Banks Can Report Abuse of Elderly Without Violating Privacy Laws

UC Irvine's Center of Excellence on Elder
Abuse and Neglect - committed to eliminating
 abuse of the elderly

The Federal Government has issued new guidelines aimed to help banks understand how to report suspected financial elder abuse without violating privacy laws. It was co-authored by eight federal agencies, including the FTC, SEC, FDIC, and the new Consumer Financial Protection Bureau. The privacy protection law in question is the 1999 Gramm-Leach-Bliley Act (GLBA).

As the Guidance explains, GLBA allows banks to disclose private information “to comply with…state laws that require reporting by financial institutions of suspected abuse.” It may also be released to respond to a government investigation or to respond to judicial process. The guidance was issued to reassure financial institutions that they will not run afoul of federal law by reporting suspected abuse as required under state law.

Ohio law protects the disabled and elderly from abuse, neglect, and exploitation, and requires certain professionals, including doctors, nurses, lawyers, physical therapists, social workers, law enforcement and emergency response personnel. having reasonable cause to believe that an elderly person is in need of protective services to report such information.

Ohio law does not currently require financial professionals such as tellers to report.  Ohio law does, however, protect any person that does report suspected abuse, whether or not required to report.  Any person who makes a report with reasonable cause to believe that an adult is suffering abuse, neglect or exploitation is immune from civil or criminal liability under Ohio law.

The importance of banking professionals in identifying abuse and exploitation cannot be overstated.  According to Richard Cordray, Director of the Consumer Financial Protection Bureau:

"Many older consumers are known personally by the tellers in their local banks and credit unions. These employees may be able to spot irregular transactions, abnormal account activity, or unusual behavior that signals financial abuse sooner than anyone else can. Today’s guidance makes clear that reporting suspected elder financial abuse generally is not subject to these same concerns and does not violate the Gramm-Leach-Bliley Act.

The guidance mentions repeated large withdrawals, debit transactions uncommon for an older adult, random attempts to wire large amounts and the closing of CDs or accounts despite penalties as possible signs of elder financial abuse. 

  

For more information on the new federal guidance, see here, or see the full document here.

Medicaid Applicant Penalized for Assignment of Life Insurance to Funeral Trust

An Illinois appeals court recently held that a Medicaid applicant who purchased a life insurance policy that was assigned to a trust designed to pay funeral expenses is subject to a transfer penalty because the funds could be used for something other than funeral expenses pursuant to the terms of the trust.. Evans v. State (Ill. Ct. App., No. 4-12-1082, Dec. 24, 2013).

Nursing home resident Peggy Evans applied for Medicaid benefits and several days later purchased a life insurance policy for $12,000. The proceeds of the policy were assigned to an irrevocable trust. The trust provided that the trustee pay Ms. Evans' funeral and burial expenses if a bill was presented within 45 days of Ms. Evans' death.  The trust provided further  that in the event that a bill was not presented within that time frame, the assets would be distributed to Ms. Evans' children. The state approved her Medicaid application, but assessed a penalty period based on the transfer.

Ms. Evans' appealed, arguing the transfer to the life insurance policy was exempt from a penalty because the funds were for funeral and burial expenses. Normally, transfers to a funeral trust do not result in a penalty because the funds are used to for satisfying  funeral and burial expenses   The the Department of Human Services denied her appeal, and the trial court affirmed the decision. Ms. Evans appealed.

The Illinois Appeals Court affirmed, holding that the transfer to the life insurance policy was not exempt, so the state correctly assessed a penalty period. According to the court, in order for prepaid burial expenses to be exempt from a transfer penalty there has to be a burial contract in place, which was not the case here. In addition, "the funds can only be used to pay funeral expenses, also not the case here, as the structure of the trust could allow the funds to pass to Evans' children instead of paying funeral expenses."

The decision did not disclose who drafted the trust, or whether counsel reviewed or approved the trust.  Nonetheless, the decision underscores the importance of crafting a funeral trust with appropriate and effective limitations.

For the full text of this decision, go here.

