the same or similar experience. Perhaps Ms. Dore’s suggestions are a start.

Doug Holt, Beaverton, Oregon

One need look no further than the consequences of courtroom “monitoring” to see that critical changes are needed. The courts don’t monitor. Probate courts have deferred to their colleagues (court-appointed guardians and their attorneys) and applied the rubberstamp to their requests. This blanket approval has created a subculture of predatory guardians who are exploiting the very people they are required to protect. Guardianships are shaping up to be the organized crime of the 21st century, increasingly referred to as the “Barfia,” by those in the know. A national site, www.stopguardianabuse.org, is replete with horrific tales of guardian abuse.

This has resulted in a profound lack of respect for the “judicial system.” The “rule of law” has morphed into “government by judicial whim or bias.” The author claims that the courts are doing “the best they can” with the huge numbers of cases dumped on them daily. I disagree. You’ll never find surgeons rushing through 20 operations a day. To believe that the rubberstamp is the best our courts can do is to fail to value justice. Monitoring needs to be in the hands of those with the time, the skills, and the desire to do it appropriately. Only then can the guardianship program be what it was intended to be — a protection for our loved ones who are no longer able to protect themselves.

Sharon Denney, Vice President National Association to Stop Guardian Abuse, Seattle

I’d like to comment on the article by Margaret Dore with a clarification of charges stated in the Seattle Times, December 3 article “Your Courts, Their Secrets.” The hearing which determined who was to be my mother’s (Evy Hohner) guardian cost her over $10,000. According to the first annual accounting my mother’s court appointed guardian charged her $16,000 in attorneys fees which to my understanding is a result of the time he spent answering my various complaints, one of which was the inadequate care she was receiving. A subsequent Guardian ad Litem report substantiated my claim. Along with the charge of attorney fees, my mother’s former guardian alleged that she spent $18,058.18 in “Personal Allowance.” In the final accounting he alleged she spent $8,610 under the heading of “Personal Allowance” which is exactly the amount my mother received from Social Security.

The court apparently did not have the time for a close perusal of the accountings and consequently the former guardian was not cited for allowing my mother to allegedly spend $26,668.18 on nonessentials. When he became my mothers guardian the amount of spending per year on nonessentials was to have been $1,500.

Is looking for the “outrageous” a purely subjective assessment? Clearly reform is necessary by allowing the over burdened courts more time to peruse accountings and to give guardians more incentive to check the spending of their clients.

Dean Libey

Thank you for the article on the regulation of guardians. I believe that Margaret Dore makes an excellent point that professional guardians should be subject to oversight or an audit requirement to insure that the incapacitated person’s assets are appropriately invested. Regulation by the Department of Financial Institutions (DFI) would be efficient and reasonable. The regulators at DFI are conversant with supervising and disciplining entities that manage money for others. In addition, DFI is self-supporting in that its operating revenues are paid by the organizations and individuals it regulates, rather than the State’s general tax funds.

From my experience practicing in King County, the Judges and Court Commissioners simply do not have the time to carefully examine the financial details of a particular ward’s investments. In addition, very few guardianship estates are large enough to justify an annual independent audit. Ms. Dore’s suggestion would allow the benefits of audits to be received by a ward whose assets were managed by professional guardians, while having that cost spread out among all such guardianships.

Again, thank you for bringing this important issue to the attention of the Courts and attorneys of this State.

James W. Minorchio, Seattle

I was pleased to see Margaret Dore’s article discussing an issue, which is often ignored: the abuse of wards by their court-appointed guardians (known as conservators in many states). I first became aware of this issue in connection with my own family.

In 2001, I set up my own website as a clearinghouse for guardianship information. Since then I have been contacted by individuals describing abuse against themselves and/or their families. Their oft repeated complaints include: churning; over-billing; over-drugging; and the guardian’s demonizing of family members, so that the court will not believe their complaints.

Guardianship was promulgated to GUARD against the person becoming a danger to themselves, and to CONSERVE their assets so that the person would not become a ward of the state. But the way guardianship often works today, is an irony: Instead of preventing financial depletion, the ward’s assets are methodically depleted by the guardianship. Often, the wards then become nursing home patients at public expense. The purpose of guardianship is turned on its head. A solution must be found to bring guardianship back to its original meaning to protect — not abuse — the wards and their families. I believe that monitoring should be done by an outside agency.

Lori Duboys, www.victimsofguardians.net

Margaret Dore’s article urging a regulatory paradigm shift for “professional” guardians is endorsed by my family and me. Our keen appreciation for Ms. Dore’s call for change began when my mother-in-law was served with a petition for guardianship in 2000.

Our experiences with the guardianship industry are in marked contrast with other industries, including the real estate industry with which I am most familiar. The Department of Licensing (DOL) regulates real estate brokers and conducts periodic unannounced audits. Anyone with a complaint against a licensee can file a complaint with DOL, an arm’s length regulator, without costs or legal counsel. Consequences can include license suspension, revocation and/or criminal charges. This is in contrast to guardian oversight in which the complainant must go to court against the guardian. We have observed that many abuses are not pursued because family members do not have the resources for this undertaking.

The state’s current guardianship structure/practices assure success for the guardians and their attorneys, while abuses suffered by wards and their families (the customers/clients) at hands of “Certified Professional Guardians” (CPG) continue. Industry education for the disarming “CPG” moniker requires only a two-day class. Beauticians, insurance agents, real estate sales people, etc., have exceedingly more difficult licensing requirements yet never achieve the Certified Professional designation.

