Guardianship
Below is an excerpt from the Maine Coalition for Housing and Quality Services minutes from the 5/14/2012 meeting, which included a presentation on guardianship from Maine Adult Guardianship Services (which has since closed). Some links to resources have been changed, updated, or removed to ensure that the most recent information is included below:
Maine Coalition for Housing and Quality Services
May 14, 2012
Guest speaker: Vanessa Pelzer Bell, Maine Adult Guardianship Services
Adult Guardianship
Vanessa Pelzer Bell founded Maine Adult Guardianship Services, LLC to offer Mainers an alternative to public and private guardianships. Vanessa served as public guardian for adults with developmental disabilities, then advocated for policy and systemic changes at the state and national level as a project director at the University of Southern Maine, Muskie School of Public Service (biographic information courtesy of Maine Adult Guardianship). Through her work in direct care and case management, Vanessa discovered no one could tell her exactly what guardianship was, nor agree on what it really meant. Not wanting anyone to lose their rights unnecessarily, and to eradicate the many misconceptions about guardianship, she began working to improve the situation.
Synopsis: Some of the misconceptions about guardianship are: a guardian is needed because someone tells them they need one, parents are the experts; you need a guardian if you are disabled, and guardianship could solve your problems. It is important to remember, guardianship removes a person’s basic rights (except a person retains the right to vote and can’t be sterilized without consent). It is a legal process conducted by the probate court, typically takes between 6-8 weeks, and costs about $500. Guardianship is a parent-to-child type relationship that is not automatically extended past 18 years of age. It can be full, or limited. Judges have been part of the guardianship re-examination process. As a result, they now prefer individuals retain as many rights as possible (limited guardianship). For example, if an individual under consideration is 18 years old, a time limit may be imposed, calling for re-visitation of the level of guardianship after a specified period. This allows for restoration of rights as a person grows. The evidence threshold for deciding whether or not to grant guardianship has also changed from “probable cause” to “clear and convincing”. Guardianships may now be individually tailored. There are alternatives to guardianship, such as: power-of-attorney, surrogate decision-makers, disability trusts, and conservatorships. Throughout the process it is essential to get people’s wishes, preferences, patterns, and values written down before they lose capacity. It is highly recommended everyone get their own affairs in order.
Comment: Deciding whether or not to pursue guardianship should be a thoughtful one. Guardianship is a close relationship, and there are other choices.
Question: What rights does guardianship confer?
Response: The main ones are residential placement, medical decisions, and financial decisions. Other activities can be limited as well, like cell phone and computer usage. In determining the appropriateness of guardianship, judges, court visitors, and other professionals rely on the “six pillars of capacity”. They are: Medical condition, Cognition. Everyday functioning, Values and preferences, Risk of harm (level of supervision needed), and Means to enhance capacity. Complete judges guide at www.apa.org/pi/aging/resources/guides/judges-diminished.pdf
Comment: Judges are looking for a response to each of the pillars. The ultimate decision is not weighted on one issue. The six pillars offer guidance to court visitors. Occupational therapists are often better at assessing an individual’s capabilities and needs than court visitors.
Question: Is there any monitoring of guardians?
Response: Unless the court thinks it’s necessary – no. Public guardians must report to the court annually. Alarmingly, all the information regarding the guardianship appointment is public and readily available at maineprobate.net. A Bill drafted by Vanessa and the Maine Parent Federation is on the table seeking to shut this information switch off.
Question: Why doesn’t HIPAA (Health Insurance Portability and Accountability Act) catch this?
Response: Currently, it is not covered under HIPAA, but I believe Representatives Berry and Goodall are working to change this.
Response/Attorney Bell: We (Maine Adult Guardianship Services) are also working to get this changed.
Editorial comment: According to the US Department of Health and Human Services, some organizations are not required to follow HIPAA (i.e.: employers, many schools, many state agencies, many municipal offices). FMI on HIPAA: https://www.hhs.gov/hipaa/index.html.
Question: Would it be appropriate to refer folks to Vanessa?
