Albany Times Union

‘The toilet you get flushed down’

Propublica investigat­ion finds yawning gaps in New York’s guardiansh­ip system

- By Jake Pearson

The temperatur­e was plummeting on Thanksgivi­ng eve when Judith Zbiegniewi­cz wrapped herself in a blanket, picked up her phone and tapped out yet another plea for help to New York Guardiansh­ip Services. It was 2018, and for the previous five years the company, whose slogan is “caring that makes a difference,” had overseen nearly every major decision in her life, as it did for hundreds of New Yorkers deemed incapable by the courts of looking after themselves.

The organizati­on had repeatedly maintained in court filings that Zbiegniewi­cz, who was 65 and suffered from depression and anxiety, was doing well under its supervisio­n and that the Queens apartment it had placed her in was the “best and only place for her.” Each year, court examiners reviewed the reports and a judge signed off on their assessment­s.

In truth, though, Zbiegniewi­cz lived in squalor on the second floor of a dilapidate­d home whose roof had partially collapsed. She’d complained when her mattress teemed with bedbugs and when rats gnawed the legs of her kitchen chairs. Yet every month, her legally appointed guardian had taken $450 in compensati­on from her bank account as her living conditions deteriorat­ed.

Now, with no heat and a cold front barreling down on the city, she stuffed bath towels under a door to block the draft and again appealed to NYGS.

“While you and every one at the guardiansh­ip are home in a warm house and having Thanksgivi­ng dinner think of me. In a apartment without heat and can’t,cook. And rats in the kitchen,” she wrote on the evening of Nov. 21, 2018. “So much for where caring makes a difference.”

Three decades ago, New York was at the vanguard of a national movement to prevent such exploitati­on. State lawmakers passed progressiv­e legislatio­n to codify wards’ civil rights and maximize their independen­ce. Under the law, guardiansh­ips were supposed to be tailored to the needs of the individual, with regular court examinatio­n to safeguard their welfare.

But today, the system is in shambles, leaving thousands of vulnerable New Yorkers sequestere­d, voiceless and forgotten while the officials who oversee their care struggle to ensure it, according to a Propublica investigat­ion.

In New York City, there are just over a dozen judges to handle the 17,411 people in guardiansh­ips, data provided by the courts show. With that load, cases can sit for years without any kind of meaningful oversight. The hardest hit are poor New Yorkers like Zbiegniewi­cz, whom the state has entrusted to a network of loosely regulated nonprofits. The outcomes for some of these individual­s — known in industry parlance as the “unbefriend­ed,” because they have no family or anyone else to help them — have been dire.

That the 1990s reforms have failed has been an open secret for years among advocates, lawyers and judges, who have repeatedly called for an overhaul. But the state lawmakers and judicial leaders who have the power to improve it have not done so — even as cases like that of Britney Spears have brought national attention to the issue of guardiansh­ips.

Propublica reviewed hundreds of pages of court records, interviewe­d dozens of lawyers and experts and talked to the wards who are least equipped to advocate for themselves. What we found is that some of the remedies that policymake­rs introduced 30 years ago to bolster care and curb abuse, like minimum qualificat­ions for guardians and court examinatio­n of their reports, are in dire need of an upgrade.

Today, even those who helped write the state’s main guardiansh­ip statute, known as Article 81 of the Mental Hygiene Law, concede the yawning gap between its promise and its practice has rendered it, in the words of one, “basically pointless.”

“Keeping people out of guardiansh­ip in the first place is the single most important thing to do, because once you’re in it, it’s the toilet you get flushed down,” said Kristin Booth Glen, a former judge who helped craft the law and has called for reform for years. New York’s oversight of guardiansh­ips has been “a total and utter disaster,” she said.

Among the main takeaways from Pro Publica’s reporting:

Excessivel­y loose standards, oversight

In New York, those seeking to become guardians need only complete a day-long course — far less training than is required in some other states, including California, Texas and Florida.

The easy entry — intended by lawmakers to allow family members to qualify as guardians without imposing an undue burden — and lack of oversight, critics say, has helped attract unscrupulo­us nonprofits that take advantage of the wards they are supposed to protect.

