Nebraska stands alone as the only state in the country relying solely on volunteers to provide elderly, poor, or disabled residents with required court-appointed guardians to look out for their interests. Demands to change the system are getting fresh support after theft charges were filed against a guardian responsible for dozens of wards in the state. A leading advocacy group for the disabled calls the situation “appalling.”
This month reform advocates renewed their call for Nebraska state senators to introduce a bill creating a team of state-funded professionals to step in when no one else is available. It’s a system in place in some form in 49 other states. A similar proposal was rejected by the legislature twice in the past four years and has not gotten the support of Governor Dave Heineman.
WHAT IS A GUARDIAN?
A guardian is appointed by the courts to give a competent adult responsibility over the affairs of another adult who may be unable to act on their own behalf because of medical reasons, mental illness, or a substance abuse problem.
Guardians are also assigned to children without a responsible adult in their lives. There is a responsibility of the Guardian to act in the Ward’s best interests.
“A guardianship is used when an individual has problems with making every day decisions,” says Douglas County Court Judge Susan Bazis. “We rely on volunteers to come forward to be the guardian or conservator.” Bazis served on a commission established in 2010 by Nebraska’s Chief Justice to examine the guardianship system.
For more information and neccessary forms to become a guardian or conservator, visit the Nebraska Judicial Branch web page.
Discussion of guardianships was renewed after a state audit and police investigation lead to charges against a guardian of stealing thousands of dollars from the people entrusted to her care.
Judith Widener of Bayard, Neb. established a non-profit organization, Safe Haven, with the mission of providing guardian and conservator services. She had completed a training program put on by the University of Nebraska Extension Service (see her certificate here) but even that day long training is not required to be appointed by a judge.
The Scotts Bluff County Attorney charged Widener with stealing state aid checks intended to help her wards. Investigators claim they discovered at least $600,000 stashed in more than 40 different bank accounts. The Nebraska state auditor, after reviewing just some of Widener's client records, estimated she misappropriated $35,000 from unknowing elderly and disabled wards. This allegedly included their personal funds, Social Security payments, and checks written by the Department of Health and Human Services from its aid programs. (Read the full audit here.)
Over the past ten years, county court judges assigned Widener as many as 600 cases, according to the auditor’s report. The state court administrator’s office estimates 219 of those cases were still active at the time of Widener’s arrest. Ordinarily a guardian would have only a handful of cases. State Auditor Mike Foley found Widener’s large case load “curious,” noting she had been given responsibility for wards in 60 different counties, “from one end of the state to the other,” Foley said. “There was no possible way Judith could have reasonably known of these people and met these people and guarded them.”
“What we have is a situation where we have no other choice and that makes it a ripe environment for people like Ms. Widener who will take advantage of vulnerable people,” Coash said.
Disability Rights Nebraska, an advocacy group based in Lincoln, issued a statement after the audit stating, “This whole incident is powerful evidence of the need for a public guardianship law in Nebraska.”scathing review of an aid program managed by the Department of Health and Human Services, the State Assistance to the Aged, Blind, or Disabled (AABD). In a news release accompanying the report, Foley claimed the program was “riddled with problems – some criminal in nature.” (In a prepared statement the Communications Director for DHHS said, "While we disagree with many of the Auditor’s specific findings, we acknowledge that in some cases there have been inaccurate payments, in many cases due to the failure of the client to provide required information.”)
On one issue there is broad agreement. Nebraska’s all volunteer system has resulted in a lack of trusted, independent guardians to look out for the interests of the disabled and mentally incapacitated.
The court administrator’s office estimates there are 12,000 Nebraskans currently entrusted to a legal guardian by a county judge. In most cases that will be a family member or attorney paid to look after the ward. However changes in society placed huge strains on the system and according the to report issued by the Joint Commission Joint Review Committee on the Status of Adult Guardianships, “demographic realities threaten to overwhelm already scarce judicial resources.” (Visit the Nebraska Judicial Branch website for additional information about the responsibilities of guardians and conservators.)
The Commission issued its findings in 2010. Douglas County Court Judge Susan Bazis said the problem gets more serious every year. As Nebraska’s population ages there will be more elderly and vulnerable residents. At the same time, Judge Bazis points to data showing in many cases, people are having smaller families so “there are fewer children to serve. Children are moving away from their home towns so they are not available.” That leaves county courts with fewer people willing to serve as guardians even as the numbers in need of guardians increases.
States in the region take different approaches to guardianship programs. In South Dakota, the state will provide a guardian though the Department of Human Services if no other family member, non-profit or other public agency is willing to serve. Kansas uses volunteers, but they are trained and supervised by a separate publicly-funded organization.
Concerns about creating any sort of state-supervised guardianship program in Nebraska have centered on cost. Advocates like Sen. Coash concede setting up such a system is “not cheap.” How much money will be needed will depend on the scope of the program and which agency administers operations.
Some budget conservatives, including State Auditor Foley, are ready to consider alternatives.
“We need to learn more about that,” Foley said, “but I think a lot of people are going to be questioning whether or not we should go forward with volunteer guardianship arrangements.”
A SAMPLING OF CASES
Judith Widener had more than 200 active guardianships in Nebraska when she was arrested. Reviewing many of the filings in Scotts Bluff County provided interesting examples of who needs this sort of legal protection. Click on a name and view one of court documents filed in the case. Some information hidden to protect the person's privacy.
- Carol lived in a nursing home in western Nebraska. Diagnosed with dementia she was unaware her son had been making use of her bank account without her permission. A representative of the state's Adult Protective Services went to the court to request a guardian be appointed.
- Edward was incapacitated by a stroke. While his daughter and second wife fought over who should be assigned sole responsibility over his affairs the court appointed a temporary guardian.
- Christopher, a homeless Sioux Indian was dying of liver disease with no family to care for him, faced discharge from the hospital after nine visits in one year. Showing "signs of mental impairment," a court assigned him a guardian.
In many cases judges did take notice, according to the state court administrator’s office. In a written statement to NET News, the office noted there were 219 active guardianship cases involving Widener and in a majority of those her annual reports were up to date. The administrator’s office cited 119 cases where Widener’s paperwork was found insufficient by county courts, who in turn asked her to comply with the regulations with what is known as a corrective action notice. There were reportedly cases in which Widener did not tell judges her wards had died, while their government aid checks continued to be cashed.
Currently local courts do not have the money or staff to conduct even a few random reviews of the accuracy of the reports filed by guardians.
Judge Bazis, while not able to comment on any specific court case, said in any guardianship situation “we really relied on people being honest and that they wouldn’t lie to the court.”
Unless concerns or objections are raised by someone outside the court, the annual reports and filing are taken at face value.
“In large part, the majority of guardians are doing that,” said Bazis. “They do the right thing. Reporting as they are supposed to be, handing what they are supposed to be doing appropriately.”
Meanwhile, the state has a mini-crisis on its hands. There are probate hearings all over the state this month removing Judith Widener from her role as guardian for the 219 active guardianships she maintained. County court judges just aren’t sure who can be found and trusted to look after their interests.