Response: If you want a public guardian you can also talk to DHHS. You should get your affairs in order first, and have the hard conversations with loved ones before seeking guardianship.
Comment: Your family doesn’t necessarily know what your loved one needs.
Comment: Vanessa is a fierce advocate about protecting people.
Comment: Attorneys don’t always have the time, and are not always personable (genial laughter since Tom Bell, an attorney, and Vanessa’s husband, was in attendance).
Question: Is guardianship always administered through the court?
Response: Family matters are handled through probate court. Family information is part of the file, even sensitive information. We are trying to get this changed.
Question: What about the “sudden suitor” for your elderly grandmother? There are predators out there.
Response: Judges have reversed some guardianships and limited others based on new information.
Question: How early can it start?
Response: The person has to be 18. We recommend you take the forms and information home. Take the time to fully answer all the questions and complete the forms. There is a lot of legalese in the court forms. Get help if you need it. The court is looking for a plan, and answers to the questions: what are you going to do, and how will you help them? Involve the person affected whenever possible.
Comment: Court is a lot less formal than it used to be; it is a person-friendly process. Judges are seeking information and most of them are kind, thoughtful people.
Comment: Judge Berry, of the Lincoln County Court, made a tutorial that has been used across the nation. It personalizes the process with the aim of getting rid of peoples’ fears.
Question: What do you charge?
Response: We charge $50-90 per hour depending on the complexity and nature of the services provided.
Question: So a person needs to be able to pay for your services.
Response: Yes. We are also creating a curriculum for private guardians.
Question: Can records be sealed after the fact?
Response: We haven’t heard about anyone going back to the court. Call the court and ask, “Can I seal the case?”
Comment: I am grateful for your (Vanessa) actions. Representative Berry and Goodall are also working on this issue.
Comment: You can view all the documents except the physical evidence at maineprobate.net.
!Useful link: http://www.maine.gov/dhhs/oads/aps-guardianship/guardianship.html You will find extensive information on guardianship including: Guide to Understanding Adult Guardianship and Guardianship Alternatives in Maine booklet, Guardianship Tutorial, Information on Adult Guardianship and Conservatorship, and other related topics.
(End of presentation.)
Maine Coalition for Housing and Quality Services
May 14, 2012
Guest speaker: Vanessa Pelzer Bell, Maine Adult Guardianship Services
Adult Guardianship
Vanessa Pelzer Bell founded Maine Adult Guardianship Services, LLC to offer Mainers an alternative to public and private guardianships. Vanessa served as public guardian for adults with developmental disabilities, then advocated for policy and systemic changes at the state and national level as a project director at the University of Southern Maine, Muskie School of Public Service (biographic information courtesy of Maine Adult Guardianship). Through her work in direct care and case management, Vanessa discovered no one could tell her exactly what guardianship was, nor agree on what it really meant. Not wanting anyone to lose their rights unnecessarily, and to eradicate the many misconceptions about guardianship, she began working to improve the situation.
Synopsis: Some of the misconceptions about guardianship are: a guardian is needed because someone tells them they need one, parents are the experts; you need a guardian if you are disabled, and guardianship could solve your problems. It is important to remember, guardianship removes a person’s basic rights (except a person retains the right to vote and can’t be sterilized without consent). It is a legal process conducted by the probate court, typically takes between 6-8 weeks, and costs about $500. Guardianship is a parent-to-child type relationship that is not automatically extended past 18 years of age. It can be full, or limited. Judges have been part of the guardianship re-examination process. As a result, they now prefer individuals retain as many rights as possible (limited guardianship). For example, if an individual under consideration is 18 years old, a time limit may be imposed, calling for re-visitation of the level of guardianship after a specified period. This allows for restoration of rights as a person grows. The evidence threshold for deciding whether or not to grant guardianship has also changed from “probable cause” to “clear and convincing”. Guardianships may now be individually tailored. There are alternatives to guardianship, such as: power-of-attorney, surrogate decision-makers, disability trusts, and conservatorships. Throughout the process it is essential to get people’s wishes, preferences, patterns, and values written down before they lose capacity. It is highly recommended everyone get their own affairs in order.
