The Last Safety Net
For most of her 70 years, Miss Natalie, as she's affectionately called, lived as a semi-recluse, pursuing a life of guarded eccentricity in a modest home on the southeast edge of the Fourth Ward. But soon after the death of her domineering, overly protective mother, her eccentricities gave way to self-endangerment.
Three and a half years ago, Miss Natalie was hospitalized after one of her six dogs bit her. While she was recuperating, medical and Harris County authorities concluded that she was no longer capable of managing her own affairs. Suddenly, the aged woman found herself and her possessions controlled by an employee of the county's fledgling Guardianship Program.
Shortly after the county placed her in a small boarding facility for the elderly, thieves broke into Miss Natalie's vacant home and stole expensive sterling and jewelry. In the opinion of her attorney, Miss Natalie's inexperienced county-appointed guardian had not taken adequate precautions to secure the woman's house and valuables. The attorney also believes that stress related to the break-in accelerated Miss Natalie's decline into a near-vegetative state.
Last year, a lawsuit was filed on Miss Natalie's behalf against the social worker and the county. But early this year, a county probate judge threw the suit out, ruling that even if the social worker/guardian had been negligent, as a county employee, he was immune from liability under state law.
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In other words, though Miss Natalie never wanted a guardian, and though the one that was forced upon her allegedly bungled her affairs, no one can be held responsible for her loss.
Although she was unsuccessful in court, Miss Natalie's case focused outside attention on the flaws of the county's alarmingly overburdened Guardianship Program. It's a program where county employees are saddled with caseloads double the number recommended when it was established. It is also a system in which no one can be held ultimately accountable -- at least not monetarily -- if something goes wrong.
In January 1992, Harris County created a tax-funded agency to provide guardianships for its incapacitated indigent; that is, for people who lack the mental or physical wherewithal to run their own lives, and don't have family members willing or qualified to run their lives for them or the money to pay someone else to care for them and their things. The county is nearly alone in providing the service: with the exception of Galveston, all other counties in the state either use volunteers to deal with the problem, or simply don't deal with it at all.
The Guardianship Program was created with the best of intentions. Prior to 1992, if a Harris County resident was found unable to manage his affairs and was basically without resources, a probate court judge would appoint an attorney ad litem to serve as guardian, at no cost to the person who needed assistance. The county paid the attorney's fee. But in June 1991, a series of articles by Houston Chronicle reporter Nancy Stancill pointed out that the legal practices of some attorneys in Harris County were composed almost exclusively of ad litem guardianship appointments. A few attorneys with multiple guardianships, Stancill's stories noted, were pulling down close to $100,000 a year through the system.
That same year, state Senator Mike Moncrief of Fort Worth conducted hearings around the state about the guardianship problem in Texas. In those hearings, Harris County's ad litem guardianship method was criticized extensively.
"It wasn't working worth a damn," recalls Moncrief. "It appeared to be, in essence, a brother-in-law operation where ad litems who were close acquaintances to some of the judges who made those appointments were getting the lion's share of the appointments. There also appeared to be very little, if any, interaction between the attorneys and the wards themselves."
In the wake of the Chronicle series, Commissioners Court ordered the county budget office to conduct its own investigation of the cost and effectiveness of ad litem guardianships. The resulting study showed that during the previous fiscal year, the county paid $1.8 million to ad litem attorneys in guardianship cases -- up from $360,470 just three years earlier. The report also pointed out that there was little consistency in the manner in which the four probate court judges awarded fees to the attorneys. Additionally, the study questioned whether attorneys had enough social-work expertise to serve as guardians. The preparers of the report said they couldn't reach more definitive conclusions because the probate courts had failed to maintain sufficient data.
In November 1991, in what the probate judges now contend was a hasty rush to reform, Commissioners Court voted unanimously to create a guardianship program under the umbrella of the county's Department of Social Services. No longer would the county pay for the future appointment of attorneys as guardians, the commissioners decided. Instead, beginning in January 1992, county-employed social workers would handle all new indigent wards. Additionally, the county instructed the probate court judges to begin phasing out all of the old ad litem appointments and to transfer the existing guardianships to the new Guardianship Program.
Unfortunately, four and a half years after its creation, the Harris County Guardianship Program has not proven to be much of a change for the better. In addition to the new questions, such as accountability, that have arisen, the old questions -- such as how much the program costs -- remain. The Guardianship Program's funding is part of the Department of Social Services' budget, which, department officials say, is not broken down by its various divisions. The county budget office is currently conducting yet another study to determine how much indigent guardianships cost Harris County taxpayers.
