Case can be made to improve obscure but critical legal process

Friday, July 23, 2004 | 4:53 a.m.

WEEKEND EDITION

July 24 - 25, 2004

When he was diagnosed, he didn't know his age, the president of the United States, the season, the city he lived in, his medical condition or any medications he was supposed to have. All he owned was a bank account with $2,488.

Court records indicate that the couple gave $1.19 million over the past year to a man they believed to be their financial adviser. The man allegedly invested $200,000 of the couple's money with his own relatives.

A doctor who diagnosed her in May as having dementia and a mood disorder, stated in a court document: "She does not seem to be receptive to rationalization. The patient does not want to understand her situation. Definitely the patient needs help as the patient already (has) been in 10 group homes and nobody seemed to tolerate her behavior."

Adnan, cane in hand, didn't want to be sitting in a courtroom, having to explain to the woman in the black robe why he could take care of himself.

Two weeks ago in Clark County Family Court, the slightly built 74-year-old man had his pride on the line. He told the court he once ran a successful nursery in Kansas, then moved to Las Vegas, where his company landscaped more than 2,500 homes.

He also announced to all in attendance that he had earned seven degrees from seven different universities.

But because Adnan suffered a brain injury from a car accident in April that left him with mild dementia, there were lingering questions about his competency to handle financial matters involving his dormant landscaping company.

That was why he was having to defend himself from becoming a ward of the Clark County Public Guardian's office -- the guardian of last resort. The guardianship request from his three children from a previous marriage, who claimed his wife was dividing the family, clearly irritated him.

"I can take care of myself and I've done real well so far," Adnan told the court. "I don't want somebody who knows nothing telling me something they know nothing about. I'm very well educated. I know what I'm doing and I'm excellent at it."

And what of his memory lapses following the accident?

"All human beings forget things," he said. "You cannot remember 100 percent of everything you have done."

After some convincing from Adnan's attorney, presiding Guardianship Commissioner Jennifer Henry appointed Adnan's wife to be his guardian while reserving the court's right to monitor his finances.

The adult guardianship process is one of the most obscure legal proceedings in Clark County, one that rarely generates publicity unless there is an extreme case that attracts the media. Yet it is one of the most powerful -- a system that can deem individuals to be incompetent to handle their own affairs and strip them of their civil rights based on the recommendation of a single doctor or government agency.

This is often done against the person's will or knowledge. And the money that pays for individuals to be determined incompetent and become wards of the court often comes out of their own pockets, unless they are indigent, in which case the money comes from taxpayers.

All it takes for a guardian to be appointed in Family Court is a five- or six-page petition stating basic facts about the prospective ward and guardian, an inventory of the prospective ward's assets, a recommendation from a single doctor or government agency and notification of known relatives and the prospective ward himself. If there are no objections from the prospective ward or from relatives, the legal process normally takes less than a month to complete.

Guardianship is a world that involves an invisible referral network of social workers, nursing homes, hospitals and attorneys. The major players in the guardianship system all know one another. Some even sit on a task force that meets monthly to figure out how to improve the system.

"At least there is a safety net so that people aren't exploited," task force member Peter Frenette, who operates a Las Vegas guardianship company, said of the guardianship system.

"You don't want to slam guardianship because otherwise people will go underground and use powers of attorney. Once they get these powers of attorney over someone who didn't have the capacity to sign it, they manipulate the vulnerable person."

A Las Vegas Sun investigation found that the task force has a tall order to fill to achieve reliability in the guardianship system. The system in Clark County is bursting at the seams, overwhelmed by a growing caseload that reflects a mushrooming community of senior citizens who are getting older and sicker, combined with court staffing and resources that are wafer-thin.

Consider the following:

Nevada is not alone. The federal Government Accountability Office, in a report on adult guardianships released Thursday to the U.S. Senate Special Committee on Aging, found that "fewer than half of the states require the courts to review reports guardians have submitted to them."

The flaws with the guardianship system in Clark County are bound to become increasingly apparent as the valley attracts more retirees. The 32,000 county residents with Alzheimer's disease -- a leading reason individuals become wards -- is expected to double by 2010, Las Vegas elder law attorney James O'Reilly said.

"We have large groups of older people living in isolation," O'Reilly said. "We haven't seen the critical mass yet, but we will. What you have here is a recipe for disaster. We now have about as many people over age 55 as under age 15. So this is going to trigger demand for more health care."

Judy, 74, survived a horrific childhood in Nazi-occupied Hungary during World War II, then fled her country during the communist takeover in the 1950s and wound up in California. She spent 40 years there as a registered nurse before deciding four years ago to retire to Las Vegas, where she purchased a one-bedroom condominium.

But her life was turned upside down again when Clark County Senior Citizens Protective Services responded to a neighbor's call of concern over Judy's well-being. They found her residence to be a mess, with boxes of her belongings creating narrow paths in her hallways.

Considering her experience in Europe, Judy was not receptive to the intrusion into her life. It was against her will that she was seen by one doctor, who found in April that she had borderline dementia and paranoid disorder, and then was admitted, again against her will, to Valley Hospital Medical Center in May. There another physician confirmed the original diagnosis and recommended she be placed in a group home.

