Nevada hurt by lack of guardianship laws

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

WEEKEND EDITION

July 24 - 25, 2004

Betty once had her name on a Strip marquee as lead singer in a stage production and tidbits about her European chart-topping career can still be found on Web sites dedicated to music.

The petite 65-year-old German native, who grew up in a prominent circus family, eased into retirement. Betty (not her real name) purchased a modest country club home in Las Vegas that enabled her to golf on a regular basis. Then the unthinkable occurred.

A young woman who passed herself off as Betty's friend convinced the former entertainer to sign over power of attorney as her health began to fail her.

Betty signed the power of attorney just five days before she was admitted to University Medical Center, where she was diagnosed as having dementia.

The so-called friend wound up selling Betty's home for $420,000 and planned to use the proceeds to buy two other homes in the valley.

When the 33-year-old woman applied in April to become Betty's court-appointed guardian, two of Betty's nephews, who live in France, smelled a rat and filed a counter motion.

The nephews hired professional guardian Nevada Care Management Inc. of Las Vegas to serve with them as co-guardians.

The nephews' motion was granted last month by Clark County Family Court after an independent investigation determined that the young woman was not suited to be Betty's guardian.

Because Nevada law requires wards to have at least one guardian living in this state, the nephews turned to Nevada Care for help. The new company, incorporated in February, is one of only six professional guardians that deal with the court.

As Las Vegas continues to attract more retirees -- many with considerable wealth but no local relatives to care for them -- those familiar with the county's guardianship system expect the professional guardianship industry to grow here exponentially because of the money to be made. That money comes from managing the wards' estates and supervising their living arrangements and medical care.

The problem, according to some elder advocates, is that there are no certification requirements or law enforcement background checks in Nevada for professional guardians.

Sally Ramm, a gubernatorial appointee who serves as the state's elder rights attorney, said she would like the Nevada Legislature next year to change that by requiring some form of state certification for the professionals. And she said she would also like lawmakers to look at the fees charged by those guardians.

"We have a workup group of elder advocates and attorneys who are looking at this," Ramm said. "These guardians are governed by reputation but it's a growing industry and I hear there are more who will be moving to Nevada."

Arizona is believed to have the nation's most advanced certification system for private guardians, one that is run by its Supreme Court and includes law enforcement background checks.

Washington, Florida, Texas and California also have various levels of certification or registration. California, for instance, operates a fingerprint registry for private guardians.

The nonprofit National Guardianship Foundation believes all private guardians should be certified.

"It is an indication that a person has demonstrated in a written exam that they appreciate the core knowledge that the person serving as a guardian is supposed to have," Sally Hurme, foundation chairwoman of Washington, D.C., said.

Peter Frenette, who operates Nevada Care, said he would have no problem going through certification. As the operator of a similar company in Arizona he has already gone through that state's certification process and background check.

"I don't see any harm in it," Frenette said. "It's just a way to keep the industry copacetic.

"The flip side is people go underground. We have to be careful about how to regulate so people don't find a way around it."

Another professional guardian, Jared Shafer of Las Vegas, also supports registration for private guardians. But Shafer, the former Clark County public administrator whose duties included running the public guardian's office, said registration should be handled by Nevada courts, similar to what occurs in Arizona.

"If I'm going to charge strangers for my services, you better believe I need to be registered and background checked and fingerprinted," Shafer said. "That will keep a lot of the screwballs out of town."

Most court-appointed guardians are related to the wards. If a competent family member who lives in Nevada wants to become a guardian, this is always the preference of the court.

The nastiest guardianship battles usually involve family feuds, as in the case of 81-year-old Leola, a mother of nine children who was diagnosed with dementia. Her granddaughter wanted to be her guardian and continue to care for her at home.

"My grandmother has resided in my home for the past year with little contact from her children at their request," the granddaughter wrote in her application for guardianship. "Now her kids just want to come in her life and put her in the nursing home against her will because they now say they don't like me."

