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Adult Guardianship and Conservatorship

May 20th, 2014 · No Comments

We know from demographic studies that the senior population in the United States (age 65+) is anticipated to swell to 71.5 million members by the year 2030.   As this segment of the population grows, so will the need for appointment of conservators and guardians for incapacitated older adults.  When a person is deemed incapable of managing his or her own personal or financial affairs, a court will appoint a conservator or guardian to take control of those decisions.  The scope of responsibility for a conservator or guardian may be limited to financial matters, or may include other aspects of the protected person’s life-health care, shelter, food and security.  For the purpose of this posting, I would like to focus on adults lacking the capacity to handle their own personal and/or financial business. The relationship and duties of a conservator/guardian to a protected older adult will vary from jurisdiction to jurisdiction, but they are governed exclusively by state law.

Each state has an established judicial process to create conservatorships and guardianships; the roles are often distinguished by the degree of competency or the type of need demonstrated by the individual to be protected.  Generally speaking, a conservatorship is created when a court grants one person or entity the authority to make financial decisions for another-to manage and protect the assets and property of the incapacitated adult.  A guardianship is created when a court grants one person or entity the responsibility to manage the daily affairs of the incapacitated adult-including all aspects of health and personal care.   State courts may use these terms interchangeably, but the corresponding duties by law are very specific as to scope, duration, accountability and revocability.  For example, find information about guardianships and conservatorships for incapacitated adults in Virginia here.

How are these guardianships/conservatorships initiated?  What safeguards are in place to protect this vulnerable segment of the population?

1) Typically, a petition is submitted to the appropriate court (likely a probate court) in the jurisdiction where the senior resides.  The petition should include evidence supporting the contention that the individual does not possess the mental or physical capacity to make life decisions (e.g., medical affidavits, sworn statements from caretakers or family members). The petition should also identify the person or entity to be appointed guardian (often a relative, health care facility or nursing home administrator, or other interested party).  Click here to see forms to start a guardianship proceeding in California.

2) The court then contacts the allegedly incapacitated person, his or her family, and any other individuals specifically directed by state statute.  The person may have an attorney, and in some states the probate court may offer or appoint counsel.  An investigator may be assigned to gather evidence regarding the individual’s alleged incapacity or disability, or the court can appoint a guardian ad litem to represent the senior’s interests.  The guardian ad litem can advise the person of his or her rights, collect supporting evidence, and make recommendations on behalf of the senior.  Evidence for both parties may include medical and mental health history, community and law enforcement records, and family, friend, neighbor or caretaker testimony.  Click here to view information about the Mendocino County, California probate conservatorship investigation program.

3) If the guardianship is uncontested, the hearing should be brief.  If contested, the judge may request additional evidence and testimony before declaring a finding of competency.  If contested because of the selection of a particular guardian, the judge may order additional hearings or a trial to determine the suitability of the original appointment, or select another candidate.  Usually,  the court prefers the appointment of a family member if available and willing, assuming that no obvious conflict of interest appears.  However, the judge has wide latitude to appoint anyone that he or she deems appropriate to fulfill the duties of conservator or guardian.

4) If the court finds that it is necessary to protect an incapacitated adult, the judge will determine what type of appointment to make.  It may be a limited guardianship or conservatorship, granting decision-making authority over selected areas that the senior can no longer personally manage. Alternatively, the judge can assign a full guardianship over all personal affairs (financial, medical, social, residential, etc.).   The court may also grant an “interim” or “emergency” appointment if the person appears at risk of immediate harm or seems incapable of making life-sustaining decisions.  In that scenario, the guardian or conservator may hold a temporary assignment until a full hearing is scheduled to determine the senior’s competency.

5) ) Once an appointment is made, what safeguards are in place to ensure that the conservator or guardian is executing his or her
duties responsibly and ethically? In most jurisdictions, the conservator or guardian must post a surety bond and submit to an annual review of all records, receipts and accounting ledgers.  If the judge is not satisfied with the documentation, reporting or submission timeline, or overall performance of the guardian or conservator, the court can sanction or remove the guardian for malfeasance.  Also, if the guardianship is no longer necessary, the court can restore the rights to the formerly incapacitated adult upon a showing of competency.  disease, or other forms of dementia) or by physical disability.