Comment: Deciding whether or not to pursue guardianship should be a thoughtful one. Guardianship is a close relationship, and there are other choices.
Question: What rights does guardianship confer?
Response: The main ones are residential placement, medical decisions, and financial decisions. Other activities can be limited as well, like cell phone and computer usage. In determining the appropriateness of guardianship, judges, court visitors, and other professionals rely on the “six pillars of capacity”. They are: Medical condition, Cognition. Everyday functioning, Values and preferences, Risk of harm (level of supervision needed), and Means to enhance capacity. Complete judges guide at www.apa.org/pi/aging/resources/guides/judges-diminished.pdf
Comment: Judges are looking for a response to each of the pillars. The ultimate decision is not weighted on one issue. The six pillars offer guidance to court visitors. Occupational therapists are often better at assessing an individual’s capabilities and needs than court visitors.
Question: Is there any monitoring of guardians?
Response: Unless the court thinks it’s necessary – no. Public guardians must report to the court annually. Alarmingly, all the information regarding the guardianship appointment is public and readily available at maineprobate.net. A Bill drafted by Vanessa and the Maine Parent Federation is on the table seeking to shut this information switch off.
Question: Why doesn’t HIPAA (Health Insurance Portability and Accountability Act) catch this?
Response: Currently, it is not covered under HIPAA, but I believe Representatives Berry and Goodall are working to change this.
Response/Attorney Bell: We (Maine Adult Guardianship Services) are also working to get this changed.
Editorial comment: According to the US Department of Health and Human Services, some organizations are not required to follow HIPAA (i.e.: employers, many schools, many state agencies, many municipal offices). FMI on HIPAA: https://www.hhs.gov/hipaa/index.html.
Question: Would it be appropriate to refer folks to Vanessa?
Response: If you want a public guardian you can also talk to DHHS. You should get your affairs in order first, and have the hard conversations with loved ones before seeking guardianship.
Comment: Your family doesn’t necessarily know what your loved one needs.
Comment: Vanessa is a fierce advocate about protecting people.
Comment: Attorneys don’t always have the time, and are not always personable (genial laughter since Tom Bell, an attorney, and Vanessa’s husband, was in attendance).
Question: Is guardianship always administered through the court?
Response: Family matters are handled through probate court. Family information is part of the file, even sensitive information. We are trying to get this changed.
Question: What about the “sudden suitor” for your elderly grandmother? There are predators out there.
Response: Judges have reversed some guardianships and limited others based on new information.
Question: How early can it start?
Response: The person has to be 18. We recommend you take the forms and information home. Take the time to fully answer all the questions and complete the forms. There is a lot of legalese in the court forms. Get help if you need it. The court is looking for a plan, and answers to the questions: what are you going to do, and how will you help them? Involve the person affected whenever possible.
Comment: Court is a lot less formal than it used to be; it is a person-friendly process. Judges are seeking information and most of them are kind, thoughtful people.
Comment: Judge Berry, of the Lincoln County Court, made a tutorial that has been used across the nation. It personalizes the process with the aim of getting rid of peoples’ fears.
Question: What do you charge?
Response: We charge $50-90 per hour depending on the complexity and nature of the services provided.
Question: So a person needs to be able to pay for your services.
Response: Yes. We are also creating a curriculum for private guardians.
Question: Can records be sealed after the fact?
Response: We haven’t heard about anyone going back to the court. Call the court and ask, “Can I seal the case?”
Comment: I am grateful for your (Vanessa) actions. Representative Berry and Goodall are also working on this issue.
Comment: You can view all the documents except the physical evidence at maineprobate.net.
!Useful link: http://www.maine.gov/dhhs/oads/aps-guardianship/guardianship.html You will find extensive information on guardianship including: Guide to Understanding Adult Guardianship and Guardianship Alternatives in Maine booklet, Guardianship Tutorial, Information on Adult Guardianship and Conservatorship, and other related topics.
(End of presentation.)