(Image AdobeStock via The Philadelphia Gay News)
With thousands of active guardianships in Pennsylvania, two state lawmakers have a bipartisan plan to prevent abuse in cases where someone is legally appointed to make decisions on another’s behalf.
Adult guardianships, also known as conservatorships in other states, occur when a court deems a person incapacitated — legally referred to as a ward — and appoints a third party to make decisions on their behalf. Concerns of exploitation have surrounded the legal arrangements for years.
Cases such as Britney Spears’s conservatorship have demonstrated how the court-appointed representative’s control strips someone’s ability to make decisions for themselves. Even the Netflix thriller, “I Care a Lot,” highlighted how the guardianship system can target and steal assets from older adults.
In October 2019, three court-appointed guardians embezzled more than $1 million from 108 victims in six Pennsylvania counties. Before that, the Social Security Administration investigated the alleged embezzlement of more than a quarter of a million dollars by the Cambria County-based Distinctive Human Services, which serves as a legal guardian, in 2014.
Concerned that guardianships will rise, Sens. Lisa Baker, R-Luzerne, and Art Haywood, D-Philadelphia, have announced plans to prioritize efforts to find alternative options and add policies to improve the process when guardianships are the only viable option.
“While guardianship can be an appropriate tool to support some individuals who cannot make decisions themselves, it should be limited and used only as a last resort,” the lawmakers wrote in a memo seeking legislative support last week. “Alternatives to guardianship may prove equally effective at a substantially lower emotional and financial cost.”
Their forthcoming bill would require appointing counsel for someone deemed incapable of making decisions for themselves when a lawyer hasn’t already been retained. They also propose certifying professional guardians. Courts would have to ensure that alternative options — such as habilitation programs or appointing a representative payee — were explored and explain why less restrictive measures were insufficient.
“Although there are circumstances when the appointment of a guardian is unavoidable, there are a variety of alternatives available,” Baker and Haywood wrote. “Many individuals seek the help of family or friends to manage money or serve as a health care representative.”
The lawmakers said they have support from the Pennsylvania Bar Association and Disability Rights Pennsylvania for their proposed bill.
In September, U.S. Sens. Bob Casey, D-Pa., and Susan Collins, R-Me., introduced the Guardianship Accountability Act. The legislation addresses recommendations in a 2018 report from the Aging Committee about improving the guardianship process.
Their proposal would expand grants, so states can create guardianship databases to assist with collecting information on guardians, training court visitors, and sharing background checks with other entities. The Guardianship Accountability Act also would establish a National Resource Center on Guardianship to collect and publish information relevant to guardians, wards and their families, courts, states, local governments, and community organizations.
Pennsylvania in 2018 launched the Guardianship Tracking System to record active guardianships and allow guardians to file annual reports and inventories online. The commonwealth has more than 19,000 active guardianships.
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