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HARRISBURG — More than five years ago, Pennsylvania identified widespread problems with its system of appointing and overseeing guardians — the legal decision-makers, chosen by judges, who manage the affairs of adults who are unable to care for themselves.
In response, the state Supreme Court established an office to oversee the implementation of 130 sweeping recommendations made by experts in the field. An update from 2019 noted significant progress, marking more than half as “accomplished.”
But a Spotlight PA review found the report paints an overly rosy picture of the situation. Experts say that critical changes needed to better protect vulnerable seniors lack funding, are incomplete, or are stuck in limbo in the state legislature.
Of the recommendations marked as “accomplished,” many were not actually put into practice, the review found. One of those recommendations — to guarantee legal counsel to people who might be put in the care of a guardian — has been at least temporarily shelved.
Other reforms marked accomplished will be included as “best practices” in a new guidebook for judges who handle guardianship cases. The book, still in draft form, was originally slated to be published in early 2019, but is now expected this summer.
The “most significant accomplishment,” the update said, was the rollout of a highly touted technology to collect data about guardianships and to automate portions of oversight. One year later, however, there is little consistency as to how, and how well, counties are using it.
Other recommendations are caught in stalled legislation or unfunded mandates.
“Having protection systems that function properly is a bipartisan, commonwealth-wide issue,” said Katherine Pearson, a professor of elder law at Penn State’s Dickinson Law School, who served on the task force that drafted the recommendations. “Am I frustrated with the Pennsylvania legislature’s slowness to address and adopt carefully considered reforms, such as a clear right to counsel for alleged incapacitated persons? Yes.”
Those involved with the guardianship system — from judges to court clerks to attorneys — say they are impressed with the state’s efforts to bolster protections in recent years. Court officials are committed to improving the new tracking and oversight technology, and nearly all agree the data it provides will offer crucial insights into the system.
“It’s a huge step in the right direction,” said Kathryn Holt, a senior court research analyst for the National Center for State Courts. From a national perspective, Holt said, she has been “very impressed” with Pennsylvania’s progress.
But a lot of work remains.
Stewart Greenleaf, a former Republican lawmaker from Montgomery County, spent years attempting to pass sweeping changes to the system. But he was unable to get a bill establishing better guardianship protocols for courts to the governor’s desk before retiring in 2018.
The legislative process takes time, Greenleaf said.
“It’s as simple as that,” he said. “That it’s not that simple.”
Around the time of Greenleaf’s retirement, Sen. Art Haywood (D., Philadelphia) announced his intention to reintroduce and update the bill, but more than a year later, he still hasn’t. He said he can’t find bipartisan support.
Asked where Pennsylvania’s guardianship system stands now, Haywood responded with one word: “Stuck.”
‘We need to appoint counsel’
In Pennsylvania, there are about 18,400 adults living under guardianship. More than half are age 60 and up.
Guardianships begin when someone is perceived to be unable to care for themselves. If they do not have an existing legal document describing their preferences, like a durable power of attorney, their case is sent to the local Orphans’ Court. There, a judge can appoint a guardian to take control of financial, medical, and personal decisions.
Unlike many states, Pennsylvania does not require that courts provide lawyers to represent people facing guardianship. Vulnerable seniors who cannot find or afford an attorney can be left to navigate the process alone.
“It’s stressful for courts,” said Karen Buck, executive director of SeniorLAW Center in Philadelphia and a member of the task force that made the recommendations. Judges cannot give legal advice, and without representation, Buck said, people might not be aware of their rights.
In 2014, the task force recommended changing court rules to make legal representation a requirement.
But the Orphans’ Court rules committee dismissed the recommendation, instead deciding that appointment of attorneys, in cases where someone doesn’t provide their own, should be left to a court’s discretion. In a notice, the committee cited concerns about the financial burden and added that “a large majority” of guardianship cases go uncontested.
Haywood, who was previously an attorney for people who could not afford legal representation, said the committee’s analysis doesn’t cut it.
