Guardianship reform set to pass state Legislature, sponsors say

This is how it starts: An aging mother slides into dementia. Her adult children face mounting medical costs and difficult choices. They descend into bitter arguments over how to care for her. The siblings hurl accusations of mishandled money and abuse. Suddenly, the state court steps in and deems the children unfit to care for her – and declares the mother incapable of caring for herself. 

In a matter of weeks, the court appoints an independent guardian. This person can control the mother’s life, finances and even medical decisions. The family has no control, no right to visit and no right to know what is happening with their mother. Under current New York law, her assets could be sold off, she could be removed from her home, placed in a nursing home, die, be cremated and buried – all without notifying the family.  

If this scenario sounds like a nightmare, advocates of guardianship reform say it can be reality.

“These guardians are given total control over people who … are incompetent to defend themselves. And nobody is watching,” said Elaine Renoire, president of the National Association to Stop Guardianship Abuse.

But advocates like Renoire are hopeful that changes are coming soon.

As New York’s legislators rush to pass their bills before the end of the session, advocates say they aim to send a reform bill through both state Assembly and Senate before the last legislative session day on June 16, amending guardianship law to provide notice and visitation rights to family members.

"I was really taken aback by the idea that somebody would be buried and their children wouldn't even have notice of the burial,” said Assemblyman William Magnarelli, a sponsor for the bill. “To me, you should at least be able to pay your last respects to your mother or father.”

While Renoire is careful to note that “most guardianship is working how it is supposed to,” reports of mismanagement, neglect and fraud by guardians have made it clear that there is a need for reform. “We still don’t know what the percentage (of abuse) is, but one guardian can do a lot of damage,” she said.

The National Center for State Courts estimates that there are between one and three million adults in guardianship nationwide. Despite courts’ duties to keep careful tabs on guardians, a lack of funding and outdated court filing systems has resulted in spotty record keeping – leaving the door open for malfeasance, said NCSC lead researcher Brenda Uekert.

Advocates for reform say major flaws in the state legal system block some families from visiting their elderly loved ones. Aging New Yorkers deemed “incapacitated persons” by the court can be placed into the form of protective custody known as guardianship, which gives the guardian control over that person’s life and finances with the express purpose of protecting them. While guardians are required to file periodic accounts of their actions to the court, in practice, experts and reform advocates say, there is very little oversight or accountability.

There are two bills proposing to reform guardianship in the state Legislature at the moment. In a curious coincidence, each is backed by a daughter of a different American entertainment icon: Catherine Falk is advocating for “Peter Falk’s law,” named for her father, best known for his long-running television role as detective Columbo; and Kerri Kasem is advocating for the “Kasem Cares law,” named for her father Casey Kasem, the signature voice of music radio countdown programs for decades. Both women found themselves barred from visiting their elderly fathers due to restrictions they hope guardianship reform will remove.

The Falk bill (A3461/S5154) is the last best hope for guardianship reform this session, as the Kasem bill would not be read before the summer recess, Kerri Kasem and a legislative staffer confirmed. Legislators expressed confidence that the Falk bill will win the votes it needs this month.

State Sen. John A. DeFrancisco, the bill’s sponsor in the upper house, is bullish on its prospects of passing soon. “I think it's going to pass,” he said. “We're working on which bills get on the floor and I can't imagine that this will not.”

Magnarelli, the bill’s sponsor in the lower house, hedged when asked about advocates’ predictions that the Falk bill could pass this week: “Yeah! Could be this week,” he said buoyantly. “Exactly when that bill goes up to the governor? It could be December,” he chuckled, before adding: “I am hopeful it will pass both houses in the next two weeks.”

The bill adds language to New York guardianship law clarifying that family members should be able to visit the their loved one, be notified of any transfer into a medical facility, and be notified of their death, funeral arrangements and burial.

"Basically, it's a bill for wards who are in guardianship and they are being isolated and have terrible restrictions,” Catherine Falk explained. “When a guardian is not allowing a loved one to see a family friend or any kind of relative, this bill says that the guardian has to have a court order to justify withholding that. They can't just isolate them.”

As Falk’s father slipped into Alzheimer’s later in life, her stepmother refused to allow her and her sister to see her father or attend his funeral by using her power of attorney. And by requesting to visit their father in probate court, Falk faced the prospect that her stepmother might become her father’s guardian and cut off visitation entirely. As it turned out, Falk was excluded from her father’s funeral.

Had “Peter Falk’s Law” been in place in California at that time, Catherine Falk would not have had to battle her father’s guardian to visit him in the last months of his life. Now she advocates for reform around the country.

“This bill is a baby step,” Falk said. “A small step toward mankind respecting the fact that wards in these type of guardianships do have rights and should have their rights preserved and respected.”

But broader changes are still needed, she said.

”We really need to focus on wards already in guardianships because they don't have a voice. To focus on people outside of guardianships is really a catch-22,” Falk said. “We’re just adding more victims in the guardianship system that really needs to get fixed. We are basically just dragging people into probate court with all sorts of family issues."

While guardianship reform advocates like Falk have visions of sweeping change across the country, the New York bill’s sponsors takes a more measured view.

Guardianship is not in need of an overhaul, Magnarelli said, and the Falk bill will simply mend a hole in the current guardianship law. “I think New York state is out in front on this,” he said, noting that the state’s guardianship laws were already revamped in the last decade.

“It's a good victory,” Magnarelli said. “Not a huge victory. I think we've done what we set out to do, which is, children will be able to pay their respects to their parents who have died and they will also be considered to have notice and visitation rights at the onset of any guardianship proceeding. So, I think those are very good results."

Backers of the Falk bill said they hope to see it pass this week. After that, its fate is in Gov. Andrew Cuomo’s hands.

Asked if he predicted any resistance from the governor, DeFrancisco said he was unsure. “He’s very unpredictable,” he said, adding, “I can't imagine a veto would be in the offing.”