Thank you Ms. Dore, may your peers support your efforts to improve a broken system typically outside the public’s awareness until it’s too late.
 
Larry Ingraham, Lynnwood

Thank you for publishing Margaret Dore’s article about problems with oversight of guardians. It was a thought provoking article, on a subject which deserves more attention.
 
Rosemarie Warren LeMoine, Bellevue

A court-appointed guardian often has complete control over a person’s finances, medical care, housing, and social activities. One would expect that information regarding the qualifications and complaints against guardians would be readily available. Surprisingly, the experience, credentials, and complaints are often veiled in secrecy. A guardian may have provided poor or even dishonest service to many families but the courts and the new clients have no way of obtaining this information. Short of spending countless hours digging through case files at the court house, families of vulnerable adults have no method to learn about a guardian’s past performance or undisclosed relationships with other industry professionals. My review of court files has shown numerous allegations of misconduct against certain guardians and industry professionals. Even so, the courts have failed to take action against these guardians and continue to appoint them. This state of affairs cries for a regulatory solution. The state government must get involved and force guardians to make all aspects of their dealings with clients known to the court and the clients. All complaints against guardians should be public information.

Margaret Dore’s article proposing guardian licensing and regulating (March 2007) provides potential solutions. A regulatory agency could have the resources and expertise to watch out for the best interests of our state’s most vulnerable. Guardianships are meant to protect our state’s at risk population — let’s work together to make sure that happens.

Tami M. Thompson, Lynnwood

Ms. Dore supports her position for professional guardian licensure by citing articles “in the popular press” that allegedly reflect the misdeeds of professional guardians. While these articles are interesting and raise the readers’ ire, they should not be assumed to reflect the practices of the majority of the approximately 250 certified professional guardians available to assist vulnerable adults in the state of Washington. These articles sensationalize isolated incidents with the intention of selling newspapers. The articles appearing in the newspapers do not and cannot offer the in-depth analysis necessary to truly understand the dynamic elements underlying the problems in question. They simply place blame.

While repositioning oversight might make it easier for litigious attorneys to second guess and attack the activities of professional guardians, it does not address the systemic problems within the industry, not the least of which is the paradox inherent in the nature of the venue used to protect vulnerable citizens.

The development of a structure that protects the vulnerable citizens of our state should include input from the legal community, not emanate from it or be completely controlled by it. Otherwise, I am afraid that the legal community’s misplaced efforts to “protect” will only continue to add to the already overabundant litigation in guardianship cases, the systemic exploitation of vulnerable elderly population, and the further alienation of qualified persons who are truly capable of serving the needs of the vulnerable citizens of our State.

George Marcoe, certified professional guardian

Perhaps the most controversial aspect of Ms. Dore’s piece is not the need for change, but how that change ought to take place. Ms. Dore is opposed to the judiciary serving as “super” monitor. If I were creating a monitoring system, my initial reaction would not be to turn necessarily to the courts since our courts are fundamentally an adjudicatory institution; not regulatory in nature. Obviously the courts are (and will always be) necessary to “adjudicate” the issue of wrongdoing by a fiduciary, but to also be the body that monitors and investigates fiduciaries? I have my doubts about that. Assume the court investigates and uncovers what it believes to be wrongdoing by a guardian. Now what does the investigator do? Take action to correct the problem? And if he does, to whom does the guardian turn if the guardian wishes to defend herself? How can she turn to the court for a fair adjudication of her actions when it was the court that determined wrongdoing? The “neutral” trier of fact has now become the accuser and the avenger! I well understand that the initial reaction by those wishing to finally see fiduciary oversight is to turn to the courts as the logical choice since they appointed the guardian in the first place. However, such an approach seems more like a knee-jerk reaction to an admittedly troubling issue rather than a thought out approach that makes sense to all involved. I thank Ms. Dore for at least starting the debate.

Anthony J. Serra, Princeton, New Jersey

Kudos to Margaret Dore for her article regarding the dark side of guardianships. As a probate practitioner, I have observed instances of financial abuse (over-billing, over-staffing, and incompetence) by certain guardians and their attorneys. The system lacks meaningful oversight. Recourse to the court is often impractical, unproductive or counter-productive. The most vulnerable among us and their families (if they have families) pay the bill.

Ms. Dore hit the nail on the head regarding the problem. I am not, however, sure about the solution. I agree that there should be more discussion. Meanwhile, I can only selfishly hope and pray that no family member of friend of mine ever be the subject of guardianship proceeding under the current system.

Theresa Schrempp, Bellevue

A fine mess

I am responding to Kevin Curtin’s letter in the April 2007 Bar News. I agree that 20 percent is too steep a fine for paying your dues three days late. I paid my dues on time, but I got socked with a surprising late fee anyway. I was one-half credit short of my ethics CLE credits this year. When I tallied it up in December this year, I was surprised to find that I was half an hour short on the mandatory ethics credits. I tried to make up the credit with an online seminar in December, but my computer is apparently too antiquated to be able to handle that. I ended up taking a 6.5 hour class in March that cost $195 (plus lunch and parking), just to get that half-hour ethics credit, and the Bar Association dinged me for $150 for getting the half-hour credit after December 31.

It’s hard enough for sole practitioners just to pay the rent and secretary’s wages every month, let alone keep taking expensive seminars, but when the Bar Association charges outrageous late fees, it makes it that much harder to continue to provide the public service that I do. After almost 20 years of active practice, isn’t there a point where you don’t need to continue to take so many ethics credits to stay active? That $150 just means I’ll take one less pro bono case this month.

Paula McManus, Everett