A social services worker referred the case to Frenette's company, Nevada Care Management Inc., which applied for guardianship.

"The petitioner is informed and believes that the proposed ward is in need of assistance in obtaining medical assistance as the ward is residing in her home with no working toilet, air-conditioning system that does not work, is living in debris stacked above the average adults' height and was found stuck in a Dumpster searching for food," Nevada Care wrote in its petition to the court.

Judy was not present in court when Nevada Care was appointed to be her temporary guardian. And she also didn't have an attorney present to represent her because she never requested one. Last month Judy was transferred, over her objection, to the lock-down unit of a Las Vegas group home for sufferers of Alzheimer's disease or dementia.

There are 16 states that require courts to appoint attorneys to represent wards in all proceedings leading up to guardianship, according to the American Bar Association. Five other states require wards to be represented under certain circumstances.

Nevada, though, is not one of those states. Under Nevada law, a prospective ward has a right to be represented by counsel but must request an attorney if he cannot afford one. Because of this many wards go without representation because they don't request counsel, often because they didn't know they could or should.

"You're kidding," was the reaction from Peter Santini, president-elect of the National Guardianship Association of Tuscon, Ariz., an advocacy group whose 630 private and public guardian members go through certification.

Santini, chief investigator for the public fiduciary's office in Tuscon's Pima County, said all wards in his state have legal representation.

"If the ward is indigent, it comes out of county funds," Santini said. "It's important that everyone gets legal counsel, not only those who can afford to pay for it. It's important to protect human rights."

Under Nevada law the court may approach legal aid agencies to provide attorneys for indigent prospective wards. But Nevada Legal Services does not handle guardianships and Clark County Legal Services only does so on rare occasions because of lack of resources.

Worthwhile

Still, Kendal Sue Bird, senior attorney for Clark County Legal Services, said mandatory legal representation for all wards would be worthwhile for Nevada to pursue.

"I'd like to see it be a meaningful hearing where you have a private conference with an attorney before you show up at the first hearing and they take all your rights away," Bird said.

"Our standards to establish guardianship are less than they are for child custody. Just because an adult needs help doesn't mean they can't make other decisions for themselves. We have a right to be frail. Are we going to take away all of their civil rights just to take them to the doctor? Right now, guardianship is all or nothing."

The problem is that cash-strapped county and state governments have not come up with a way to pay for court-appointed attorneys to represent prospective wards.

"Attorneys provide that service for free, but there is not a large pool of attorneys here who do that work," Las Vegas attorney Dara Goldsmith, a guardianship specialist, said.

Henry, who co-wrote legislation last year that revamped state guardianship law to make the process less cumbersome for everyone involved, said she believes every prospective ward should have an attorney.

But she said she was told by sources involved in the legislative process that there would be no way to get the Nevada Legislature to support a provision that mandated attorneys for all wards.

"We were told in no uncertain terms that there was no money for that," Henry said.

There are those who argue that it is not necessary to have attorneys representing all wards, because in many cases it is obvious that a guardianship is needed.

"I can show you case after case that dragged on because an attorney got hold of a person," private guardian Jared Shafer, former Clark County public administrator, said.

Investigating petitions

Last month Family Court Judge Robert Lueck had to decide whether Evelyn, an 82-year-old mother of five children who has dementia and became a ward of the county public guardian against her will in 2002, should stay in a group home or be returned to her unemployed son in Henderson.

The question for Lueck was whether the son, an alcoholic and ex-felon according to court records, was better equipped to take care of his mother.

On two occasions, public guardian case managers needed a police escort to enter the home because the son would not cooperate with the investigation. The son also fell behind on utility bills, disagreed with a doctor's recommendation that Evelyn take particular medication, and allegedly made threats to Evelyn's other children to dissuade them from getting involved in his battle with the public guardian.

Evelyn was taken out of the Henderson home under court order, returned to her home and taken away again. During this process the public defender caught flak for overcharging the woman's estate for attorney's fees and for an emergency delivery of medicine, costs that were reduced by the court.

But Las Vegas attorney Bradley Richardson, who was appointed by the court to independently investigate the case, told Lueck he didn't think Evelyn would receive proper care if returned to her son.

Lueck then ruled that Evelyn should remain in the group home as a ward of the public guardian, a decision made easier by the fact that the son's own attorney begged off the case because of the son's belligerent attitude. There were even questions as to whether the son, who did not show up for the court hearing, was still in town.

"This is a classic case of alcoholism and possible depression," Lueck said of the son. "If you have determined he has abandoned the home, you have the authority to change the locks."

In the cases of both Evelyn and Judy, an investigator or guardian ad litem -- an attorney who is supposed to look out for the ward's best interests even if the ward disagrees -- was appointed by the court to investigate their situations because the wards in both cases objected to the guardianship. Judy's case remains under investigation.