Filial Responsibility- Complicating Estate, Retirement and Asset Protection Planning

Twenty-eight states currently have laws making adult children responsible for their parents if their parents can't afford to take care of themselves. While these laws are rarely enforced, there is growing pressure upon states to use these laws as a way to save on Medicaid expenses.

These laws, called filial responsibility laws, obligate adult children to provide necessities like food, clothing, housing, and medical attention for their indigent parents. According to the National Center for Policy Analysis, a conservative research organization, 21 states allow a civil court action to obtain financial support or cost recovery, 12 states impose criminal penalties on children who do not support their parents, and three states allow both civil and criminal actions. (For a list of the states and citations to state statutes, click here.  Note that Idaho's and New Hampshire's statutes have since been repealed.)

Generally, most states do not require children to provide care if they do not have the ability to pay. States vary on what factors they consider when determining whether an adult child has the ability to pay. Children may also not be required to support their parents if the parents abandoned them or did not support them.

The passage of the Deficit Reduction Act of 2005 made it more difficult to qualify for Medicaid, which means there may be more elderly individuals in nursing homes with no ability to pay for care. In response, nursing homes may use the filial responsibility laws as a way to get care paid for. For more information, click here.

For a discussion of filial responsibility laws in the New York Times's "New Old Age" blog, click here.

Tragic Consequences Result from Simple or Do-It-Yourself Medicaid Planning

Simplistic or Do-It-Yourself Medicaid planning is a "cure worse than the disease."  Yet another in a long line of tragic cases illustrates why seniors should not engage in reckless transfer of assets to children in the hope of avoiding long term care or nursing home costs. Too often, they witness their fortune lost, wasted, or appropriated.  Perhaps the only thing worse than losing a hard earned fortune to nursing home cost, is being rendered penniless and potentially homeless as a result of a simple transfer of wealth to a trusted child.

In 2002, Dorothy Stutesman transferred $142,742 to her daughter, Holly Woodworth, so she would not have assets in her name if she ever needed Medicaid. In April 2010, Woodworth transferred the money to a trust designed to protect the assets from creditors. The entire corpus of the trust was used to purchase an annuity to benefit Woodworth. In February 2011, Woodworth filed for bankruptcy.

The bankruptcy trustee sought to void the trust, arguing it was a fraudulent transfer under bankruptcy code. Woodworth did not dispute that the transfer was fraudulent, but she argued that the property was never part of her estate because she was holding it in a constructive trust for her mother.

The U.S. Bankruptcy Court for the Eastern District of Virginia entered judgment for the bankruptcy trustee, holding that Woodworth clearly had complete ownership of the funds. According to the court, “Ms. Stutesman can’t have it both ways — she can’t part with title for purposes of Medicaid eligibility, and at the same time claim that she retained an equitable title to the asset. To allow this kind of secret reservation of equitable title would be to sanction Medicaid fraud.”

Read More

Source: Habiger, Richard, "Daughter who declared bankruptcy must repay $142,742," Southern Business Journal, http://thesouthern.com/business/daughter-who-declared-bankruptcy-must-repay/article_deae48d0-2aa4-11e3-8086-0019bb2963f4.html

Pennsylvania's Filial Support Law Survives Federal Challenge

Pennsylvania's filial support statute has survived a multi-faceted challenge in federal court. Filial responsibility includes the legal responsibility of a child to care for an indigent parent.  Pennsylvania recently began enforcing its filial responsibility laws, wielding the the legal obligation as a sword in Medicaid resource recovery, in effect requiring a child to reimburse the State for paying through Medicaid the cost of the parent's long-term care. Simply, a child may remain responsible for a parent's long term care costs.  

