Who protects us from the protectors?


	Edward M. Stern, J.D., has a private law practice in Newtonville, Mass. Stern serves as assistant dean for pre-law advising at Boston University and is a visiting lecturer for the University of Massachusetts/Boston Department of Sociology.

By Edward Stern, J.D. and
Rita Callahan Ralston

As we age, a concern is 'who will care for us in our elder years?' Many will rely on support and assistance from family. In many states, including Massachusetts, when an elderly person cannot make sound decisions for his/her own care because of mental illness or physical incapacitation, a family member or close friend may petition the court and be appointed to serve as a guardian for the individual who is generally referred to as the "ward."

The guardianship statutes of each state detail the specific duties of the guardian, but typically the guardian possesses the responsibility of acting on behalf of the individual as well as ensuring that the ward's best interests are met by overseeing the ward's physical, mental and medical needs. The guardian's specific duties or limitations are established in the court and may include the ability to make medical and personal decisions, as well as managing the ward's finances. If the ward is able to make medical and personal decisions but not manage his or her own finances, the court may appoint only a conservator for financial oversight and not a guardian.

However, a growing number of elders do not have family or even friends to take on this role. For these individuals, a category of people termed "unbefriended elders," the prospect of growing old alone in Massachusetts can be a prescription for a very formidable existence.

A January 2008 Boston Globe article highlighted many flaws in Massachusetts' legislation and probate courts' handling of guardianship cases involving elderly wards. Through the examples of Dawn Cromwell, Rose Doyle and Thomas Stalker, the article illustrates the ease with which the elderly may be labeled as incapacitated, stripped of their personal freedom and placed in the care of a guardian.

They often subsequently do not receive the care and attention that they deserve and their cases disappear into a system that does not have a proper mechanism to follow them beyond the court's initial decision to appoint a guardian.

After suffering a broken ankle in 2006, Dawn Cromwell, a woman in her early seventies, was admitted to a nursing facility for rehabilitation. She expected that when her strength returned she would go home. However, as The Boston Globe article reports, "on the say-so from the nursing home's doctor - a short, nearly illegible diagnosis - a judge decreed that Cromwell was mentally ill and handed all of her decision-making to a guardian." Twenty months later, she remains confined in the nursing home, wears an alarmed device on her ankle and has been forgotten by the system.

In the case of Rose Doyle, 74, in December 2006, a hearing that lasted about two minutes was all it took for a judge to determine that Doyle should be placed in the care of a guardian. For three months, Doyle was confined to a nursing home against her will. The article states, "She complained to Greater Boston Legal Services. In May 2007, after an outside psychiatrist concluded that Doyle was competent, [Judge] Merrill reversed her decision. In November, Doyle died."

A third individual, Thomas Stalker, who had been a patient at Massachusetts General Hospital, was found to be mentally ill and placed in the care of a guardian based on a six-word diagnosis - "Alcohol-related brain degeneration. Karsakoff's syndrome" - and an anecdote supplied by the hospital's attorney about the patient's loss of short-term memory.

There may be hundreds of senior citizens, like these examples, who have sought medical treatment and then unexpectedly and unwillingly wound up as the ward of a court-appointed guardian.

Alarmingly, these citizens have been stripped of their personal freedom without comprehensive medical documentation or legal representation. This begs us to ask many questions such as, 'what are the rights of an individual who seeks treatment for a physical ailment, who when treated is then deemed to require further care for mental health reasons?' 'What doctor is qualified to make such decisions and have them heard by the court?' 'Can such decisions be rendered without anything more than a six-word diagnosis, without an independent investigation, without the patient in question even having the opportunity to be heard?' 'Who protects us from the protectors?'

The Boston Globe investigation revealed that of the 308 cases filed in Suffolk County over the past five years, 72 percent contained medical certifications (primarily filed by nursing homes and hospitals) that were so brief they did not meet the court's minimum requirements. However, there was no indication of objections to the lack of information.

Lawyers, judges, and advocates for the elderly have agreed that the guardianship laws in Massachusetts are in need of reform. Yet, action has been slow. As the examples reveal, the antiquated system's results have been devastating.

In the past few months, there have been signs of change that should bring improvements to the handling of guardianship cases. On Jan. 13, 2008, The Boston Globe quoted new Chief Justice of the Massachusetts Probate & Family Court, Paula M. Carey noting her expectation that the probate courts would begin demanding greater proof of the need for guardianship and that the legislature would soon approve an overhaul of the state's probate law.

As reported, "The legislation would require much more detailed medical information, limit the scope of guardian powers, require the court to examine a guardian's qualifications and provide for the incapacitated person to be present at the hearing and have the right to counsel. The measure would require additional court approval for nursing home placements and mandate guardians to file detailed annual reports about the physical and mental health of the person entrusted to their oversight."

On March 26, 2008, the Probate and Family Court announced a new medical certificate form (CJ-P 112). The new form (which can be viewed at: http://www.lawlib.state.ma.us/forms.html) has been significantly changed to require more information be provided to judges in guardianship cases. The form took effect on April 15, 2008, and it must now be used in all guardianship cases involving disabled individuals.

While the new medical certificate requirements should bring improvement to the handling of these cases, there are other related pieces of the system that require reform. As the Globe investigation revealed, once a person enters the guardianship system, the case virtually vanishes. Although by law there is a process that guardians are required to follow when they take on a new ward, few of them actually do so. They regularly ignore the requirement to file an initial inventory of a ward's assets and provide an annual accounting of how they managed the ward's personal finances.

The state currently has no procedure for licensing guardians. There is no minimum or standardized training requirement or assessment required to act as guardian, and the courts have no way of tracking how many wards a guardian has. The lack of oversight leaves guardians virtually unregulated. It leaves the process open for individuals who might lack the skill, training or ability to take on the role of a professional guardian. Might these individuals in some cases see an opportunity to exploit an isolated elderly person? Again, this brings us to the question, who protects us from the protectors?

As the Baby Boomer generation heads into their golden years, the elderly population across our country will increase dramatically. Demographic data from the U.S. Census Bureau projects that by 2030, seventy-four million people will reach retirement age. Research also shows that trends in marital patterns and fertility histories will lead to a greater portion of the elderly population living alone and being less likely to have family caregivers. These changes in our population present many questions for our society.

The first step is having the issues and concerns recognized by the judiciary and legislature.

Who protects us from the protectors? (August/September 2008 Issue)

By Edward Stern, J.D. and Rita Callahan Ralston

Who protects us from
the protectors?
(August/September 2008 Issue)

By Edward Stern, J.D. and
Rita Callahan Ralston