As our population ages, we must make guardianship/conservatorship monitoring a priority, not only through the courts but also through other state agency and community channels.  There are prominent national organizations that can provide additional legal information and resources as well:   the American Bar Association; the National Association of Attorneys General; the American Association of Retired Persons, and the National Guardianship Network.  CourtReference can help you find your local probate court by providing contact information for every county in every state, with links to the clerk’s website where available. CourtReference also has additional online resources in the Self Help and Legal Research category; look for links that mention Conservatorship or Guardianship.


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Court System Changes: Realignment

April 29th, 2014 · No Comments

Last October’s post about court system changes discussed structural changes, such as combining different tiers of state trial courts into a single tier, transferring jurisdiction over some types of cases from one type of court to another, or placing multiple courts under a single administration. These changes are driven by a need for efficiency, both to decrease costs during times of tight budgets and to insure fairness in access to justice.

In July 2010, we discussed how municipal courts in New Jersey, driven primarily by budget concerns, are using shared services and consolidation agreements to combine several local courts into one. This doesn’t change the structure of the court system, but it does close courts in some municipalities, so that some parties may have to travel farther to the court that serves them.

Yet another type of court system change can be found in Pennsylvania, driven in part by budget concerns and in part to provide all citizens with equal access to justice. Pennsylvania’s Magisterial District Courts have limited geographic and subject-matter jurisdiction; some serve a single municipality, some serve only part of a municipality, but most serve several cities, boroughs, and townships.

Pennsylvania’s state Constitution directs the state Supreme Court to establish the number and boundaries of magisterial districts “for the efficient administration of justice” within each district. Pennsylvania statutory law gives the state Supreme Court “supervisory and administrative authority” over Magisterial District Courts. Another statutory provision requires the reestablishment of the number and boundaries of all magisterial districts every ten years following the Federal census, and also allows the numbers and boundaries of these courts to be “revised from time to time as required for the efficient administration of justice.” Yet another statutory provision prescribes the classes of Magisterial District Courts and the population density allowed for each.

To implement the constitutional and statutory requirements, the Pennsylvania Supreme Court periodically issues orders reestablishing some Magisterial District Courts, changing the boundaries of others, and sometimes eliminating some in each judicial district (most Pennsylvania judicial districts are a single county, but a few include two counties). These Supreme Court orders were issued for all districts in 2000 and again in 2013; new and amended orders for some districts were also issued in intervening years. The Supreme Court doesn’t issue these orders arbitrarily; they are based on a plan submitted by the President Judge of the Court of Common Pleas in each district, and that plan includes a detailed analysis of each Magisterial District Court’s caseload and each magisterial district’s population density.

If a Magisterial District Court is simply reestablished with its original boundaries, there is no effect on the population served by that court. But when a court is eliminated and its jurisdiction transferred to another court – or when jurisdictions are transferred among several courts in response to population density changes – some municipalities and their residents will find themselves served by a different court than the one that has served them for years. Thus, the orders are generally referred to as “realignment orders” because the realignment of district boundaries has the greatest effect.

Like the consolidation of municipal courts in New Jersey, the realignment of Magisterial District Courts in Pennsylvania can inconvenience some citizens. Depending on where they live within the new district, some will have to travel farther to get to court, but many will have a shorter trip. But since citizens’ access to justice is affected in some way, the proposed realignment plan is open to public comment. An example a public notice soliciting comments in one county may be found here.

Arguments pro and con are often found in local news report and blog posts, and some plans may change based on public comment. A common “con” argument is that reducing the number of Magisterial District Courts in a district will make that district’s courts more crowded. But with budget pressure to reduce the number of court facilities and personnel, and the statutory requirement to base realignments on population density, the pain of more crowded courts is spread fairly uniformly. In the end the Pennsylvania Supreme Court has the final say.

Many realignments take impending Magisterial District Court justices’ retirements into account. If a justice is about to retire, elimination of that court is often tied to that retirement date. This saves the taxpayers the expense of an election to replace a retiring justice, only to have the newly elected justice serve an abbreviated term.

Many Pennsylvania counties’ websites - or the website of the Court of Common Pleas for that county’s judicial district - include lists of municipalities served by each Magisterial District Court. Some even include maps, or online search features that show your court based on your address. But in many counties, there is no such information available online – unless one is willing to look up, read, and decipher the relevant realignment orders. Fortunately, CourtReference’s Guide to Pennsylvania Courts shows you the cities, boroughs, and townships that are served by each Magisterial District Court in every Pennsylvania county.


