Lawmakers eye tighter oversight on guardianships

Tue, 10/31/2023 - 10:30am

    State lawmakers are considering more intensive oversight and frequent reviews of guardianships after eight adults in state care died in unexplained ways.

    Members of the Health and Human Services Committee questioned state officials with the attorney general’s office, medical examiner’s, disability services and a probate judge about changes needed in the state’s guardianship system during a 3 ½ hour meeting in Augusta on Wednesday. 

    Leaders across the agencies said better communication between Adult Protective Services and the probate courts when there is a suspicion of abuse, neglect or exploitation, training for guardians, time limits on guardianships, and more frequent reports would be most helpful.

    But the lawmakers said the eight deaths that occurred in public guardianship did not need further review.

    “I’m satisfied with what we heard today from both the attorney general’s office and from the department,” said co-chair of the committee Rep. Michele Meyer (D-Eliot) in an interview after the meeting.

    The hearing was held after The Maine Monitor reported that eight adults under public guardianship died in unexplained ways in the past three years.

    State medical examiners said the deaths had “undetermined” circumstances, while noting that over-medication was the cause of several of those deaths. Among them is a woman whose death was deemed a “homicide” by medical examiners. The state attorney general’s office has decided not to prosecute anyone for her death.

    The unexplained deaths were part of the Monitor’s ongoing investigation into Maine’s part-time probate courts.

    State lawmakers responded to the article with alarm and frustration that they had not been informed about these deaths. Sen. Joe Baldacci (D-Bangor), who also chairs the committee, said the eight deaths show a need for more oversight of the state’s public guardians, who are appointed and overseen by 16 part-time, elected probate judges. 

    Public guardians are a “last resort” for people that cannot safely make decisions on their own and have no family to care for them, Director of the Office of Aging and Disability Services Paul Saucier told lawmakers on Wednesday. 

    In 2022, there were 1,368 adults under public guardianship of the state. The majority of the people had multiple chronic conditions, and 60% were age 59 or older, Saucier told lawmakers.

    Their care is overseen by public guardians, who are employees of the Department of Health and Human Services — or DHHS. The guardians make medical, financial or social decisions for people who are incapacitated by age or because of disability. 

    “We recognize the pain and grief that the deaths of these individuals have caused to those who knew and cared for them,” Saucier told lawmakers.

    He acknowledged the role his office plays in protecting the health and safety of adults under public guardianship.

    State medical examiners identified the eight cases while stepping up their review of deaths of adults with public guardians between 2018 and 2023. DHHS was reporting an increasing number of public guardianship deaths at that time. Medical examiners deemed most of the more than 200 deaths in that period to be natural or accidental.

    DHHS by law is supposed to tell lawmakers on the Health and Human Services Committee each time it reports a death to the medical examiner’s office, but that has not happened in the 26 years since the law took effect, The Maine Monitor revealed in September.

    Meyer and Baldacci said in an interview after the meeting on Wednesday they expected DHHS to begin making the required reports to the committee.

    In the long-term, Meyer and Baldacci said they may look to shift the responsibility of reviewing public guardianship deaths onto the newly formed Aging and Disability Mortality Review Panel. The panel would review the deaths, look for patterns and include their findings in a yearly report to the committee.

    “It makes sense for these reports to go to them, and they can vet it better than us. All they’re going to tell us is how they died, whereas this entity may be able to gather more information and provide some more insight into what happened and to tell us whether or not there’s any red flags that need to be looked at,” Baldacci said.

    ‘Meaningful and manageable’

    Judge Libby Mitchell, of the Kennebec County Probate Court, told lawmakers that more frequent reporting by guardians would improve oversight of guardianships statewide. 

    In particular, if Adult Protective Services within DHHS receives a report of possible abuse, neglect or exploitation and the person is in a guardianship, she wants to know about it, Mitchell said.

    Guardians are currently required to file an annual report to the probate judge about the care of the person under guardianship. Mitchell suggested public guardians make interim reports or that the reporting window be reduced to more than annually.

    Still probate judges will need to find a balance between a burdensome amount of reporting by guardians and being alerted of potential concerns, Mitchell said.

    “I don’t want to deal with everyone, every minute, but I do want to know when there’s a suspicion of a problem,” Mitchell said in an interview.

    Mitchell, a Democrat, served 18 years in the Maine House of Representatives and six years in the state Senate. She held the top position in each chamber serving as President of the Senate and the first female Speaker of the House. Mitchell was elected in 2016 to replace her husband Jim Mitchell as probate judge of Kennebec County following his death that September.

    Saucier said he is open to talking with the probate courts to find a “meaningful and manageable” way to share information between Adult Protective Services and the probate courts.

    The state does not routinely share that information with the probate courts currently, Saucier said. 

    No further investigation of eight deaths

    Over-medication, septic complications of prolonged immobilization, and blunt force trauma were among the causes of death for the eight people under public guardianship that the Monitor reported on.

    “We’ve reviewed those eight cases very carefully, and collectively they had serious chronic conditions,” Saucier said. “… The cause of death was ‘undetermined’ and that’s always serious and worthy of further review. It doesn’t necessarily mean that there was any wrongdoing in any of these cases.”

