The evolution, realities and need for reform of New York State’s Guardianship Law
“Only those with a calcified heart could have read the recent New York Times artcle, I’m Petitioning…for the Return of My Life, without becoming heartsick and concerned,” commented Risa Breckman, Executive Director of the NYC Elder Abuse Center, after having read the December 7, 2018 article. This New York times article motivated NYCEAC to publish this blog focusing on New York State’s guardianship law.
In some cases of elder abuse, the drastic intervention of requesting a guardian is sometimes deemed to be in the best interest of the victim. In New York state, an overhaul of Article 81 of the state’s Mental Hygiene Law was aimed at providing a more flexible, individualized approach for incapacitated individuals older than 18 years of age. It limited guardians to only those legal powers required to satisfy personal or financial care needs and mandated that courts consider alternatives to guardianship.
The February 2018 podcast Guardians of New York, hosted by New York State Watch’s David Lombardo, highlights ways in which New York’s current guardianship is now plagued by a lack of resources, shortage of guardians and court examiners, and outdated and inconsistent data methods. The podcast features an interview with Jean Callahan, head of the Brooklyn Neighborhood Office of the Legal Aid Society and former director of The Guardianship Project at the Vera Institute of Justice. It also includes comments, such as the one below, made at a New York Senate roundtable discussion in January 2018.
“By 2030 … there will be more 80-year-olds here than 5-year-olds,” New York State Supreme Court Judge Arthur Diamond stated during the January roundtable. “We are not prepared to care for and handle what’s coming soon.”
After considering the challenges of the state’s system, Judge Diamond and other attendees brainstormed such ideas as pilot programs testing local guardianships and strengthening the court examiner system.
Callahan also expressed optimism. “We don’t have to reinvent the wheel, and I think that our statute is actually really a strong statute. We just need to stick to it a little better.”
Below are highlights of the main issues mentioned in the podcast.
Broader and More Diverse Pool of Available Guardians for People with Low or No Assets
New York needs a broader and more diverse pool of available guardians, said John Holt, the Vera Institute’s Deputy Director of Legal Services.
“It’s important that we make sure that good guardianship from the enforcement end doesn’t get reduced to merely making sure that the fiduciary duties of a guardian are kept,” said Holt in remarks during the January roundtable discussion. “The quality of life aspects are critically important to good guardianship, but also the most difficult to gauge, particularly in the format of an annual report or the other metrics we currently use in New York to measure whether or not a guardian is performing adequately.”
New York State Supreme Court Judge Arthur Diamond agrees that it’s hard to get quality guardians especially for people with little to no assets. This shortage is one of the main reasons that brought the January 2018 round table discussion in the first place.
Improved Monitoring, Centralized Reporting and Data Collection
Improved monitoring is required to ensure that Article 81 of the state’s Mental Hygiene Law is being applied only to individuals who need it.
Centralized reporting and data collection would streamline the process and make it easier for prospective guardians to serve, said Callahan.
Minnesota, for instance, has a searchable statewide database and online portal where individuals can search cases and guardians/conservators can upload their inventory and annual reports.
“I don’t think we can really, fully appreciate the scope of the problem until we have better data,” Callahan also said in the podcast interview.
Compensation for Lawyers, Court Examiners and an Increase in Funding Agencies
Lawyers are refusing to accept cases because of the time involved and lack of compensation from wards with no or low income and assets, said several discussion participants. A basic guardianship can take 50 to 100 hours, by one estimate, with a commitment that can last for years, and no sanctions exist for lawyers who refuse cases.
New York also needs more support for court examiners who review the annual reports of guardians and a greater public awareness of guardianship and other options, speakers said.
There is often no money to pay for lawyers or court examiners, and the problem will reach crisis proportions unless action is taken, said New York State Supreme Court Judge Arthur Diamond, a member of the New York State Advisory Committee on Guardianship Matters.
In addition, Jean Callahan believes that there are not enough service providers and funding agencies to connect people with these services.
It would “go a long way” to fund agencies currently doing quality work, said Jean Callahan.
– By NYCEAC’s Elder Justice Dispatch Team: Risa Breckman, Cara Kenien and Nathalie Perez