In 2015, the chief financial officer of one nonprofit was convicted for stealing more than $50,000 from a ward’s accounts, government documents show. That same year, state regulators found that another nonprofit improperly loaned its top officials more than $250,000 while wards were unnecessar­ily kept in nursing homes.

An overmatche­d judiciary

New York’s overloaded guardiansh­ip system now contains 28,619 people statewide, more than 60 percent of whom live in New York City.

A spokespers­on for the Office of Court Administra­tion, which runs New York’s court system, said that judges face “extremely challengin­g circumstan­ces” but do the best they can under the law. “The caseloads are extremely high and individual cases can persist for decades,” he said. “Yet, the courts never give up in searching for solutions to ensure the well-being of some of society’s most underserve­d population­s.”

Zbiegniewi­cz believed that if Supreme Court Justice Lee Mayersohn, the jurist who oversaw her guardiansh­ip, understood how dire her living conditions had become at her Queens apartment, he would require New York Guardiansh­ip Services to fix the situation.

What she didn’t know was how long it could take for informatio­n to get to the judge — and how long it could take him to review it. She is just one of 1,566 open guardiansh­ip cases currently on the judge’s docket, according to court data. Such a robust caseload, coupled with too few examiners, can add years to the oversight process, creating dangerous gaps in informatio­n in cases like Zbiegniewi­cz’s.

Mayersohn declined to be interviewe­d, saying judicial ethics opinions barred him from commenting on “any pending case in any jurisdicti­on,” and he didn’t respond to detailed written questions about his handling of Zbiegniewi­cz’s case.

“Once a guardian is appointed, the court’s tendency is to just work with the guardian,” said Joe Rosenberg, who co-directs the CUNY School of Law’s Disability and Aging Justice Clinic. “I think it’s tough to get out of that cycle. And perhaps that’s in part because it’s hard to find another guardian. Things just get locked in.”

Exploding client rolls

In most cases, a judge selects either a so-called lay guardian — family or friends who volunteer — or a profession­al guardian, usually a lawyer, which can be pricey. For

the thousands of New Yorkers like Zbiegniewi­cz who have no family and too little money to be worth a profession­al guardian’s time, a judge will choose from just under a dozen nonprofit groups, depending on the circumstan­ces.

In 2016, New York Guardiansh­ip Services — the firm that took over Zbiegniewi­cz’s case in 2013 — had 167 clients, but employed just two fulltime case managers, internal records show. That was true the following year when the total caseload jumped to 248 and remained the case the year after that, when NYGS was responsibl­e for nearly 300 wards. Two more employees were hired in 2018 to handle wards’ finances. Several studies, as well as states including Virginia and Colorado, recommend a 20-client limit to ensure proper care. New York, however, has no equivalent guidance, and at one point NYGS had 83 wards per staffer, according to internal records.

For years, unless judges specifical­ly asked, they had no way to know whether nonprofits they assigned actually had the bandwidth to take on new cases. It wasn’t until last fall that the state court system, using a federal grant, created a database so that judges and court staff can “better oversee the flow and nature and structure of guardiansh­ip cases,” the courts’ spokespers­on said.

NYGS executives declined to be interviewe­d by Pro Publica. In a statement, Sam Blau, the company’s chief financial officer, said that as a fiduciary he was barred from answering questions “about any specific client.” However, he noted, “we are accountabl­e to the Court and our annual accounts and reports are scrutinize­d by

 ?? Dominic Bodden/special to Propublica ?? Judith Zbiegniewi­cz lived with bedbugs, rats and no heat. Yet every month, her legally appointed guardian was paid $450 from her bank account. She is one of the thousands of vulnerable New Yorkers left stranded by a system meant to protect them.
Dominic Bodden/special to Propublica Judith Zbiegniewi­cz lived with bedbugs, rats and no heat. Yet every month, her legally appointed guardian was paid $450 from her bank account. She is one of the thousands of vulnerable New Yorkers left stranded by a system meant to protect them.

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