“Failure to contest is not an indication of the lack of the need for legal representation,” he said. “In fact, it can be conceived as the exact opposite.”
Still, the recommendation to mandate counsel was marked as “accomplished.”
Cherstin Hamel is the director of the state’s Office of Elder Justice in the Courts, which is overseeing the implementation of the 130 recommendations. She said that if a recommendation was considered, but not adopted, it was marked as “accomplished.”
Hamel added the guidebook for judges will indicate that it is best practice for counsel to be appointed in every case.
Lawmakers could mandate the right to counsel through legislation. But according to Haywood, there has been “tremendous” pushback to the idea, primarily over “perceived costs.”
Some judges have taken matters into their own hands.
George Zanic, president judge of the Huntingdon County Court of Common Pleas, appoints an attorney each time someone facing a guardianship hearing does not provide their own. In situations where the individual cannot cover the fees, he said, the county pays upfront and is later reimbursed by the state.
According to Zanic, who served on the task force, the issue is vital.
“We need to appoint counsel,” he said. “There’s no question about it.”
Improved oversight with a tech assist
In 2014, the task force found that nearly 70% of Orphans’ Courts did not track whether they were receiving annual updates from guardians with information about an individual’s finances, health, and well-being.
The task force recommended a new technology that could automatically notify Orphans’ Courts when guardians failed to file required updates. An algorithm would also search across those reports and trigger automated alerts when something seemed amiss.
By December 2018, the new technology was in place across Pennsylvania, and one year in, many who interact with it say the tool is progress.
“I really like it,” said Lauren Cascino Presser, an elder law attorney in Johnstown, who helps her clients use the technology to submit their annual reports.
But for a tool intended to ease and streamline oversight, it falls short of addressing the disparities in how counties are monitoring guardianships.
Once a guardian submits a report, the tool automatically searches for 32 problem scenarios. The majority are related to finances. A report showing a drastic drop in assets, for example, triggers an automated flag.
But flags don’t directly imply wrongdoing. They require follow-up to determine whether harm is being done and what action, if any, should be taken.
In some counties, court staff is tasked with reviewing the incoming flags. In others, law clerks do the work. Some counties have outsourced the job to outside attorneys. One, so overwhelmed by the scale of alerts, said they recently tapped a retired judge to step in and assist.
By comparison, Minnesota has a similar tool that sends alerts to centralized teams of trained auditors.
“Any system is only as good as the people running it,” said Zanic, the judge in Huntingdon County.
Pennsylvania’s new technology is also susceptible to an old problem: bad actors.
Guardians are self-reporting and are not required to provide bank statements, receipts, or other documentation. And reports can only reveal so much, said Sherry Baskin, a longtime volunteer helping to monitor Dauphin County’s guardians.
“Unless there was something egregious and glaring, that wouldn’t be reflected,” Baskin said.
One benefit of the new system, many agree, is that when courts have questions, they can order guardians to submit evidence or appear for a hearing. Prior to the tool, court officials said, they lacked the authority to follow a hunch.
It’s when courts can’t keep up, though, that issues creep in.
Alerts arrive daily in Philadelphia, courts spokesperson Gabriel Roberts said.
They come not only for every flag raised in a file, Roberts said, but also for reminder notices and for reports that are overdue. There are flags for guardians removed from a case and flags for people who have died. Staff resources are “stressed and overwhelmed,” Roberts said.
When asked in January how Cumberland County is managing the tool’s alerts, Lisa Grayson, clerk of the county’s Orphans’ Court, said: “We’re still working that out.”
“You need to review the entire report,” Grayson said.
But, she added, that “takes manpower, it takes hours, it takes money.”
Hamel, the director of the office overseeing reforms, said the tool is “meant to enhance a court’s existing statutory obligation to monitor guardianships,” and that the office is “actively working to recommend best practices in reviewing reports.”
Still, her office has marked two recommendations for adequate funding to support guardianship monitoring as “accomplished,” citing the new technology.
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