Ohio lags nation in guardianship reform
Changes other states have made to fix problems haven’t come here — yet
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The threat was real for the 53-year-old former construction worker with heart disease and two failed kidneys. Trapped in a nursing home since an out-of-control infection in his big toe cost him his right foot and part of his leg, Hutchcraft was at the mercy of the nursing-home staff for his care.
He had no friends who could help him. No one in his family knew where he was.
Then something rare happened. A stranger came to say she was with a program that matches volunteers with people who need help managing their affairs.
“I thought she was cracked,” Hutchcraft said. “You don’t see people going out of their way to help other people.”
Diana Felice, who goes by Di, threw herself into her job as Hutchcraft’s conservator, a type of guardianship established for people who are of sound mind but need help managing their affairs because of fragile health.
Over the next six months, she visited Hutchcraft weekly, logging dozens of hours meeting with him and with the nursing-home staff to insist that he get better care.
Not satisfied with just seeing to Hutchcraft’s health needs, Felice did some Internet sleuthing and tracked down his 24-year-old daughter in Minnesota. They were reunited in April for the first time in 15 years.
“It gives you hope in life,” Hutchcraft said. “It gives you something in life to look forward to.”
Time for change
Volunteers such as Felice are an anomaly in much of Ohio.Because of national reports of widespread neglect and exploitation of the elderly, other states have rushed to enact legislation to better protect people in need of guardianship.
Meanwhile, Ohio has no standards and no statewide system. Instead, each of its 88 counties does things differently.
A yearlong Dispatch investigation found one example after another of guardians — chiefly family members and lawyers — who were ignoring their wards for months while draining their bank accounts.
Now, Franklin County Probate Judge Robert G. Montgomery, Prosecutor Ron O’Brien and Ohio Attorney General Mike DeWine have launched investigations into the actions of some central Ohio attorney-guardians.
And DeWine’s office and the FBI raided the former Mahoning County probate judge’s office and house in February as part of an ongoing investigation that includes possible misconduct involving guardianships. Mark Belinky, 61, a Democrat, resigned from the bench and surrendered his law license as part of a plea deal.
The problems are well-known to judges and to advocates, some of whom have long sought to fix what they say is a broken system. In fact, a subcommittee established by the Ohio Supreme Court has been meeting for almost eight years to develop guidelines for guardianships in the state.
After The Dispatch began asking about its work, the committee forwarded draft rules to the court in February that, if adopted, would set uniform standards for guardianships for all Ohio probate judges.
The draft rules would, for the first time, require guardians in Ohio to:
• Meet personally with their wards at least twice a year.
• Undergo a criminal-background check (but not a financial check).
• File an annual report on the health and care of the ward. (Some Ohio counties require a report only every two years.)
• Avoid conflicts of interest and not serve as a direct-care provider for the ward unless authorized by the court.
• Undergo a minimum of six hours of training before serving as a guardian for the first time and attend three hours of training per year thereafter.
The proposed rule changes fall far short of the national model. They would not stop some of the things found in the Dispatch’s investigation: a lawyer charging wards $550 to buy them Christmas presents with their own money, for example. And they would not prevent a woman from being drugged and trapped in a nursing home for nearly seven years while her assets are liquidated.
They would do little to quell the hurt and anger felt by families across the state who say their loved ones suffered in substandard nursing homes and died without dignity.
“These issues have to be looked at,” DeWine said. “What we are talking about is accountability and uniformity, statewide standards and holding someone accountable.”
Public comment sought
The Supreme Court has opened the draft rules for public comment, which means that anyone can write to the court about them. After the public-comment period ends on June 25, a subset of the subcommittee will consider incorporating comments into the rules.There’s no timeline for when they might take effect.
Steve Hanson, a senior staff member and the high court’s liaison to the subcommittee, said one reason for the years-long debate over rules was resistance from committee members, typically judges, about requirements they said would set the bar too high for guardians.
They shot down an early proposal that guardians meet personally with their wards four times a year, which was then the national standard. Judges said the rule would make it hard to find people willing to serve as guardians, so the number of visits was cut in half.
That proposed requirement did not change during almost eight years of committee debate, even though the national standard increased to 12 meetings a year.
“Two visits a year is better than no visits a year, but it’s not as good as 12 visits,” said Julia R. Nack, one of only two nationally certified master guardians in Ohio and director of the volunteer-guardian program through the Central Ohio Area Agency on Aging. “So we’ve done some compromising here, and my hope is that as we begin to reform … we will see that there are other areas that we can also take a look at.”
Franklin County Probate Judge Montgomery is one of those who fears that higher standards will leave the court without people willing to do the work, which will compound the problem he has in Columbus, where a handful of local lawyers already oversee a total of about 1,000 wards.
“As the list of requirements goes up, then the number of volunteers is going to go down,” Montgomery said.
As a member of the Supreme Court subcommittee, he questions whether the rules will result in a one-size-fits-all approach to guardianships that won’t work with the varied nature of county courts.
Montgomery said the majority of the committee recommendations are good, “but one issue is missed ... and that is, ‘How do you find suitable guardians?’ ”
Other states act
While Ohio lawmakers have left reform up to the state Supreme Court, states such as North Dakota and Indiana approved more funds for state guardianship programs last year. Tennessee lawmakers substantially changed guardianship laws there, and Nevada enacted reform, including new requirements for guardian training.In 2011, the circuit court clerk in Palm Beach County, Fla., established a guardianship-fraud unit after realizing that routine audits the office had conducted for 25 years were insufficient to protect elderly wards from exploitation. In the past three years, the fraud unit has identified $2.7 million in misspent funds and completed investigations that led to two arrests.
