This week on the Capital-Star, we’re taking a look at due process and its intersection with issues across state government. Have an idea or an opinion? Email us at [email protected].
By Karen C. Buck, Pamela Walz, and Sam Brooks
Imagine a legal proceeding where all of your rights are taken from you and given to someone else. You may have never met that person who now controls your life decisions.
You likely did not have an attorney representing you and you may not even have been present at the hearing. Suddenly you have no control over your money, your home or possessions, where you live, who you interact with, or what health care you receive.
Sounds like incarceration, right?
But it’s not. You aren’t being accused of a crime, and in Pennsylvania, if you can’t afford an attorney, you have no right to have one appointed to represent you.
Unfortunately, this happens to Pennsylvanians all too often. It’s called “guardianship,” and few legal proceedings have more impact on an individual’s fundamental rights and liberties.
That’s why Pennsylvania needs a right to counsel for people facing guardianship proceedings, as well as reforms to protect the health and safety of individuals deemed incapacitated.
Guardianship can be an important legal tool for very vulnerable, severely cognitively impaired individuals who need someone – usually a trusted family member – to step in to make financial, medical and other decisions, if they are unable to do so.
But guardianship should only be used when other less restrictive ways of supporting a person are not available.
That’s because it is ripe for abuse, neglect and exploitation in the wrong hands. Recent reporting by the Inquirer revealed that a court-appointed guardian, who had control of hundreds of elderly peoples’ lives and finances, had previously been convicted of financial fraud and forgery. She was removed from that role, and the courts found she had misappropriated the funds of people for whom she was caring. Last month, she was arrested on multiple felony charges stemming from those thefts.
There are approximately 1.3 million adult guardianships in the U.S., which control over $50 billion in assets – and the guardianship abuse and exploitation exposed by the Inquirer is not unique. In Nevada, a professional guardian and her colleagues faced over 250 felony charges for exploiting over 150 vulnerable individuals under their watch.
“She was not a guardian to me,” said one of her victims, “she did not protect me. As each day passed, I felt like I was in a grave, buried alive.”
This guardian was arrested, pled guilty and was sentenced to 16-40 years in prison. At her sentencing, a Las Vegas courtroom was packed with victims and relatives of those who died under her watch and those too ill or weak to attend the proceeding as a result of her actions. Stories like these are emblematic of a cycle of guardianship abuse that has reached crisis levels nationwide.
Fixing this in Pennsylvania begins with ensuring individuals facing guardianship proceedings have a lawyer to advocate for their wishes and represent their interests. Unlike the great majority of other states, in Pennsylvania there is no right to have an attorney appointed in a guardianship case.
As a result, people facing a guardianship proceeding are often un-represented because they are unable to afford or find one or do not have the opportunity to do so.
This results in people going to court alone to fight for their most fundamental rights of freedom and autonomy, with no legal support and having to face an opposing party that is represented by a seasoned attorney.
Legislation has been introduced in each session of the General Assembly for the past several years to improve Pennsylvania’s guardianship law.
Because such fundamental rights are at stake, Pennsylvania must join the vast majority of states in requiring the appointment of an attorney in all guardianship cases. Beyond creating a right to counsel in these cases, the General Assembly should ensure that unqualified individuals cannot be appointed guardians.
Specifically, professional guardians who serve three or more individuals should be required to obtain certification, to pass a criminal background check, and to comply with professional and ethical standards.
The time has come for Pennsylvania to make sure vulnerable adults have legal counsel in guardianship proceedings and safeguards are in place to ensure professional guardians fulfill their important responsibilities.
Nevada, where abusive guardians once reigned, is now the gold standard for guardianship law in the nation.
In Nevada, every individual facing or in guardianship is now appointed a nonprofit legal aid attorney to protect her rights and ensure her voice is heard, throughout the duration of the guardianship.
These attorneys do not bill the individual or their estate and have no economic conflict. Their only interest is the wellbeing of their client. Surely vulnerable Pennsylvanians deserve the same.
Karen C. Buck is the executive director of the SeniorLAW Center in Philadelphia. Pamela Walz and Sam Brooks are supervising attorneys in the Aging and Disabilities Unit of Community Legal Services in Philadelphia.