The U.S. District Court, Western District of New York upheld Pennsylvania's use of filial responsibility in Medicaid resource recovery holding that it was not preempted by  the federal Nursing Home Reform Act, and that collection of a Medicaid  debt created by the statute does not give rise to a Fair Debt Collection Practices Act claim.  Eades v. Kennedy, PC Law Offices (U.S. Dist. Ct., W.D. N.Y., No. 12-CV-6680L, Dec. 3, 2013).  Levere Pike, a New York resident, placed his wife in a Pennsylvania nursing home. After Mr. Pike's wife died, the nursing home hired a law firm that attempted to collect payment from him and his daughter, Joni Eades. The law firm eventually filed a lawsuit in Pennsylvania that is still pending.

Mr. Pike and Ms. Eades sued the law firm, arguing that the attempts to collect the debt violated the Fair Debt Collection Practices Act (FDCPA). They also argued that Pennsylvania’s filial responsibility law is preempted by the portion of the Nursing Home Reform Act (NHRA) that prohibits a nursing home from requiring a third-party guarantee as a condition of admission. The law firm filed a motion to dismiss.

The U.S. District Court, Western District of New York, granted the motion to dismiss, holding the court does not have jurisdiction over Mr. Pike and Ms. Eades' claims. The court went on to conclude that even if it did have jurisdiction, debts created by filial support statutes do not give rise to claims under the FDCPA.  In addition, according to the court, the filial support statute is not preempted by the NHRA because the two laws do not "cover the same territory."  Although arguably the decision is mostly dicta, the court's decision illuminates how federal courts are likely to view filial responsibility in the event that more states follow Pennsylvania in applying filial responsibility to Medicaid recourse recovery.

For the full text of this decision, go here.  

Medicare Ends ‘Improvement Standard’ which Required 'Likelihood of Improvement' in Chronic Conditions before Coverage of Skilled Care and Therapy Services

The Centers for Medicare & Medicaid Services has updated the program manuals used by Medicare contractors in order to “clarify” that coverage of skilled nursing and skilled therapy services does not depend on a beneficiary’s potential for improvement but rather on the beneficiary’s need for skilled care.  The manual update is part of the January 2013 settlement agreement in Jimmo v. Sebelius, No. 11-cv-17 (D. Vt.), which ended Medicare’s longstanding practice of requiring beneficiaries to show a likelihood of improvement in order to receive coverage of skilled care and therapy services for chronic conditions.

The Center for Medicare Advocacy, which along with Vermont Legal Aid represented the plaintiffs in Jimmo, announced that the Medicare Policy Manuals have been revised pursuant to the Jimmo settlement.  The Center and Vermont Legal Aid have been reviewing and providing input on drafts of the manual revisions.

“As with all components of settlement agreements, the Jimmo revisions are not perfect,” said Judith Stein, the Center’s Executive Director. “But they should go a long way to ensuring that skilled care is covered by Medicare for therapy and nursing to maintain a patient’s condition or slow decline – not just for improvement.”

CMS states in the Transmittal announcing the Jimmo Manual revisions: 

No “Improvement Standard” is to be applied in determining Medicare coverage for maintenance claims that require skilled care. Medicare has long recognized that even in situations where no improvement is possible, skilled care may nevertheless be needed for maintenance purposes (i.e., to prevent or slow a decline in condition). The Medicare statute and regulations have never supported the imposition of an “Improvement Standard” rule-of-thumb in determining whether skilled care is required to prevent or slow deterioration in a patient’s condition. Thus, such coverage depends not on the beneficiary’s restoration potential, but on whether skilled care is required, along with the underlying reasonableness and necessity of the services themselves. The manual revisions now being issued will serve to reflect and articulate this basic principle more clearly. [Emphasis in original.]

The next step in the Jimmo settlement is an educational  campaign that CMS will soon mount to explain the settlement and the revised manual provisions to Medicare contractors, providers, adjudicators, patients, and caregivers. CMS’s educational campaign should consist of national calls, forums, written materials, training, and changes to its website.

At a session on the Jimmo settlement that was part of the National Aging and Law Institute in November, Stein urged attorneys to inform the Center of any cases where coverage has been denied because the patient was not improving.  The Center would also appreciate any feedback on the upcoming educational campaign.  E-mail cases or comments toimprovement@medicareadvoacy.org 

The CMS Transmittal for the Medicare Manual revisions, with a link to the revisions themselves, is posted on the CMS website.  The CMS MLN Matters article is also available there under “Downloads.”

