By Joseph Ax
NEW YORK, Dec 3 (Reuters) - The state's system of
guardianship for incapacitated individuals is plagued by delays,
a lack of resources for poor families and periodic scandals that
underscore the need for more accountability, according to a
report released Monday.
The report, by a Cardozo School of Law clinic, has outlined
a series of recommendations to help improve the system,
including a statewide task force and increased scrutiny of
potential guardians. It also suggested that state officials
consider alternatives to guardianship that allow incapacitated
individuals more control over their own affairs while providing
the necessary support.
"Our goal is twofold: to move forward on some of the
shorter-term, simpler recommendations and then to create a
conversation about some of the bigger picture questions, like
creating an alternative to guardianship," Rebekah Diller, the
head of the Cardozo clinic, said in an interview.
Article 81 of the state's Mental Hygiene Law, passed 20
years ago, created the modern system of guardianship and remains
"a model statute" in many ways, according to the report,
"Guardianship in New York: Developing an Agenda for Change."
The statute mandates the least restrictive approach so that
an individual is only deprived of those decision-making rights
that are necessary to protect them, and courts are required to
consider alternatives. In addition, a hearing and an
investigation by a court evaluator are required, and the right
to counsel is afforded the individual.
"Notwithstanding these important reforms, noteworthy
challenges remain two decades later," the authors wrote.
The recommendations range from systemic reforms, like
instituting a statewide data management system to track cases,
to relatively small changes, like standardizing
guardianship-related forms and making them accessible online.
Perhaps most important, according to the report, is the
establishment of a statewide task force on guardianship, a move
that Missouri, Ohio and Delaware either are contemplating or
have already carried out.
"Without a standing body to identify key policy and practice
issues and to coordinate reform implementation, change is not
likely to occur," the report said.
The report also called for increased oversight of
guardianship. It cited several instances in which guardians
entrusted with the affairs of incapacitated clients stole money,
including one where a guardian took $327,000 from a retired
judge while mismanaging his estate.
Diller said there is no clear mechanism for court examiners,
who monitor guardianships, to receive input from the individuals
whose estates are under guardianship.
"There's always room for improvement of oversight," she
said. "There are always people who slipped through the cracks."
The report recommended increased training for examiners,
regular checks to determine whether a guardianship can be
terminated and better screening of potential guardians.
The clinic also suggested creating an ombudsperson and a
standardized complaint procedure and encouraged officials to
consider whether less restrictive options than guardianship
might work in certain cases.
Matthew Kiernan, special counsel to the state's chief
administrative judge, Gail Prudenti, said court officials
welcomed the report and would examine its recommendations
"If something works better, we're very happy to consider
it," said Kiernan, who has worked on guardianship issues for the
He said the report's recommendation to simplify accounting
for smaller guardianships to speed them along, for instance, was
promising. Several steps already had been taken to improve the
system, including an amendment to Article 81 that takes effect
next year and will permit judges to order extensive background
checks for guardians before they are assigned, he said.
The report consolidated recommendations from attorneys,
judges, court personnel and advocates who gathered for a Cardozo
conference on guardianship in November 2011.
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