'Unbefriended' Elders Receive Court Protection in California
Nerenberg, Lisa, Aging Today
The three cases summarized in the box adjacent to this article, and others like them, were the focus of San Francisco's Conservatorship Work Group, a group of professionals convened by the Probate Division of that city's Superior Court under a 2002 grant from the California Administrative Offices of the Court. The purpose of the grant was to determine whether older adults, especially abused elders, had adequate access to the court. A model program with national implications, the work group went on to examine the broader issue of whether San Francisco has ample safeguards in place for elders with diminished mental capacity.
The work group drew from multiple sources to guide its discussions, including a review of 168 conservatorships established in 2000. Probate conservatorship (called guardianship in most states) is a legal arrangement in which courts appoint responsible people or organizelions to oversee the care of those who cannot manage alone. Because it is relatively costly, can be permanent and deprives conservatees of basic rights, it is often viewed as the option of last resort.
According to Eileen Goldman, a private consultant who worked on the conservatorship review, "We were surprised by some of our findings: In over 25% of the conservatorships, the reason given for filing was that doctors or nursing home administrators were uncomfortable making decisions for patients who were declining cognitively and who lacked decision-makers."
The need for medical decision-makers is not unique to San Francisco. In 2003, the American Bar Association (ABA) published its groundbreaking report, Incapacitated and Alone: Healthcare Decision Making for Unbefriended Older People, after conducting a national survey to determine how states were addressing the Healthcare needs of elders with diminished mental capacity who lack surrogates. The report describes "perverse incentives" that prompt healthcare facilities to either undertreat the unbefriended-people who move through the system without friends or advocates-to contain costs, or overtreat them as a shield against liability. A group of experts convened by the ABA concluded that judicial remedies like guardianship should be used only when other options have failed or conflicts cannot be resolved. The experts further suggested that ethics committees could potentially assist in making medical decisions for the unbefriended.
The case review further revealed that 10% of conservatorships were requested because "long-term care facilities required them for placement." The unwillingness of nursing homes to accept patients without responsible parties is a persistent problem, one so acute that it prompted Jewish Family and Children's Service (JFCS), one of three nonprofits in San Francisco that serves as a court-appointed conservator, to contract with a local hospital to oversee the release and aftercare of unbefriended patients on a fee-for-service basis. According to Amy Rassen, associate executive director of JFCS, "It makes good sense to divert the costs of unnecessary hospitalization toward improving elders' quality of life."
Other reasons cited for conservatorships were to stop evictions, freeze the assets of incapacitated elders when criminals had access to them, and arrange for needed services. These cases also came under scrutiny, with work group members questioning whether less restrictive alternatives could suffice. According to Mary Joy Quinn, who directed the work group project, "The problem is, we lack sufficient alternatives that can be employed after the onset of incapacity." Quinn, director of probate for the San Francisco Superior Court and author of Guardianships of Adults: Achieving Justice, Autonomy and Safety (New York City: Springer, 2005), continued, "Most alternatives such as advance directives or community services can be used only when people still have the capacity to make decisions."
The work group explored alternatives, turning first to California statutes. …