Supreme Court to Decide Whether Inherited IRA's Protected from Creditors

The U.S. Supreme Court has agreed to hear a case that will decide whether inherited individual retirement accounts (IRAs) are available to creditors in bankruptcy. The decision in Clark v. Rameker will resolve a split between the lower courts.

Heidi Heffron-Clark inherited a $300,000 IRA from her mother. Inherited IRAs must be distributed within five years. During the five-year period, Mrs. Clark and her husband filed for bankruptcy. The Clarks argued the IRA was exempt from creditors because bankruptcy law protects retirement funds. A district court agreed with the Clarks, but the 7th Circuit U.S. Court of Appeals reversed in Clark v. Rameker (714 F.3d 559 (2013)), holding that the money in the IRA no longer constituted retirement funds.

Meanwhile, the 5th Circuit U.S. Court of Appeals decided in In re Chilton (674 F.3d 486 (2012)), that funds from an inherited IRA should be exempt. The U.S. Supreme Court will resolve this issue later this term.

For more information about this case, click here.

Ambulance Driver Charged with Homicide in Death of Nursing Home Resident

McKnight's reports that the New York Attorney's General office has indicted a former medical transport driver for criminally negligent homicide related to the death of a nursing home resident.  

Driver Juan Garcia was working for Maeleen Ambulette Transport Inc. while transporting an elderly nursing home resident back to the facility from a dialysis appointment, when he came to an abrupt stop. The resident apparently was thrown from her wheelchair in the August 2010 incident. Garcia, 49, has admitted he had not buckled the resident's seatbelt, according to the attorney general's office.

Even though a certified nursing assistant in the ambulette asked Garcia to take the resident to the hospital, he proceeded to drive to the Gold Crest Care Center, the charges state. The resident subsequently underwent surgery for a fractured hip and died about a month later from complications.

“Had [Garcia] taken the most basic safety precautions, this vulnerable nursing home resident would not have died in this horrific way,” Attorney General Eric T. Schneiderman stated.  Garcia was arraigned in Bronx County Supreme Court and released on his own recognizance, according to Schneiderman's office. He faces up to four years in prison if convicted.

Debt Owed to Nursing Home Is Dischargeable in Bankruptcy Court

A bankruptcy court rules that a nursing home cannot claim debt owed by the husband of a nursing home resident to the nursing home is nondischargeable as a domestic support obligation. In re Langan (Bankr. Dist. S.D., Nos. ADV-13-3003, BR 13-30001, Oct. 18, 2013).

Anna Langan died owing debt to the nursing home that provided her care.  The nursing home sued Mrs. Langan's husband, Francis Martin Langan, and Mr. Langan settled, agreeing to pay the nursing home $28,000. The settlement provided that Mr. Langan would not file for bankruptcy within 91 days following the nursing home's receipt of the settlement payment. Mr. Langan filed for bankruptcy one month later.

The nursing home filed a claim with the bankruptcy court, seeking a determination that its claim against Mr. Langan is nondischargeable debt. The nursing home alleged that Mr. Langan failed to pay for his wife's care even though he had assets to do so. Under bankruptcy law any debt "for a domestic support obligation" is exempted from a debtor's general discharge. Mr. Langan asked the court to dismiss the nursing home's claim.

The United States Bankruptcy Court, District of South Dakota, grants Mr. Langan's motion to dismiss, holding that the debt is not exempt from discharge. According to the court, because the nursing home "is not [d]ebtor's spouse, former spouse, or child, and the debt did not arise from a divorce or separation agreement," the debt does not fall under the "domestic support obligation" exception from discharge.

For the full text of this decision, click here.

