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MATT PERKINS, ATTORNEY AT
LAW This page presents some information regarding a proposed change in the law regarding guardianship appointments.
I have practiced in the area of guardianship law for over ten years and I have seen over and over again
where a well-meaning and qualified family member is rejected in favor of a professional guardianship company because there is disagreement
within the family, that family member candidate is perceived as unsophisticated, or there is a completely unsubstantiated allegation of
some self-serving motivation on the part of that family member. There are reasons for this, and it cannot be argued that family members
are always a good choice. In the vast majority of cases, however, a family member can be counted upon to provide excellent service as a
guardian and to do so at a tiny fraction the cost of a professional.
Over the years, there have been discussions of the pitfalls of the guardianship and many improvements have been made in
various aspects of the process surrounding the initial appointment as well as subsequent monitoring and follow-up, but scant effort toward a
comprehensive or systematic evaluation of how well the system is really doing. We see periodic media reports of tragic abuse of vulnerable
adults both within and outside of the guardianship system, and there have been some dramatic articles in local newspapers such as the Seattle
Times over the last few years but these are not based on any comprehensive survey or systematic analysis. However, a few recent reports that
were based on an attempt to review a large number of cases have appeared in the Los Angeles Times and in a study undertaken for the New York
courts. Click the thumbnails to view the source.
There are a vareity of areas where improvements may be made, but the enactment of a stated preference
for the appointment of family members as guardians will help address the uneven playing field that favors the appointment of professional
guardians in cases where family members may be a better choice. Such a preference would not prevent judges and court commissioners from considering
any stated concerns about such appointments and might even help them address such issues because a requirement for clear findings when a professional
is to be appointed instead of a willing and apparently able family member may help focuss the inquiry.
Why are professional guardians presently preferred over family members?
Are family member guardians risky?
After their appointment, guardians will have a lot of power and nobody should be appointed if they are a
known crook or if they have in the past mishandled their own or some other parties' finances and there is a reason to think they may do so again. However, standard guardianship practices
go a long way to prevent such problems from occurring or to reimburse the ward should a problem occur: the courts typically enter orders that
block all access to monetary assets in excess of current projected needs for the care of the ward and they require all guardians to obtain a
bond that serves as an insurance policy in the event that the guardian embezzles guardianship funds. The courts also require periodic
accountings that include a balance sheet showing all assets that the guardian has handled and lists all disbursements or expenditures made on
behalf of the ward. As noted, there are no studies indicating that family member guardians are likely to steal from their wards and, in my
experience, the vast majority of cases where a family member exploits a vulnerable adult or a disabled younger person
who may be unable to oversee their finances occur outside the context of any guardianship. The second reason that judges or commissioners frequently deny
family member appointments is that there is some kind of ongoing family conflict and they fear that this may interfere with the proposed
family member guardian’s ability to serve their ward. This may in some cases be a good reason to appoint a “neutral” third party but in
other cases the clear pronouncement of authority that would result from the court’s appointing one of the family members may ease the
conflict or there may be other remedies. The third common concern stated by a judge or commissioner who
is hesitant to appoint a family member is that they may lack professionalism and therefore may not be capable of addressing the issues that
are present. However, most guardianship cases do not required special expertise beyond simple bookkeeping skills and a willingness to
communicate with and perhaps coordinate the efforts of caregivers, other support services, friends and family of the ward who is subject
to a guardianship. Where there are specialized services needed, a family member guardian has a wide variety of options available if they
need to hire financial advisors, specialized medical personnel, or specialty therapists. It goes without saying that most of us will seek
to be sure our family members' needs are met and a commentator in New York recently offered "a professional guardian is hard-pressed to
compete with the love and energy of the familial or devoted friend as guardian in most cases." Click the thumbnail to view the source. Every case is different but the bottom line is that the courts are more willing to appoint professional guardians than family members wherever they are faced with a choice between the two. Potential drawbacks of professionals often go unaddressed The reasons for this are complex, but a few simple factors are easy to appreciate. First of all, professional guardians are providing services that are typically billed by the hour, and they do not receive extra income or any professional recognition or other business advantage for seeking to save on costs and expenditures that will be billed to their ward. They will err on the side of providing extra services and hiring extra caregivers, advisors, or handymen wherever they see a role for these persons because they may later be criticized for failing to do so and coincidentally they also earn more money this way because professional guardians bill by the hour and they will charge their ward for the time they spend administering a case. When it comes to dealing with family members who may wish to suggest various care or lifestyle choices, the professionals are likely to view such suggestions as an effort to interfere with their professional judgment or an impediment to meeting professional standards that may apply to professional people such as attorneys and social workers but which do not always meet individual family needs. Similarly, they are often reluctant to supply accounting information and sometimes even fairly benign status reports to family members when they see no advantage in doing so and they may worry this information will be used to criticise them. (Family members, too, are sometimes hesitant to accept feedback or provide information about what they are doing but one would hope that the professionals would handle these matters better than they do and it should also be noted that, when disagreements of this sort do arise, the professional guardians are at a distinct advantage in knowing how the system works and can often stonewall perceived interference or even good faith inquiry much more successfully than a family member guardian can.) Lastly, when there is a question as to whether they should employ this or that course of action, the professional guardians are much more likely to consult with their attorneys or to return to court for additional direction -- and they will be directly compensated for doing so. Many media reports on these issues are particularly scathing in their treatment of professional guardians. See, for example, When a Family Matter Turns Into a Bussines - Los Angeles Times (linked above). As noted, there are other reports appearing in the media, including a rather alarming series of pieces recently appearing in the Seattle Times, but these not linked here because they are not based on an effort to analyze the frequency of the problems presented. One study undertaken by a court in New York state also contained some findings critical of professional guardians but there was no quanititative analysis of how often the noted problems arise. See Fiduciary Appointments in New York: A report to Chief Judge Judith S. Kaye and Chief Administrative Judge Jonathan Lippman (linked above). Anybody reading any of these reports is urged to consider that even where there is found a tendency for professional guardians to be very expensive, to look out for their own business interest, and to exclude families, these problems do not necessarily result from any lack of professionalism or malicious motivation on the part of the professional guardians. These tendencies are simply the result of various business pressures and legal concerns that grow out of the modern professional and legal landscape.
Proposed change in the law to encourage appointment of family members The guardianship process would be unchanged in that guardians will be appointed only after a court-directed investigation into the qualifications of anybody proposed for the role of guardian including a background check, interviews with family members or others having relevant information, written reports from at least one doctor, and testimony from the person who is thought to require a guardian. If there is a good reason to deny a family member appointment, the judge or commissioner who makes the guardianship appointment will still do so.
Please call or write:
Senator Ken Jacobsen
Senator Pam Roach We hope this bill will gain bipartisan support as it is rooted in an appreciation and respect for the value that family members offer in deciding how to care for the infirm, aging, or disabled.
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