Good Afternoon, Chairman Canfield and Members of the Subcommittee. I am Alison Hirschel, Director of the Michigan Elder Justice Initiative (MEJI) and I also teach Elder Law at the University of Michigan Law School. MEJI provides free legal services and advocacy for vulnerable, low income older adults and people with disabilities. We are also proud to house the State Long Term Care Ombudsman Program, two local long term care ombudsman programs, and the MI Health Link Ombudsman. We also have a new initiative -- the Crime Victims Legal Assistance Project -- that funds 10 legal services lawyers around the state to provide representation for older adults who are victims of a broad array of abuse, neglect, and exploitation. I greatly appreciate your interest in guardianship and the opportunity to testify today.
Guardianship touches older adults in all of MEJI’s programs. It is intended to be a benign and important protective device for people who are truly incapacitated. Many families and others seek guardianship out of a sincere concern for vulnerable individuals who are not able to manage their own affairs and who would come to real harm if someone else did not step in. Sometimes, guardianship really is necessary. If guardianship were only granted in Michigan when no less restrictive alternative existed and when an alleged incapacitated person was able to exercise a full array of due process rights and be assured of a capable, responsible guardian, I would not be testifying today. Sadly, that is not the case. In Michigan, as in many other states, guardianship can be one of the darkest corners of the law, a means to abuse and exploit vulnerable individuals as well as a way to protect them.
It’s important to understand the extraordinary impact guardianship has on people’s lives. In Michigan, despite a preference in the law for limited guardianships, courts almost always impose plenary guardianships which means that someone else controls virtually every aspect of the incapacitated person’s life. Many years ago, Representative Claude Pepper described plenary guardianship in this way:
The typical ward has fewer rights than the typical convicted felon – they no longer receive money or pay their bills. They cannot marry – or divorce… it is, in one short sentence, the most punitive civil penalty that can be levied against an American citizen, with the exception of…the death penalty.
The California Supreme Court noted that a person under guardianship may be subjected to greater control of his life than someone convicted of a crime. Professor Nina Kohn referred to people under guardianship as “legal ghosts.” And in Michigan nursing homes, they are simply described as “not their own person anymore,” a poignant reminder of how much they have lost.
If we are going to impose such a devastating loss of fundamental rights, we want to be sure we do so in a careful, consistent manner with particular attention to the rights of the alleged incapacitated person. Our guardianship law guarantees many important due process protections. But each probate court across the state handles guardianships in its own way, sometimes ignoring key safeguards of individual rights and the mandate that guardianships should be imposed only if they are necessary. In many counties, cases are not adequately screened before they get to court and less restrictive alternatives are not considered. Guardianship hearings may last as little as a few minutes and guardianships are routinely imposed when the alleged incapacitated person is neither present nor represented by counsel. Guardians ad litem and lawyers who are appointed in guardianship cases are often paid such a nominal fee that if they fulfill their respective obligations to engage in thorough investigation and zealous advocacy, they must do so in part on their own time. And professional guardians with huge caseloads and no knowledge of the individual are often appointed even when suitable and willing family members are present.
I recently completed an informal poll of elder law attorneys around the state about probate practice in their counties. There was great variation in practice between counties and sometimes even between judges in the same county. In one county, a very experienced lawyer told me that guardianship cases usually last 3-5 minutes and procedurally complex cases are afforded about 10 minutes. She said that the alleged incapacitated person is not present in about 80 percent of the cases in which she has been involved and that only about 5 percent of alleged incapacitated individuals are represented by counsel. In that county, like most or all counties, few petitions for guardianship are ever denied. In another county, a lawyer reported that hearings take no more than 10-15 minutes, that the alleged incapacitated person is not present at least half the time, and that, as in the other county, only about 5 percent of alleged incapacitated individuals were represented by counsel and few petitions are ever denied. As a Utah judicial committee noted in a comment that could, unfortunately, be applicable in some Michigan probate courts as well, “The appointment of a guardian… removes from a person a large part of what it means to be an adult: the ability to make decisions for oneself. … We terminate this fundamental and basic right with all the procedural rigor of processing a traffic ticket.”
What happens after the guardian is appointed is as alarming as the way many guardians are appointed. Courts are too busy and too short of resources to properly monitor guardians who may be neglecting, exploiting, or abusing the incapacitated person. Guardianship often serves as a pipeline to nursing home placement and the prompt, unceremonious sale of the individual’s house and belongings, often without any notice to the person under guardianship. Concerned families can lose all control and ability to advocate for—or even visit—the incapacitated person. Both people under guardianship and families and advocates report great frustration and challenges communicating with some professional guardians who may be responsible for scores of individuals but have virtually no knowledge of the people whose lives they control. Even when and if the incapacitated person recovers capacity, guardianships are rarely reversed, and many probate judges will not permit the person under guardianship to retain his or her own lawyer—even a legal services lawyer who provides services free of charge --to petition to terminate or modify the guardianship. Individuals caught in this system can feel helpless, powerless, and desperate. Indeed, if people with unscrupulous or overburdened guardians or those who never should have had a guardian appointed to begin with were playing a game of Chutes and Ladders, it would be all chutes and no ladders.
The long-standing problems in our guardianship system are now coming to light both in Michigan and across the country. I have attached very recent coverage from the Lansing State Journal and Channel 7 news in Detroit about problems with professional guardians in the Ingham and Oakland County probate courts. I have also attached an October 9 article in The New Yorker about horrifying abuse and exploitation by a professional guardian responsible for many vulnerable adults in Las Vegas who is now facing criminal charges. Public radio also covered this story last week. And there have been national investigations, including three studies by the U.S. Government Accountability Officethat found similar problems to what I am reporting in states across the country.
But there are strategies to address this quiet crisis. Probate courts must screen potential guardianship cases adequately initially and divert cases that could be resolved with less restrictive means—including referrals for services to address the needs of the vulnerable individual, the use of supported decision-making, and mediation for long-standing family disputes that too often lead to guardianship. Courts must be required to act consistent with our guardianship statute by offering a full array of due process protections, denying petitions when guardianship is neither necessary nor appropriate, and imposing limited guardianships, when appropriate, as an alternative to a plenary guardianship. Additional resources that permit courts to do their job right –both before and after the appointment of a guardian--must be provided. And we absolutely must regulate and monitor professional guardians. Why do we license barbers and cosmetologists but not the people who may control every aspect of our parents’ lives? Why can’t we utilize some of the excellent models developed by the American Bar Association and other states for developing volunteer or paid guardianship monitoring programs? There are many other solutions and I and the staff at MEJI are eager to work with you, probate courts, the legal community, professional guardians, other advocates and all the stakeholders who must be part of any solution. We can do better.