Mishandling of Nursing Home Trust Accounts a Growing Problem

Many nursing home residents have have "resident trust funds" or "personal accounts" managed by the facility. It may be that the residents have no family members or family members do not want the responsibility, or the nursing facility prefers to manage the resident’s income. Recently, USA Today did an investigative report in which 1,500 facilities have been cited for mishandling of funds in such resident trust accounts. Most of the deficiencies were related to failing to pay interest on the money held, inadequate accounting, or failure to give residents sufficient access to their money. However, there were egregious cases where funds were misappropriated by those who were intended to protect them. Go here to read the full article.   

The USA Today article explains the problem, describes specific examples of account misuse, and provides some practical solutions to  minimize the risk of loss associated with these accounts.  In every case, the resident should have an effective General Durable Power of Attorney in place naming a trusted agent and  alternates. Many nursing home residents are unable to monitor their own accounts, or may be unable to monitor their own accounts during periods of illness, disability, or incapacity. An attorney-in-fact empowered by a Power of Attorney document can monitor the resident account, and even minimize its use by keeping a limited amount of funds in the account. If the agent is willing and able to pay the resident’s bills, the use of the account will be limited to small purchases and will be less tempting to those who are using the accounts for their own purposes.

Fortunately, the resident fund accounts are usually insured.  An attorney-in-fact can make a claim against the insurance company is a loss is discovered.  Such a claim may be frustrated if the resident is unable to prosecute a claim.  It is important that losses are identified quickly, and claims made timely.  

The attorney-in-fact should also make sure that ultimate disposition of the account is provided for, either by an assignment of the account to the resident's revocable trust, or by a transfer upon death or payable upon death designation.  Otherwise the account may require probate court disposition.    

Conveyance to Son Is Fraudulent, But Siblings May Also Be Liable Under Filial Support Law

North Dakota's highest court determined that a nursing home resident's sale of property to his son should be set aside as a fraudulent conveyance, and that the son was personally responsible for his parent's debts under the state's filial responsibility law. But the court also held that the trial court should not have declared the son personally responsible for his parent's debt under the state's filial responsibility law without also deciding whether his siblings were liable under the same law. Four Seasons Healthcare Center v. Linderkamp (N.D., Nos. 20120432, 20120433, Sep. 4th, 2013).

Earl and Ruth Linderkamp owned a farm. They leased the land to one of their sons, Elden, who farmed the property. Elden claimed that he had an oral agreement with his parents that they would compensate him for improvements to the land as part of the consideration to buy the property at a later date. In 2006, The Linderkamps sold the property to Elden for $50,000, well below its market value. Elden claimed he had made more than $100,000 in improvements to the property. Soon after, the Linderkamps entered a nursing home where they remained until their deaths, leaving a total of $93,000 in unpaid nursing home charges.

After the Linderkamps died, the nursing home sued Elden to set aside the property transfer as a fraudulent conveyance. The trial court set aside the conveyance, finding the Linderkamps did not receive equivalent value in exchange for the property. The court also determined Elden was personally responsible for his parents' debt under the state's filial responsibility law, but refused to determine his siblings' liability. Elden appealed, arguing the conveyance was not fraudulent and the court should not impose personal liability against him for his parents' nursing home debt.

The North Dakota Supreme Court affirmed in part, holding the conveyance was fraudulent, but remanded the case to determine whether Elden is personally responsible for the debt. According to the court, there was no evidence of an oral agreement or improvements made to the property "and the conveyance was made when there was a reasonable belief the parents would be entering a nursing home and would not be able to fully pay for their long-term care." The court concluded that the trial court erred in finding Elden personally liable for his parents' nursing home debt without deciding the other children's potential liability under the filial responsibility law.

Many Consumers Will Lose Their Insurance Under Affordable Care Act

From Kaiser Health News: 

Rod Coons and Florence Peace, a married couple from Indianapolis, pay $403 a month for a family health plan that covers barely any of their individual medical care until each reaches up to $10,000 in claims. And that’s just the way they like it.

"I'm only really interested in catastrophic coverage," says Coons, 58, who retired last year after selling an electronic manufacturing business. Since they're generally healthy, the couple typically spends no more than $500 annually on medical care, says Coons.

"I'd prefer to stay with our current plan because it meets our existing needs."

