A Guardianship Policy for the 21st Century

A Guardianship Policy for the 21st Century

by Peter Macy, Ed.M, J.D.

An Open Letter to stakeholders and policy makers from the Massachusetts Guardianship Policy Institute:

The Massachusetts Guardianship Policy Institute (the “Institute”) advocates two important reforms to the guardianship/conservatorship system in Massachusetts: (1) a public guardian for the most isolated and indigent individuals in need; and (2) a state office to oversee the quality, impact, cost‐effectiveness and adequacy of guardianship and conservatorship services statewide. No agency in the state today performs either of these critical functions. A host of service gaps, inefficiencies and inconsistencies in quality is the result.

Four years ago the Institute initiated a major effort to enact legislation to establish a public guardian for Massachusetts, supported by matching bills filed in January, 2017, by Senator Cynthia Creem and Representative Paul Brodeur. Educational events, a Steering Committee, seminars with public guardianship programs in Kansas and Florida, and meetings with legislators went on for a year and a half prior to, and following, the filing of the bill. Significant private funding for the proposed program was offered as part of the legislation.

This effort received exceptional support from an informed group of legislators, led by its sponsors, and by Senator William Brownsberger as co‐chair of the Joint Committee on the Judiciary. But the session ended without resolution on a number of social policy issues in July, 2018, and the initiative did not have enough general support to survive. In the end, the Legislature did not even agree to study the problem, as suggested by Representative Claire Cronin, who, as House co‐chair of the Joint Committee on the Judiciary, proposed a Special Commission to Study Guardianship in place of the proposed agency.

Changing Focus

It should not be too surprising, or too disappointing, that the Institute has decided to focus on its second objective for reform – a state office of guardianship oversight – for the current Legislative session, rather than relaunch the mission for a public guardian agency. Sometimes persistence is just stubbornness, and we have learned from consulting with the stakeholders. Moreover, an office to improve oversight of guardianship is very likely to produce more and better information about the kind of public guardian that would be best for Massachusetts, when the Legislature again takes up that proposal.

There is another reason for the Institute to change focus: while the Legislature was considering the public guardianship bill, scandals involving embezzlement and emotional abuse by professional guardians in least two states in other parts of the country made national news. These crimes were perpetrated by bad actors in poorly‐supervised probate systems; nothing similar is likely to occur in Massachusetts. But the extent of the harm was extraordinary. It should concern us all that there is no state office in the Commonwealth equipped pro‐actively to detect and prevent these kinds of potential schemes by fiduciaries appointed by our own courts.

A Public Office to Oversee Guardianship

News of scandal complicates guardianship policy, which already is more fraught than any public duty ought to be. The act of making a decision for someone else, on the presumption that the person can’t act for him‐ or herself, is complex, troubling, expensive, historically misunderstood and often hard to do – all traits that do not lend themselves to easy public policy choices.

The decision to oversee and support guardians, however, is a choice that is as uncomplicated as guardianship itself is complicated. What is there to criticize? The cost? Here’s a little number to help bring cost into perspective: the scandal in New Mexico cost its citizens four million dollars in embezzled funds. The legal structure of guardianship and conservatorship holds the state financially liable to the victims for these losses. That is so because the unfaithful fiduciaries were agents of the state.

In addition to restitution, the cost to the state to prosecute the case, which involves at least four defendants, seems likely to be significant. A hundred thousand dollars? Half a million? Whatever the amount, the final bill to the public will exceed four million dollars for this one case, including both victim compensation and costs of criminal prosecution. Forfeiture statutes may help the state to recover some of its losses. So too would surety bonds that the perpetrators would have been required to maintain – if in fact they maintained them, and assuming they are payable for intentional wrongdoing. But full reimbursement to the state is unlikely.

Even if the balance of purely financial costs did not favor additional investment in oversight of guardians and conservators, the risk of other costs ‐‐ personal, social and moral – should affect the choice. The current annual budget for the Massachusetts Trial Court is about six hundred and fifty million dollars. If an Office of Adult Decisional Support Services were to cost one million dollars – a figure that is quite realistic – the added cost would represent less than one third of one half of one percent – 0.15% – of the total budget. That percentage is close to being a rounding error in a budget that size. The wisdom of incurring such a tiny known cost, for an office that may prevent devastating non‐financial damage to vulnerable individuals and families, most of which essentially cannot be recovered, speaks for itself.

Final Thoughts

Massachusetts for the past 80 years has addressed guardianship policy in fits and starts. The decades 1950 through 1990 saw intermittent changes in the statute to professionalize guardianship, such as requiring more diagnostically‐related medical evidence in the appointment process. Importantly, those revisions substituted “mental illness” and “developmental disability” in place of the labels that had been used since the turn of the 20th Century – labels coined by eugenics enthusiasts, with strong connotations of inferiority – to describe persons with decisional needs. The person‐centered movement grew in influence nationwide during the 1970’s and ‘80’s, and produced a complete rewrite of the adult protective provisions of the Uniform Probate Code (UPC) in 1997. Ten years later, Massachusetts finally adopted the UPC, including the changes in Article V, which gave respondents more access to legal representation, and replaced diagnosis‐based criteria with evidence of functional incapacity as the standard for appointing a guardian or conservator. The new law, representing the biggest change in guardianship and conservatorship law in Massachusetts in nearly a century, went into effect in 2008.

But other jurisdictions around the world were far ahead of Massachusetts by the time it enacted the UPC. That same year, the United Nations approved the Convention on the Rights of Persons with Disabilities, which declared flatly that “all persons have legal capacity.” In the ten years since then, the system’s tendency to produce plenary guardianships and conservatorships in nearly all cases has been subject to severe criticism, while non‐judicial approaches, such as Supported Decision‐Making, which have been gaining ground in the U.S., Canada and parts of Europe, are taking hold in Massachusetts without significant legislative support.

Guardianship and conservatorship law is a moving target. And well it should be: these laws concern fundamental constitutional rights, and they affect individuals and families in ways that almost no other law does. Massachusetts cannot continue responsibly to shape its policies in this area through episodic spasms of reform, followed by decades of neglect. The initiative for an Office of Adult Decisional Support Services is an idea whose time has come. It deserves broad support and timely enactment in the current Legislative session.

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