Two of Leola's daughters filed a counter co-guardian petition, claiming the elderly woman was constantly in and out of hospitals. They also alleged that the granddaughter had mental health problems and was not fit to be the care giver.

When Leola was transferred to a nursing home during the guardianship dispute, the granddaughter went to visit but was escorted from the facility by police after she allegedly videotaped the staff and became belligerent after being told to stop. The nursing home immediately issued a no trespass edict against the granddaughter.

A case manager from the Clark County Public Guardian's office brought in by the court to investigate the dispute also found that the granddaughter had commingled Leola's money with her own, causing Leola to fall behind on her nursing home payments.

With the majority of Leola's family wanting the two daughters to become her co-guardians, the court granted that wish in April and also ordered the granddaughter to repay $1,753 to Leola's estate.

But competent relatives often aren't available to serve as guardians.

"Our most difficult cases involve difficult family situations," Las Vegas attorney Elyse Tyrell, a guardianship specialist, said. "It could be that the child has been over-babied. We see a lot of cases where a 40- or 50-year-old man is still trying to live on their mother's income. Guardianship is not a terrible prospect unless you have terrible children."

One professional, Gerri Tussing of Las Vegas, specializes in cases where a ward's bank accounts and other assets must be made accessible to someone else in order for the ward to become Medicaid-eligible for long-term care. Tussing obtains special guardianships in order to get that access, enabling her to obtain Medicaid for clients such as Kenneth.

An easy-going Massachusetts native, Kenneth, 90, joined the Army Air Corps in World War II and served as an elected town board member in his home state. A career plumber, he moved to Las Vegas in 1968 and led a quiet life once he retired.

But after he was diagnosed with psychosis, renal insufficiency and hypertension and admitted to a nursing home, he fell $60,000 behind on his payments. The problem for the facility was that it had no legal authority to access his financial records in order to apply for Medicaid on his behalf. Enter Tussing, who was able to obtain that access with the court's permission.

When suitable relatives are unavailable to serve, professional guardians fill part of that void in exchange for fees that come from the wards' assets, including the sale of their homes, when necessary, to finance their long-term care. In Nevada Care's case, those fees can amount to $65 to $125 an hour, depending on the staff professional the company uses to handle a certain aspect of the ward's care.

Those charges are on top of the $1,500 to $5,000 it typically costs in attorneys' fees just to shepherd the garden-variety guardianship petition through court.

In at least 90 percent of the cases, those fees will also be charged to the ward's estate. And the legal fees can escalate rapidly when the case gets more complex, as when an objection is raised by the prospective ward or a relative.

The private guardians, who generate their business through referrals from social workers, hospitals, nursing homes and attorneys, usually won't get involved in a case unless the ward has substantial assets, there are no relatives who will contest the guardianship, or there are relatives who live out of state who need a professional in Nevada to be a co-guardian.

Frenette said private guardians tend to take cases that are not difficult to handle.

"But there are still conflicts with family members because you're spending their inheritance, they believe," he said.

One concern Clark County Public Guardian Kathleen Buchanan has is that her office will get stuck with a ward if a professional guardian obtains the court's permission to withdraw from a case.

"It should be of concern to taxpayers because ultimately the taxpayers will have to finance the wards when the private guardians no longer want to serve them," Buchanan said.

Under state law the public guardian must take the cases nobody else will handle. Like private guardians, the public guardian's office can also charge the ward's estate for its services. Those fees, such as $175 an hour for Buchanan, $90 an hour for case management supervision and $70 an hour to handle matters involving a ward's estate, are deposited into the county's general fund.

But about 80 percent of the county's adult wards are indigent, and the services needed to oversee their care come out of the public guardian's budget, which is $2 million this year.

Someone from her staff meets with the wards at least monthly to make sure their needs are being met. Of the 538 cases she oversees, 329 involve wards who are at least 60 years old.

"In most of the cases the wards have nobody but us until they die, and then out of the blue someone will call and say, 'Did my mom leave me an inheritance?"' Buchanan said. "We get that all the time."

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