That won’t be an option next year for Koons and Peace. In 2014, plans sold on the individual and small group markets will have to meet new standards for coverage and cost sharing, among other things. In addition to covering 10 so-called essential health benefits and covering many preventive care services at no cost, plans must pay at least 60 percent of allowed medical expenses, and cap annual out-of-pocket spending at $6,350 for individuals and $12,700 for families. (The only exception is for plans that have grandfathered status under the law.)

Plans with $10,000 deductibles won’t make the cut, say experts, nor will many other plans that require high cost sharing or provide limited benefits, excluding prescription drugs or doctor visits from coverage, for example.

According to the Department of Health and Human Services, based on the 10 states and the District of Columbia that have so far proposed individual market premiums for next year, the average individual monthly rate will be $321 for a mid-level plan.

Many policyholders don't realize their plans won't meet the standards set by the Affordable Care Act next year, say experts.

Read the rest of the article here.

Woman Prevails in Guardianship to Protect Her Wishes

Momentous news from the Washington Post:

In a victory for the rights of adults with disabilities, a judge declared Friday that a 29-year-old woman with Down syndrome can live the life she wants, rejecting a guardianship request from her parents that would have allowed them to keep her in a group home against her will.

The ruling thrilled Jenny Hatch and her supporters, who included some of the country’s most prominent disability advocates.  For more than a year, Margaret Jean Hatch, whom everyone calls Jenny, had been under a temporary guardianship and living in a series of group homes, removed from the life she knew. Hatch wanted to continue working at a thrift store and living with friends Kelly Morris and Jim Talbert, who employed her and took her into their home last year when she needed a place to recover after a bicycle accident.

                                                             *      *     *

Legally, Hatch’s case came down to two questions: Was she an incapacitated adult in need of a guardian, and, if so, who would best serve in that role — her mother and stepfather, or Morris and Talbert?

But for national experts on the rights of people with disabilities, several of whom testified on Hatch’s behalf, the case was about much more. It was about an individual’s right to choose how to live and the government’s progress in providing the help needed to integrate even those with the most profound needs into the community.

In the end, Newport News Circuit Court Judge David F. Pugh said he believed that Hatch, who has an IQ of about 50, needed a guardian to help her make decisions but that he had also taken into account her preferences. He designated Morris and Talbert her temporary guardians for the next year, with the goal of ultimately helping her achieve more independence.

“For anyone who has been told you can’t do something, you can’t make your own decisions, I give you Jenny Hatch — the rock that starts the avalanche,” her attorney, Jonathan Martinis, exulted after the decision.

The decision is momentous because it is so rare that a person deemed incompetent or incapacitated is given any legal ability to direct his or her guardianship, or direct decisions of the guardian.  Guardianship, unfortunately, impacts the disabled, including the aged as they confront short-term and long-term disabilities.  Too often, seniors do not consider carefully this issue in crafting an estate and financial plan.

For a prior article regarding this case, go here. 

For more information regarding guardianship, see the following articles:

• Estate Plans Should Consider and Attempt to Resolve Guardianship;
• Illinois Permits Guardian Authority to Petition for Termination of a Ward's Marriage; 
• GAO reports on Guardianship Abuse;
• National Groups Acknowledge Need for Guardianship Reform;
• Report on Abuse by Guardians and the Guardianship Process Released;
• Another Reason for Guardianship Planning: Guardian Convicted of Homicide in Death of Ward 

Woman Prevails in Guardianship to Protect Her Wishes

Momentous news from the Washington Post:

In a victory for the rights of adults with disabilities, a judge declared Friday that a 29-year-old woman with Down syndrome can live the life she wants, rejecting a guardianship request from her parents that would have allowed them to keep her in a group home against her will.

The ruling thrilled Jenny Hatch and her supporters, who included some of the country’s most prominent disability advocates.  For more than a year, Margaret Jean Hatch, whom everyone calls Jenny, had been under a temporary guardianship and living in a series of group homes, removed from the life she knew. Hatch wanted to continue working at a thrift store and living with friends Kelly Morris and Jim Talbert, who employed her and took her into their home last year when she needed a place to recover after a bicycle accident.