No requirements

But Nevada is not one of the 15 states that require a guardian ad litem or other type of investigator to determine whether the request for guardianship has merit in each case. In Nevada, such appointments are made on a case by case basis, something that troubles Las Vegas attorney Jack Fields, who specializes in guardianships.

"I would certainly prefer an investigator or guardian ad litem in each case because guardianship is so intrusive and overbearing on people's lives," he said. "It should be someone who is independent, a pair of neutral eyes."

As in the case with the lack of mandated attorneys for all prospective wards, Family Court does not have the money to hire investigators.

"The more sets of eyes over the life of the case the better the process will be," Henry said. "But not every case needs an investigator."

Lueck agreed, stating: "The average case doesn't have any controversy."

The public guardian's office once investigated cases, even though it was not mandated by law to do so. But six months ago it dropped that service to quell public perceptions that it was too cozy with Family Court.

"This added incredible strain and stress on my staff," Clark County Public Guardian Kathleen Buchanan said. "The court will have to get their own person. The court system needs to have an investigator, someone who is trained with the proper background."

Without its own investigator, Family Court has been forced to turn to local attorneys for help. In the vast majority of cases, the lawyers are doing that work at no charge. But they, too, are stretched thin and only a small percentage of petitions get investigated.

Noel Palmer Simpson, who works with Fields and is licensed to practice law in New York, said it is much more difficult to get guardianship in that state because the proceedings are as elaborate as those in personal injury cases.

New York is one of the states that require a court-appointed evaluator in each case, a person who interviews the guardianship petitioner and the prospective ward and then testifies at the hearing.

"It's certainly easier to get a guardianship here than in other states," Fields said. "In New York, you have to go through a full-blown trial in order to become a guardian."

Monitoring

State law requires guardians who have control of a ward's estate to file annual accountings of those finances with the court when the assets exceed $5,000. But a random check of court files that were more than a year old turned up many cases where a guardian was appointed but no annual accounting was ever submitted.

Part of the problem is that the court's computer system is not able to alert commissioner Henry's department when an accounting isn't filed and she doesn't have the time or staff to review open cases on an ongoing basis. The only way the court finds out that an accounting hasn't been filed is when a dispute crops up involving the guardianship.

It was one of the issues Henry raised in a scathing assessment of the guardianship workload that was distributed to the county's judges earlier this year.

"Unfortunately, due to guardian omission, whether negligent or purposeful, the majority of these cases which are mandated by the Nevada Revised Statutes to be reviewed on an annual basis are not," Henry wrote in her summary. "The result: the most vulnerable and fragile sectors of our population -- the elderly and children -- are not getting the attention and oversight to which they are entitled."

Henry is a court appointee who presides over most of the county's guardianship cases. She handles about 50 cases a week at Wednesday morning adult guardianship hearings, operating in workmanlike fashion.

All of her recommendations at hearings must be approved by Lueck, the court's presiding adult guardianship judge. Lueck hears only one or two adult guardianship cases a month -- usually they are either the result of an objection to Henry's recommendation or her recusal from the case.

Two years ago Henry and her secretary selected open case files at random in an effort to find guardians who had not complied with the annual accounting requirement. The effort was largely futile.

When they attempted to contact some of those guardians, the mailed notices were returned as undeliverable -- meaning the court did not have an updated address for the guardians -- and others failed to show up for scheduled court hearings to have their cases reviewed.

The GAO, in its investigation, found that many states require courts to take action against guardians when reports are not filed on time.

"In Texas, if a guardian of the person fails to file a report or a guardian of the estate fails to file an annual accounting, the guardianship appointment expires," the GAO stated.

More funding

Last month the county approved funding to hire a compliance officer whose job will be to comb through guardianship files to make sure they are complete. Anyone who hasn't filed his annual accounting will be notified to do so.

But it's a tall task, given the fact the guardianship department had 7,689 open cases as of Dec. 31. It is feared by the court that some files have gone unchecked for 20 years.

Insufficient monitoring creates the possibility that wards are being exploited without the court's awareness. The Nevada Division of Aging Services reported 310 alleged cases where senior citizens were exploited in Clark County from July 1, 2002, through June 30, 2003. Of those cases, only 88 were substantiated by law enforcement and other authorities.

But Deanna Taha, supervisor of Clark County Senior Citizens Protective Services, said she believes exploitation, abuse and neglect of seniors are all under-reported. And the statistics do not reveal the number, if any, of guardians who were the perpetrators.

Another problem is that Taha's office, which is charged with investigating allegations of elder abuse, neglect and exploitation, has had the same number of social workers -- six -- that it had 10 years ago despite sharp increases in caseloads. The 998 cases her office handled last fiscal year was 30 percent higher than the 766 cases logged in fiscal 2001.

Family Court handled 1,297 new guardianship petitions last year, compared to only 688 in 1994. As much as the county's population has exploded, it is nothing compared to guardianship filings over the past 10 years. The filings have increased by 32 percent more than the rate of growth while the court staff to handle these cases has remained static.

"It's no secret here that all the courts in Clark County are inundated," Lueck said. "This population increase of 60,000 to 80,000 a year has had a huge impact."

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