In all, about 24 states passed guardianship legislation last year, according to a report by the American Bar Association.
In Ohio, the Supreme Court formed its subcommittee nearly eight years ago as a first-in-the-nation interdisciplinary working group of law experts, judges, advocates and professionals in the mental-health and developmental-disabilities fields. It appeared to put Ohio on the cutting edge of guardianship reform.
Now, Ohio is one of only six states that have no publicly funded guardian of last resort. Nearly every judge, advocate and lawyer interviewed by The Dispatch said the state needs a program to provide guardianship services to people in need, rather than relying on lawyers. However, none could say how it might be funded.
Guardianship reform has gained national attention, as well, with U.S. Sen. Amy Klobuchar, D-Minn., introducing a bill last year that would allow guardianship oversight to be funded under the federal Elder Justice Act. The goal is to give states money to pay for such things as background checks for prospective guardians and technology upgrades to allow for electronic filing and monitoring of guardianship reports.
This is the second time Klobuchar has introduced the bill, but this time it passed out of committee and awaits a full Senate vote and introduction of a companion bill in the House.
In the past, elder abuse did not draw as much attention as child abuse or domestic violence. But with the growing wave of baby-boomer retirees and reports about the exploitation of senior citizens from across the country, that attitude is starting to change, she said.
“One of the problems we have, like child abuse and domestic abuse, is elder abuse has been in the shadows,” Klobuchar said. “It’s something people didn’t want to deal with. We have to get it out of the shadows.”
Volunteers needed
Although the Ohio Supreme Court’s rules are silent on the need for site visits or audits, several judges in the state said visits are the only way to ensure wards’ safety.Stark County Probate Judge Dixie Park said she has 16 community volunteers who try to meet with the 1,600-some wards under the northeastern Ohio court’s care every year. They can’t see everyone, but Park also sends a court investigator and her bailiff to visit wards who haven’t been seen for a while.
Park, chairwoman of the Supreme Court’s subcommittee, said the visitors evaluate whether guardians are properly caring for their wards. She told of a woman whose guardian — the woman’s daughter — was neglecting her and said the court never would have known if not for the volunteer who stopped at the woman’s house.
Unlike most other probate judges in Ohio, Park has adopted the national standards as local rules in her court.
For example, she requires that guardians visit their wards at least once a month and that no guardian serve more than 35 wards. One Franklin County attorney guardian has more than 400.
Trumbull County Probate Judge Thomas A. Swift said that his northeastern Ohio court’s guardianship program runs on volunteers.
It took him years to realize how important volunteers were to making guardianships work, he said, but he began building up his volunteer base about two decades ago. Swift now has one of the largest volunteer pools — about 50 people — of any probate court in the state.
He has both court-appointed volunteer guardians and a volunteer-visitor program that he calls “guardian angels.”
“They’re going out there and bringing us the information we need,” Swift said. “You don’t get the same feedback from the legally appointed guardians.”
But volunteer programs require constant work to keep running. Swift still personally recruits volunteers, often traveling to community meetings and even retirement parties at local businesses.
Nack, the master guardian who oversees the program that brought Felice and Hutchcraft together, said Felice is a perfect example of how the 100 or so volunteers in the Franklin County program do more than is asked of them.
“We’ve been doing guardianship for 20 years with volunteers, and they are amazing,” Nack said.
Felice, who works for a nonprofit group that helps senior citizens manage their finances, said she heard about Nack’s program from a co-worker. As a former employee at the Ohio State School for the Blind, she said she feels called to help others.
“I’m really familiar with being an advocate and assisting people who need support, an extra voice,” Felice said. “I was missing that type of interaction.”
New program sought
In Franklin County, aside from Nack’s program, there are no other court-recruited volunteers who serve as guardians or visit wards on the court’s behalf.Judge Montgomery, who has said that the system of attorney-guardians his court uses is not working, said he thinks he has a better idea.
What Montgomery proposed to the legislature is a three-person board, with the members appointed by him and the county’s Alcohol, Drug and Mental Health Board and Board of Developmental Disabilities, both of which have pledged funding. This group would then hire an executive director to serve as the guardian for the county’s indigent wards.
That director would hire staff members and interns — Montgomery envisions a partnership with the College of Social Work at Ohio State University — who would serve as deputy guardians. With most of the employees trained as social workers, Montgomery said, it would move the county to a social-services-based model of guardianship and away from a lawyer-based system.
“We want to be a model that we can point to and say, ‘Look, we have a better way of doing this,’ ” Montgomery said.
The judge said he believes that such a system could lead to better outcomes for the people under the court’s supervision.
It could lead to situations such as the one Jim Hutchcraft now finds himself in — waiting for his daughter to return from Minnesota, this time to stay.
Nancy Hutchcraft said she plans to move to Columbus soon to take care of her father.
“We don’t know how much time we have left together,” she said.
Mr. Hutchcraft said what has happened to him since Felice entered his life is just short of a miracle.
“People like me — people like us in these places that don’t have family, or have family that don’t care — you feel alone,” Hutchcraft said.
“You’re empty, you’re alone, you’re hopeless. And having her gives you hope.”
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