                                                             *      *     *

Legally, Hatch’s case came down to two questions: Was she an incapacitated adult in need of a guardian, and, if so, who would best serve in that role — her mother and stepfather, or Morris and Talbert?

But for national experts on the rights of people with disabilities, several of whom testified on Hatch’s behalf, the case was about much more. It was about an individual’s right to choose how to live and the government’s progress in providing the help needed to integrate even those with the most profound needs into the community.

In the end, Newport News Circuit Court Judge David F. Pugh said he believed that Hatch, who has an IQ of about 50, needed a guardian to help her make decisions but that he had also taken into account her preferences. He designated Morris and Talbert her temporary guardians for the next year, with the goal of ultimately helping her achieve more independence.

“For anyone who has been told you can’t do something, you can’t make your own decisions, I give you Jenny Hatch — the rock that starts the avalanche,” her attorney, Jonathan Martinis, exulted after the decision.

The decision is momentous because it is so rare that a person deemed incompetent or incapacitated is given any legal ability to direct his or her guardianship, or direct decisions of the guardian.  Guardianship, unfortunately, impacts the disabled, including the aged as they confront short-term and long-term disabilities.  Too often, seniors do not consider carefully this issue in crafting an estate and financial plan.

For a prior article regarding this case, go here. 

For more information regarding guardianship, see the following articles:

• Estate Plans Should Consider and Attempt to Resolve Guardianship;
• Illinois Permits Guardian Authority to Petition for Termination of a Ward's Marriage; 
• GAO reports on Guardianship Abuse;
• National Groups Acknowledge Need for Guardianship Reform;
• Report on Abuse by Guardians and the Guardianship Process Released;
• Another Reason for Guardianship Planning: Guardian Convicted of Homicide in Death of Ward 

Disabled Woman's Guardianship Battle Draws Attention to Guardianship Risks

A 29-year-old Virginia woman with Down syndrome is fighting her parents' attempt to obtain guardianship in a case that has drawn attention to the inherent conflict existing in the laws regarding adult guardianship. These laws seek to protect persons who cannot help themselves, but inherently risk the freedom and independence of those persons who are capable of helping themselves.

There seems to be little question that Ms. Hatch wants to make decisions independently. Before August 2012, apparently, neither of Margaret Jean Hatch's divorced parents wanted to care for her. According to published reports, her father claimed that he couldn't provide an appropriate level of care, and her mother claimed that her relationship with her daughter was too contentious. Consequently, Ms. Hatch, who has an IQ of 52, moved back and forth between friends' apartments and group homes, eventually living with her employers, Kelly Morris and Jim Talbert, owners of a retail shop.

Ms. Morris and Mr. Talbert determined that Ms. Hatch would have a better chance of qualifying for Medicaid waiver services if she was homeless, so they encouraged her to move into yet another group home until her Medicaid application was approved. Ms. Hatch moved back in with the couple once she began receiving waiver services, but two days later, her mother, Julia Ross, and her stepfather, Richard Ross, filed for guardianship. According to the Washington Post, the Rosses claimed that Ms. Hatch "lies, causes confusion, is inappropriate behaving with men, contacts neighbors relentlessly, and is obsessed with others who are nice to her."

Ms. Hatch chose to contest the guardianship, and she has drawn support from members of her community who insist that she should have the right to live where she wants. Her supporters have gone so far as to start a "Justice for Jenny" campaign. The case has drawn the interest of national advocates, including Jennifer Mathis of the Bazelon Center for Mental Health Law, who told the Post, "[t]here is a default assumption that people with intellectual disabilities and people with mental illness need people to make decisions for them, that they can’t, with aid, fend for themselves. Which just isn’t true."

The Hatch case illustrates the inherent conflicts that arise under guardianship laws, especially for people who may need some assistance, but who may not require full guardianship and do not, therefore, deserve the complete loss of control of their lives and affairs.