In a recent article in the Oregonian <http://www.oregonlive.com/news/oregonian/steve_duin/index.ssf/2015/01/steve_duin_the_forlorn_twiligh.html>, columnist Steve Duin reported on the story of an elderly couple who had agreed, after a neglect investigation by the Oregon Adult Protective Services office, to be placed under guardianship, but then objected to the conditions and cost, and unsuccessfully moved to have the wife removed from the guardianship on the grounds that she no longer needed it. Some of the issues suggested in the article may or may not involve conflicts of interest on the part of the guardian or the home health case provider it hired. I have not heard the evidence in this case and do not know what has happened or not happened, but it appears a recently created means of obtaining an independent opinion was not available.
In 2014, the Oregon legislature passed a bill authorizing the creation of special advocates, whose role is to investigate and report whether a guardian or conservator is doing their job properly and to advise the guardian or conservator about available resources. In the case described in the article, there appear to be disputes whether the guardian is spending too much on services, whether there may be a conflict of interest between the guardian and its home health care provider (it allegedly retaliated against two employees when they received a subpoena from the couple’s lawyer), and possibly even whether the reports by the fiduciary as to the couple’s mental condition are accurate. Again, I do not know what the truth is. If an advocate was appointed, however, it may have been possible to get another opinion than was presented to the judge.
Unfortunately, the law requires the courts set rules to implement the special advocate program before special advocates are appointed. That hasn’t happened yet in the county where the couple lives. As a result, advocates were not available. (Instead, the court issued a rule requiring non-professional guardians and conservators to take a special class.)
A second problem that may hamper the program after the rules are set is that special advocates must be either volunteers or court employees. They aren’t allowed to take payment from anyone else in the case. Although this restriction will help prevent conflicts of interest, it makes the program vulnerable to budget cuts. The legislature may want to consider additional fees in probate, guardianship, and conservatorship cases to set up a fund for special advocates.
Among the people who may want to request special advocates, once the rules are in place, will be guardians and conservators seeking advice, wards and friends questioning the performance of the guardians and conservators, and the occasional judge who wants a better assessment of the facts. If you’re involved in a guardianship or conservatorship case, you may want to ask a lawyer to keep an eye on this year’s announcement of court rules and advise you whether a special advocate might help.