SD29 - Legal Guardianship
Executive Summary: The joint subcommittee looked at various aspects of guardianship, not only as it affected the elderly but also those with mental retardation and mental illness. The numbers of persons falling into these categories are increasing due to a variety of reasons and circumstances. Unfortunately, the system has not kept up with the demand, and there are those who are not receiving the treatment and protection to which they are entitled. Many factors have been cited for the problems in the current system, including money, personnel and a general reluctance by some to get involved in what they see as a personal family affair. But families are not always willing or able to cope with situations such as this, and even when they are there are more than a few cases of abuse and neglect by the person appointed as guardian. In other cases, when guardians cannot be found to act, then sheriffs must act as guardians of last resort and they admittedly do not have the resources, time or particular skills to act in such capacity. Guardianship is a serious procedure whereby persons give up their rights to control their lives and/or their property, usually on a permanent basis. Legally these persons are reduced to a "minor" with regard to rights and responsibilities. In many cases, a guardian not only can make financial decisions for a ward, but he may also decide where the ward lives and how and even when he may die. Abuses do occur with regard to mistreatment of the individual as well as misuse of the ward's estate, but there are procedures in place to prevent such abuses and the failure of the system to protect may well be a failure to establish safeguards to assure that the procedures established are adhered to. Such procedures include enforcement of compliance with court orders, requirement for corporate sureties, as well as intervention by social service agencies, families, hospital personnel, physicians, ministers and other intimately involved in the care and well-being of a ward. It was also made clear that the problems with guardianship in the Commonwealth are not unique and that virtually every other state in the United States is currently experiencing some problems in this area and trying to deal with them in innovative ways which provide more protection for their citizens. This nationwide problem was documented in an Associated Press series in September of 1987 which involved participation of more than sixty-seven staff writers who did research in all fifty states and the District of Columbia. They found "a dangerously burdened and troubled system that regularly puts elderly lives in the hands of others with little or no evidence of necessity, then fails to guard against abuse, theft and neglect." The AP estimated that there are approximately 300,000 to 400,000 persons under guardianship at anyone time in the United States, but this is merely an estimate since there are neither federal nor state tracking methods of these types of cases. Guardianship proceedings are strictly local affairs, and most localities cannot determine how many guardianships are being monitored at any one time. To add to this are the numbers of people evaluated as needing a guardian but who, for some reason, do not have one, and the numbers vary according to who performs the estimate. To begin solving the problems at hand, the subcommittee has made several recommendations which generally deal with the grounds for the establishment of a guardianship, increased oversight of the guardianship once granted to evaluate the overall condition of the ward, the ability to modify a court order for guardianship to reflect the changing conditions and needs of the ward, and the evaluation and further study of some form of alternative guardianship for those who have no one to serve as guardian or whose estates are negligible. |
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