Perhaps most critical, county social workers now handle twice the recommended caseload. When the Guardianship Program was founded, probate judges urged that the ratio not exceed 30 indigents to one caseworker. By comparison, Galveston County's ratio is approximately 15 to one. But today, 15 Harris County social workers are responsible for more than 900 guardianships. That's a ratio of more than 60 to 1. And the current caseload could soon increase.
Last December, Attorney General Dan Morales ruled that the county had no responsibility to continue paying private attorneys to serve as guardians ad litem. Nevertheless, according to the County Attorney's Office, private attorneys remain the guardians of close to 300 indigent people in Harris County, and the county continues to foot the bills. Those cases may soon be dumped in the lap of the already swamped Guardianship Program.
"You do get to the point where too many is too many," says Judge William McCulloch, one of the county's four probate court judges. "The commissioners are going to have to start focusing on the care rather than the cost a little more if they are going to be in this business. And they are going to have to realize that it may be a little more costly than they thought."
The hallways of the well-kept nursing home on the North Loop are lined with its elderly residents. With their pained facial expressions of panic and confusion, many of them resemble wheelchair-bound extras from Night of the Living Dead -- starved, not for human flesh, but for attention and a lucid moment.
In a common area of the nursing home, several of the more energetic residents belt out a monotone version of "Rock of Ages." Miss Natalie, looking freshly scrubbed and with her white hair up in a bun, sits in a wheelchair and, with her one good eye, stares blankly at things no one else can see.
"Miss Natalie!" says her current guardian, attorney Georgia Akers, half-yelling to get the 74-year-old woman's attention. "How are you today, Miss Natalie?"
"Yea-a-a-h!" screeches Miss Natalie, as if out of reflex, before slipping back into the furthest recesses of consciousness.
An only child, Miss Natalie worked for years in an accounting job for Southern Pacific Railroad, and was a member of the Daughters of the American Revolution. But she was already a senior citizen herself and still living at home when her mother -- her last surviving close relative -- died in the late 1970s. Even then, friends report to her current guardian, Miss Natalie was "mentally fragile." The matriarch's passing left Miss Natalie ill prepared to fend for herself. Unfortunately, her predicament would go undetected by society for years.
In December 1992, Miss Natalie was taken to Ben Taub Hospital after she was bitten on the leg by one of the dogs that lived with her at 2609 Bagby. The bite wounds were not serious, but the concerns of hospital officials about her mental health and ability to manage her own affairs were. They informed the Harris County probate courts -- which oversee guardianships -- of their reservations about discharging Miss Natalie without court-ordered supervision.
As in every request for a court-appointed guardianship, a court-authorized investigator was dispatched to evaluate Miss Natalie's living conditions and her ability to take care of herself. The inspection validated the hospital's concerns.
Inside Miss Natalie's flea-infested home, the investigator found a half-dozen dogs and several cats. The floors were caked in animal feces. There was no food in the cupboards or refrigerator. It was almost impossible to move through the house because of the tons of stuff stacked in piles on the tables, chairs and floors. Miss Natalie and her mother had been pack rats, throwing nothing away. Clothing on hangers still showed price tags from the 1950s.
The investigator recommended emergency measures, and Miss Natalie was placed under a temporary guardianship. By then, the county had abolished the practice of appointing attorneys to serve as guardians. So John Booth, a social worker from the guardianship program, which had been created by Commissioners Court 11 months earlier, was assigned to oversee Miss Natalie and her estate.
According to Georgia Akers, the lawyer who represents Miss Natalie, Booth's background was in youth ministry. "He was among the first wave of county social workers," says Akers. "I think they thought they would be just true social workers. They thought they would just go out and check on people and didn't realize all the legal ramifications."
Under the Texas probate code, a temporary guardianship is valid for 60 days. During that time, Booth was required to perform several duties for his new ward. First, he was obliged to be bonded for an amount set by the judge -- in this case $3,000. Booth was also required to take control of Miss Natalie's financial accounts and to make sure her bills were paid. Additionally, it was his job to secure any assets and property Miss Natalie had and to file an inventory of the valuables with the court.
