LANSING — Glaring deficiencies in the state’s guardianship system were detailed in a Michigan House Judiciary Committee hearing, where state Attorney General Dana Nessel and others gave testimony on proposed reforms.
“We should be ashamed at how we treat the elderly in this state,” Nessel said Tuesday, appearing alongside select members of her Elder Abuse Task Force. “This package of bills is not just a good idea. It is quite simply a moral imperative.”
Elderly and disabled residents have been assigned guardians without their knowledge, probate court judges have selected professional guardians and conservators to manage a vulnerable adults’ affairs instead of assigning a qualified family member, and once in the system it can take months for a person to extricate themselves from unnecessary oversight, Nessel said.
Examples of systemic oversight deficiencies have emerged statewide.
For example, in 2017 a Leelanau County probate judge granted an emergency petition to have a professional guardian appointed for Martha Rothaug, over objections from her daughter, Jen Rodgers. The appointment occurred despite Rothaug’s earlier move to grant Rodgers power of attorney and patient advocate status.
Rothaug was moved out of her home in Suttons Bay to first one then another assisted living facility, without Rodgers knowledge or permission, court documents show.
The AG’s office is reviewing the case, documents show.
And in 2020, an Emmet County probate judge appointed a professional guardian for George Pappas, a 95-year-old World War II veteran of Harbor Springs, after he said he needed help getting his car fixed and doing some simple bookkeeping.
Elise Page, who court and police records show made withdrawals of cash from Pappas’ bank account and used a bank card from his account to pay for purchases at Victoria’s Secret, fast food restaurants and a vape store. Earlier this year Page was arraigned on fraud charges and pleaded guilty to embezzlement.
A sentencing hearing is scheduled for July 2 in 57th Circuit Court, records show.
“It sounds like a Netflix drama, doesn’t it?” Nessel said. “But it’s not. It’s something that has happened right here in Michigan.”
National controversies over high-profile cases involving celebrities — singer Britney Spears, actor Amanda Bynes and disc jockey Casey Kasim have each had court-appointed guardians, conservators or both — have brought new awareness to a system advocates in Michigan have been trying to reform, with little success, for decades.
In 1990, after a national study of 22 states found guardianship petitions filed in Michigan far exceeded other states, the State Bar’s Elderly Law and Advocacy section asked the Michigan Supreme Court to create a task force on guardianships and conservatorships.
It took six years, but in November 1996, the court appointed probate judges, probate court registers, lawyers and professors to a 25-member Task Force on Guardianships and Conservatorships. The group was to “examine how the judiciary, legislature, and executive branch agencies can better protect the interests of those for whom guardianship is sought.”
About two years later, 11 recommendations were unanimously adopted, records show, and resulted in minor legislative amendments to the Estates and Protected Individuals Code, officials said.
In 2005, then-Gov. Jennifer Granholm created an Elder Abuse and Neglect Task Force, appointing 15 attorneys, law enforcement officers, insurance administrators and finance experts who, a year later, issued a report.
“In the case of guardians and conservators, standards need to be implemented,” the report stated, though few specifics were identified in the 53-page document and the legislature took no action on even minimum standards or basic certification.
Nessel created her Elder Abuse Task Force in 2019 and the proposed legislation, which Committee Chair Graham Filler (R-Dewitt) said was a “starting point,” is at least partially the result of information gathered by task force members during the past two years, she said.
If passed, the new legislation would add certification requirements to professional guardians and conservators, change the timeline of mandatory visits from quarterly to monthly, require probate court judges to provide written justification whenever a professional guardian instead of a family member is appointed, among other reforms.
But not everyone supports the changes.
Filler said further hearings on the proposed legislation will be scheduled throughout the summer and into the fall and reported that members of the Michigan Guardianship Association had both stated their opposition to the bills and asked to testify at a later date.
Lake County Public Administrator Nathan Piwowarski offered no opinion on the proposed legislation, but said he observed “frankly troubling” variations in how guardianship and conservatorship cases were handled from one probate court judge to another.
“Taken as whole, elders’ legal rights vary depending largely on the accident of where they live or where the petition was filed,” Piwowarski said.
Nicole Shannon, an attorney testifying on behalf of the Michigan Elder Justice Initiative, agreed.
“I’ve been doing these cases since before the ink was dry on my bar card,” Shannon told the committee. “The problem we keep coming back to is it really depends on whose courtroom you are in and that individual judge’s opinion of what (guardianship) looks like.”
Guardians and conservators are appointed when a probate court judge determines a person no longer can handle their personal affairs, whether because of age, illness or physical or mental disability.
Guardians generally are in charge of medical and hosting decisions, while conservators handle financial decisions though some probate court judges assign both tasks to guardians.
Probate court judges have participated in task force committees, said St. Clair Probate Court Judge John Tomlinson, president-elect of the Michigan Probate Judges Association.
The MPJA, which counts “nearly 100 percent” of the state’s probate court judges among its members, supports reforms in theory, Tomlinson said. He went on to criticize certain reforms as “problematic” that would “clog up the system.”
For example, the proposed legislation would require courts to set a second hearing date if there are objections at the initial hearing — a provision aimed at protecting vulnerable adults and their families from unnecessary appointments, but which Tomlinson took issue with.
“Requiring us to set matters for a second hearing would simply clog our dockets and prolong these situations for everybody concerned,” Tomlinson said.
Securing the support of probate court judges in the implementation of any passed reforms was one thing several speakers, both members of the committee and among those testifying, agreed on.
Rep Doug Wozniak (R-Shelby Township) suggested a certification process for judges. In 2019 he recommended his constituents protect themselves with legal documents naming a patient advocate and a power of attorney, rather than risk a court appointment.
“I can see where you’re going, to have the guardians and conservators (be certified) but so many times I see the judge make up his own rules as he goes along, opposite of statute,” Wozniak said. “So, if I had a comment on this, a question, what can we do with the judges to make sure that this program succeeds because without them, it doesn’t go anywhere.”
“I think you hit the nail on the head,” said Katharyn Barron, an assistant attorney general and chair of the task force.