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Juvenile Status Offenses-Incarceration or Intercession?

April 21st, 2014 · 1 Comment

In our last post, we examined the confidentiality of juvenile records and the various state procedures available to seal or expunge them.  As noted, the public does not have access to these records once sealed,  but law enforcement and court personnel do retain unfettered access.  If the juvenile record includes acts considered felonious if committed by an adult, that record will likely remain unsealed.   But what of acts deemed illegal only because of the offender’s status as a juvenile?  How are these “status offenses” defined legally?

Status offenses are acts that would not be considered illegal if committed by an adult.  Examples include truancy, running away, violating curfew, and the possession and use of alcohol or cigarettes   (or marijuana in states where individual purchase and consumption are legal).   Of course status offenses may be defiant or disobedient acts, but they are not necessarily criminal (with the possible exception of controlled substance violations).   Some states also include “incorrigible” or “ungovernable” behavior as conduct rising to the level of a status offense; in these jurisdictions the juvenile is considered beyond the control of the parent(s) or guardian(s).

So how does the legal system respond to status offenders?  Traditionally, these offenders were processed through the juvenile justice system, along with their criminally delinquent peers.  In the 1970s, there was growing recognition that status offenders should be diverted from juvenile court jurisdiction and consequent correctional confinement.  The federal 1974 Juvenile Justice and Delinquency Prevention Act (JJDP) advanced the notion of decriminalizing status offenses and reducing the incidence of status offender detention.  With passage of this Act, broad consensus emerged that these juveniles should not be treated as criminal offenders and that other governmental or community service agencies could offer superior placement and rehabilitation options.

Regardless, national reform of this magnitude moves slowly and incrementally.  In 1980, the JJDP was amended to allow limited confinement of juveniles (typically truants and runaways) who repeatedly disobeyed court orders.  Known as the “Valid Court Order” exception (VCO), a status offender could be placed in a detention or correctional facility and also be adjudicated as a delinquent if found in violation of a VCO.  While this exception seems contrary to the goal of the Juvenile Justice and Delinquency Protection Act-to prevent the detention of juveniles and the stigmatizing label of “delinquent” for noncriminal behavior-many judges felt they needed a mechanism to penalize chronic status offenders.  Consequently, thousands of these juveniles have been incarcerated under VCOs in multiple states.

As Judge Michael Nash noted in his op-ed piece on October 14, 2013 in Juvenile Justice Exchange, Ideas and Opinions:

“…The VCO is still in effect in most states, but there are significant efforts to eliminate it if and when Congress reauthorizes the JJDPA, which it has not done since 2002. There are good reasons for this, and there are positive developments in this area.

First, there is considerable research that has been done on adolescent brain development. We know that adolescents are different from adults. Adolescents are characterized by greater risk taking or sensation seeking and lesser ability to control impulses and resist pressure from peers and less likely to think ahead. We also know that as the brain develops and individuals mature into adulthood, these characteristics will decrease. Further, although holding youth accountable is important, it must be done in a way that does not harm them and endanger their normal development.

In accordance with the above, research shows that responses such as secure detention of status offenders is ineffective and potentially dangerous. Rather than punish them, youth, particularly status offenders, are better served by being diverted from the justice system. When you couple that with community programs that include engagement of youth and their families as well as programs designed to meet their specific needs, the chances of achieving positive outcomes for youth and their communities are greatly enhanced…”

In addition to the studies on adolescent brain development impacting behavior, there is abundant data concluding that at-risk youth are more likely to commit status offenses-those who are homeless, from a broken or dysfunctional home, or who suffer from mental, physical or educational disabilities.   Diverting these status offenders from the juvenile justice system to alternative agency, community, family, and treatment services will promote local social ties, and avoid the isolation of detention and exposure to serious offenders in juvenile confinement.   If alternative placement is necessary, state or local child welfare services may be able to place the juvenile with a relative, foster home, or residential home, and offer additional counseling, educational, or rehabilitative support.

To view information about how juvenile offenders are adjudicated or diverted in your area, find your state on CourtReference, then select the “Self Help and Legal Research” court resource category to locate links to your local juvenile justice system.


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