    Members of the Health and Human Services Committee said Wednesday they are satisfied with the state’s findings that there was no wrongdoing in any of the deaths. Several lawmakers said no further investigation of the eight deaths was needed.

    Rep. Kathy Javner (R-Chester) has served on the committee for six years. During that time, several areas of DHHS have needed better oversight, including public guardianships, she said in an interview. 

    “As far as continuing an investigation into these eight deaths, I would say that perhaps no. Simply for the fact that it seems as if the department has looked at them (and) law enforcement,” Javner said.

    Maine State Police have had an open case for 30 months into the death of Laurie Wall, a woman in state care with cerebral palsy and a “profound” mental disability who died from “acute intoxication” of the combined effects of three medications.

    Wall died “unexpectedly but peacefully at home,” according to her obituary. The state medical examiners later determined that “the combined effects of levetiracetam, fluoxetine and lacosamide” — three prescription medications — had caused her death. Her death was classified as “undetermined.”

    State police’s investigation of Wall’s death is complete and it is finalizing its report, which is not yet publicly available, spokeswoman Shannon Moss wrote in an email on Tuesday.

    Among the eight unexplained deaths is also Janice Sirois, 61, who died in a Fort Kent health care facility in August 2022. Medical examiners reported that her death was a “homicide,” records show. 

    The attorney general’s office closed the homicide case without prosecution due to insufficient evidence, spokeswoman Danna Hayes said in late August.

    Deaths are classified as a “homicide” by medical examiners if a person dies from the willful act of another person, said Office of Chief Medical Examiner administrator Lindsey Chasteen, who spoke to lawmakers on Wednesday. 

    “Just because we said it’s a homicide, does not mean that it was a criminal act. And identifying that criminal act might prove difficult,” Chasteen said.

    The committee chairs said after Wednesday’s meeting they did not think the eight deaths needed to be investigated further.

    “She (Chasteen) answered the question that if there was any kind of foul play or suspicion it would be reported to the attorney general’s office,” Baldacci said in an interview. “I have confidence in the medical examiner following the law.”

    A legislative path to better oversight

    Maine lawmakers have proposed multiple ways to address the problem of oversight of public guardians by DHHS and the probate courts:

    • Baldacci has a bill currently pending with the state Legislature to add to DHHS an independent “inspector general” with the power to investigate complaints, subpoena for records and access DHHS documents. The inspector general would report concerns to law enforcement, the attorney general, or licensing agencies. The bill currently only deals with children in state care, but Baldacci is considering an amendment to add oversight of the approximately 1,200 adults under public guardianship in Maine as well.

    • Sen. Lisa Keim (R-Dixfield) has proposed breaking DHHS apart into smaller state agencies. A bipartisan coalition of lawmakers have supported a similar proposal to separate the Office of Child and Family Services from the rest of DHHS. The separation was proposed by then-Sen. Bill Diamond (D-Cumberland) in 2021 following multiple child fatalities and again in 2023 by Sen. Jeff Timberlake (R-Androscoggin). The Legislature may consider Timberlake’s bill in 2024.

    • Donna Bailey, former probate judge for York County and current state senator, said lawmakers should consider reestablishing the Office of Advocacy within DHHS. The office, which was eliminated by then-Gov. Paul LePage in 2012, employed a Chief Advocate and a team of advocates who looked out for the interest of people receiving state services.

    • Bailey also said it would be appropriate for lawmakers on the Government Oversight Committee to investigate the eight deaths identified by the Monitor.

    Unresolved is a half-century old mandate from the voters to overhaul Maine’s probate courts.

    Probate judges are the only elected judges in Maine. Each county funds and operates a probate court with an elected register and judge. The probate courts are responsible for estates, guardianships of adults and minors, conservatorships and name changes.

    Voters 56 years ago amended the state constitution to set up a new probate court system with full-time judges. The constitutional amendment never went into effect, because it was contingent on legislators passing a plan to transition to a new court system, the Monitor reported.

    State lawmakers, probate judges, lawyers and a state supreme court justice undertook a large review of the probate courts in 2021. The study recommended the probate courts be integrated into the state judicial branch with nine appointed judges dedicated to probate. The plan was approved but never funded or implemented. 

    ​​“At some point the Legislature is going to have to find the political will to do something that establishes a probate court system that hires full-time judges, because that’s what the constitution has told the Legislature to do,” Sen. Craig Hickman (D-Winthrop) previously told the Monitor.

    Mitchell, who served on the study group, said the probate courts are working as they are currently structured. The Legislature can work on reforming problems with the current system, rather than the reorganization of the probate courts into the judicial branch, she said in an interview.

    “If the Legislature has not acted on it, there’s not a crisis out there,” Mitchell said in an interview. 

    Lawmakers may be limited in what they can accomplish to reform the probate courts and DHHS during the 2024 legislative session. 

    The constitution restricts legislators to working during the second session to only matters of the: budget, “Governor’s call,” emergency legislation, bills referred to committee for study and report during the first session or by written petition of the electors.

    “I’m going to take in all the suggestions, and I need to think about how best to approach it,” Baldacci said.​