At the end of the initial 60-day period, a person who has been placed under a temporary guardianship either regains the right to manage her own affairs or is placed under a permanent guardianship. Despite Miss Natalie's objections, the judge in her case -- Probate Judge William McCulloch -- decided that she needed full-time supervision.
But, while serving as her temporary guardian, Booth had discovered that Miss Natalie owned considerable assets, including her house and, according to a professional appraisal, at least $18,000 worth of items inside her home. Booth reported his findings to McCulloch, who concluded that because of her assets, Miss Natalie was not eligible for the county's indigent guardianship program. Instead, the judge decided Miss Natalie should have a private guardian.
When Miss Natalie was made a temporary ward of the county, she had contacted Georgia Akers -- whose area of practice includes guardianships and elder law -- in hopes of avoiding a permanent guardianship. But in order to prevent a permanent guardianship, Akers says a doctor would have had to determine that Miss Natalie was capable of handling her own affairs.
"Obviously, in this case," says Akers, "no doctor was going to do that. She was too far gone both mentally and physically to ever live alone."
Akers had visited Miss Natalie several times and developed a good relationship with her. Though the lawyer could not block the guardianship, she agreed -- at Miss Natalie's request -- to serve as the woman's permanent trustee. So, in February 1993, Akers undertook her own assessment of Miss Natalie's estate, which she would have to liquidate to pay for the supervised care Miss Natalie needed.
On February 8, 1993, Akers met John Booth at Miss Natalie's unoccupied home on Bagby. According to a deposition by Booth, on a previous visit, as part of his effort to secure the house, he had placed a padlock on the barred exterior back door. But when Booth and Akers arrived at the house that Friday, they found the barred door open. And the interior back door that led into the house was off its hinges.
After examining the inside of the house, Booth determined that a large amount of sterling silver and a box of jewelry were missing. During his deposition, Booth testified that it had not previously occurred to him to a) remove the valuables from the house and place them in the department's safe room, where the valuables of wards are stored; b) take out insurance on the items; or c) have his $3,000 bond increased to cover their value in the event they were lost or stolen.
"The house had not been disturbed before that time," stated Booth in the deposition. "I felt like the best place would be to keep it there with her possessions."
Akers, obviously, takes issue with Booth's decision and contends that the social worker/guardian should have either removed the valuables from the house or have taken more precautions against a break-in.
"He could have gotten better locks or left the lights on," says Akers. "Or the jewelry and the silver could have easily been taken to the county's safe room."
Following her release from the hospital that same month, Miss Natalie was transferred to a boarding house for the elderly, where she was able to maintain a bit of independence and was allowed to have one dog. It fell to Akers to report the burglary to Miss Natalie.
Not long afterward, Miss Natalie began to deteriorate quickly and was moved to a nursing home, where she turned inward. Akers, of course, is no doctor. But she believes the stress of being uprooted, placed in a guardianship, then having her jewelry and silver stolen was too much for the elderly woman, who previously had at least been able to communicate her wishes.
"Something snapped with her," maintains Akers. "She probably recognizes me, but I don't think she knows who I am."
After the burglary, Akers set about selling off what remained of Miss Natalie's possessions to pay for her care (which is also covered, in part, by her railroad retirement money and Social Security). An estate sale netted $62,000 -- $44,000 more than the estimate that Booth oversaw. Miss Natalie's home was sold for $35,000.
In December last year, Akers, on Miss Natalie's behalf, filed suit against John Booth and the county Department of Social Services. And though Judge McCulloch would eventually rule that both Booth and the county were immune from liability, the jurist now says his ruling came from his head, not his heart.
In a windowless blond-wood courtroom in the Harris County Family Law Center, a small, thin man in a black robe demonstrates extraordinary patience. Seldom does he interrupt the testimony of the members of the 92-year-old woman's family as they explain the various sides of their tale of distress and dysfunction.
On this morning, an assistant county attorney has made a motion to have the woman placed in the custody of the Guardianship Program. According to the courtroom testimony, the elderly woman had been living with her grandson, whom she had raised since birth. He apparently paid her back by letting insects feast upon her. Neighbors, the woman's 67-year-old daughter testifies, recently called police to her estranged mother's home, where the woman was discovered naked in her bed and covered with ant bites. Strangely, this morning the motion to have the woman placed in the county's custody is challenged by the 47-year-old grandson.
"How did this all get started?" asks the attorney for the daughter, who favors having her mother placed in the Guardianship Program.
