Guardianship and the Mentally Ill
Systems on the Brink
I recently retired from working as a guardian for the elderly and disabled for the past five and a half years. I worked for Advocacy Programs, a division of Family Service Association of Sheboygan and was assigned to take on cases with legal entanglements or dysfunctional families or both. The work was very rewarding, and I learned over time that our system of taking care of people who can no longer take care of themselves or manage their affairs is in serious need of repair.
Wisconsin statutes created two separate systems for taking care of those no longer able to make it on their own.
One is the guardianship system. If a person, regardless of age, is found to be incompetent due to conditions like dementia, Parkinsons, Huntingtons, Alzheimers, or developmental disabilities, the courts can appoint a guardian of the person and a guardian of the estate. Guardians of the person are charged with making decisions for the person such as where they will live and the level and kind of health care they should receive. Guardians of the estate handle the person’s financial affairs. Often, our agency was assigned both roles when there was no family member willing or able to take on those responsibilities. We were also appointed when there was conflict within the family as to who should be appointed or if financial or physical abuse or exploitation was found. Guardian conduct is monitored by the court through annual reports on the ward’s condition and annual accountings of income and expenditures on the ward’s behalf. All decisions made by guardians are guided by a “best interest” standard. Is the proposed action in the ward’s best interest.
The other system created by state law is for those who suffer from chronic mental illness such as schizophrenia, depression, substance abuse or bipolar disorder. There are no provisions in this system for someone like a guardian to take over the decision making for the person suffering from mental illness. The court can order a county mental health agency to provide and monitor medication and psychiatric treatments and can order the person to take certain medications if they refuse. Since the 1970s, institutionalization of the chronically mentally ill has been very difficult after courts decided that most with these afflictions can be treated effectively with community-based treatment services. Unfortunately, our legislature and most others around the country has not seen fit to adequately fund community-based programming. This shifted the burden to county governments which are often loath to provide adequate funding to meet the need.
As a result of the inadequate funding for community-based mental health services, many of those with chronic mental illness are shifted into the guardianship system after a finding that the person is incompetent to manage their own affairs due to their overall condition.
The guardianship system is also under funded. Most of those under guardianship have little or no income other than Social Security. Most need 24-hour care and supervision which is provided by assisted living facilities with memory care units and skilled nursing facilities. The cost of this care far exceeds most Social Security and Medicare benefit payment, so Medicaid was created to make up the difference. Medicaid sets reimbursement rates which barely cover the cost of care.
Many facilities which rely upon Medicaid payments cannot retain staff. Hourly pay rates are not very attractive. The turnover of caregivers in these facilities is very high. If a competitor down the street offers a dollar more per hour, people jump jobs. COVID did not help. Those fearing infection from patients or visitors, left the field. If they got infected, they had to stay home, and replacements were hard to find. Pool nursing agencies had difficulty keeping up with the demand and continuity of care went out the window as new caregivers rotated through facilities.
Taking care of people with incompetency due to dementia or Alzheimer’s requires specific training and skills. The medications used to ameliorate symptoms and behaviors associated with these afflictions require specific attention to potential side effects. Medication administration and monitoring is required. Dietary needs are also specific in elderly populations in these facilities. Most facilities can barely keep up with the ever-changing landscape of care needs.
As those with chronic mental illness fell through the cracks in the system designed for them, we have seen an increase in them being shifted into the guardianship system with placement in assisted living and memory care units meant for those found to be incompetent for other reasons.
Taking care of the chronically mentally ill requires a whole different set of skills. Their medications and behavioral issues are often very different. Most facilities geared for the elderly dementia patient do not have staff adequately trained to deal with the needs of the chronically mentally ill. Financial pressure to fill beds to keep Medicaid reimbursement coming in forced many facilities to accept the chronically mentally ill. Having a mixed patient population has created a whole new set of pressures and made care for both suffer.
These issues are driving both systems to the breaking point and need legislative attention. Local governments need to raise local taxes to pump much needed funds into them until legislatures are forced to fill in the gaps.
We owe it to our parents and grandparents to make sure they are properly cared for when they can no longer take care of themselves.