"Well, it started when I came home from the hospital with my baby boy and she took him from me and never gave him back," replies the daughter.
"Let's not go back quite that far," says the attorney.
The judge puts a hand to his head, his patience wearing thin, but says nothing. To Judge William McCulloch, it's all just another Friday-morning guardianship docket in Probate Court No. 4.
"People ask why we just don't appoint family members as guardians in these cases," the judge says later. "Now you know why."
After listening to about 45 minutes of conflicting testimony about which family member actually treated the 92-year-old woman the worst, McCulloch finally grants the county's motion and the woman's affairs are turned over to a female social worker so young she still suffers from acne. As he has done hundreds of times a year for the past four and a half years, McCulloch utilizes the services of the Guardianship Program. These days, however, he does so reluctantly.
McCulloch faced a dilemma earlier this year in determining the outcome of the lawsuit Georgia Akers brought on behalf of Miss Natalie. The suit was filed in McCulloch's court because he was the judge who had ordered that Miss Natalie be placed under a guardianship. Last February, the judge ruled that, according to state law, Booth and Harris County were immune from liability in Miss Natalie's case. When contacted by the Press, Booth, who has since left the program and the Houston area, would say only that he did the best he could on Miss Natalie's behalf.
McCulloch's decision could deter other similar suits from being filed against the county. But just because he made the ruling doesn't mean McCulloch is proud of it.
"One of the problems that you have as a trial judge," he says, "is that you have to apply the laws that exist and not the way you wish the law was. To be honest with you, I went into the thing against governmental immunity. I was not trying to find a way to grant it. But after reading the case and the law, I just felt like I had to do what I did."
According to McCulloch, his decision stemmed from a 1994 Texas Supreme Court decision in which the high court held that a government worker could only be held liable if, says McCulloch, "no reasonable person would have done what [Booth] did."
"I just felt like I couldn't go that far," says the judge.
Akers says she has no plans to appeal McCulloch's ruling -- it would deplete Miss Natalie's financial resources to do so -- but calls his explanation a political cop-out. Surprisingly, McCulloch says he wishes Akers would appeal -- "because an appellate court has the ability to come in and say, 'We don't think this is right.' "
On a Friday morning in July, about 50 people occupy half of the folding chairs in the lobby of a long, gray building. The visitors to the Harris County Department of Social Services wait patiently to be helped with their current financial, transportation or medical emergencies by a caseworker from one of the department's several divisions. The building, located at the corner of Jensen and Tidwell in the heart of the Fifth Ward, is also home to the department's Guardianship Program.
Diane Webb has been in charge of the program since its inception in 1992 and during that time has seen her staff expand from six to 15 caseworkers. Webb acknowledges that the staff expansion has not kept pace with the increase in people needing guardianships, but she maintains that the job is getting done.
"We need more people," she says, "but the wards are being handled."
In addition to an increase in staff and workload, Webb has also overseen significant policy changes -- changes that, according to former employees of the program, were imple- mented in response to Miss Natalie's lawsuit.
"There was an incredible state of paranoia in the department," says one former caseworker (who, like all of those who spoke with the Press, did so on the condition of anonymity). "They were really worried there would be other suits."
The changes to the program indeed seem calculated to protect the county from lawsuits, rather than provide better service to the wards. First, individual caseworkers can no longer be the legal guardians for any of the wards. Instead, the Guardianship Program itself acts as a sort of super-guardian responsible for overseeing the affairs of all its beneficiaries. And at the request of Harris County, during the last session of the Legislature, lawmakers abolished the requirement that guardianship caseworkers be bonded.
Secondly, wards are no longer assigned to specific caseworkers. Rather, there are now four teams of caseworkers. The workload is divided among those teams, with each team coordinating with one of the four probate courts. The team members now rotate jobs, such as finding housing for the wards, securing their assets and making the required monthly check on each ward.
Additionally, more emphasis is being placed on the secure storage of valuables.
Webb would not comment directly on the lawsuit or on whether the changes in the program's policies were made as a result of it; she referred all queries on that subject to the County Attorney's Office. But on the general issue of immunity, Webb says that neither the county nor its social workers should have to worry about being sued.
"I feel our workers are the same as policemen," says Webb. "We are doing a service for the community. We are the last safety net."
Mary McKerral, chief of the County Attorney's real estate and guardianship division, flat out disputes the contention that either Booth or the county were negligent in Miss Natalie's case. She compares the social workers of the Guardianship Program to firefighters who get water on someone's furniture while extinguishing a house fire.
"They are performing an essential function for these people," argues McKerral.
Judge Guy Herman, who has been following the case with interest from his probate bench in Travis County, disagrees. Herman says Miss Natalie's case has attracted the attention of probate judges and attorneys across Texas. He was surprised to learn that there are no plans to appeal McCulloch's ruling because he does not believe that there is any clear-cut precedent in case law insulating a county from liability incurred through a guardianship program.
"It seems to me that a governmental agency has the same duty as any individual guardian to protect and maintain someone and their property," says the judge. "I just don't see that there's immunity there. And I think if that case was appealed, you might get a different result."
Former caseworkers say morale is definitely a problem within the Guardianship Program. Specifically, they say the goal of visiting each ward once a month is achieved on the backs of the caseworkers and at the expense of the wards.
"You tried the best you could," says a former social worker who spent more than two years in the program. The former caseworker agrees with Webb that he and his co-workers did indeed make all of their monthly visits, but says that goal was met because the caseworkers made the visits on their own time.
Even then, says the former caseworker, there was not enough quality time spent with each ward to find out who they were and what they needed.
"It takes a lot of time," says the ex-county employee, "just to establish that rapport with them. Then they'll open up to you so that you can solve a lot of their problems. But there just wasn't time to do that."
Another former employee, who worked as a guardian for a year, says the suffocating caseload made decision-making in the program akin to triage in a MASH unit.
"I mean, you got one guy who needs a new set of teeth, but this other guy needs his leg amputated," she recalls. "It was that sort of thing. Some people would be put on the back burner until we could get to them. It was really unfair to the clients."
She, too, claims to have worked weekends to make sure that each ward received his monthly visit. She also alleges that department officials strongly discouraged caseworkers from filing for comp time or overtime pay.
"I felt like it was the lesser of two evils for me to not get my comp time than for these people not to be visited," she says.
And while most of her co-workers shared her dedication and moral responsibility, a few, she says, did not. One case in particular made a lasting impression on her.
"There was a client who needed to be visited because he had bedsores," she recalls. "And it went for a week and a half before that client was finally visited. And that client actually almost died because of the toxicity of the poison in his system. And the nursing homes are just as backed up as we are. So, unless we keep an eye on these people, no one else is going to be looking out for them either. It is our responsibility to make sure these people are being taken care of."
Diane Webb emphatically denies that social workers are forced to work overtime without compensation.
"That's just not true," she says. "Now, from my own standpoint, I do like to see people go home."
Webb does not deny that some caseworkers put in more than 40 hours a week. And though there is no overtime pay, Webb insists that any caseworker who works overtime is entitled to comp time.
County officials say they haven't a clue as to the turnover rate at the Guardianship Program, although they acknowledge that none of the original six caseworkers are still with the program. And no one at the Department of Social Services claims to know how much it costs the county to operate the Guardianship Program.
"HCDSS has no separate budget for the Guardianship Program," was the county's answer to an open records request by the Press for budget figures.
If that's true, perhaps the department should take a look at a study published last November by Harris County Auditor Tommy Tompkins. According to the report, between June 1994 and May 1995, the Department of Social Services had a budget of approximately $6 million. Of that figure, just less than $850,000 was used by the Guardianship Program, which does not include the fees the county continues to pay to ad litem guardians.
"The commissioners think they are saving a lot of money, but a lot of the costs are hidden," says Judge Jim Scanlan, who presides over Probate Court No. 3. Scanlan believes that the combination of the program's mounting caseload and its immunity from liability is a potential recipe for disaster. The situation gives him and other probate judges serious reservations about continuing to assign new cases to the Guardianship Program.
"I think the program's social workers are doing the best they can, but I am concerned because they are totally immune," adds Judge Mike Wood of Probate Court No. 2. "And as it gets to the point to where they are perhaps not able to do what they need to do, then I'm going to have to consider whether or not I can continue to appoint them."
When the Guardianship Program was launched, the probate judges recommended that the ratio of guardians to caseworkers not exceed 30 to one. That ratio was derived out of the general consensus from the statewide hearings held by Senator Moncrief back in 1991.
However, not everyone accepts the 30 to one ratio as guardianship gospel. A soon-to-be-released study of the entire Department of Social Services by the county budget office is expected to pinpoint exactly how much money is being spent on the Guardianship Program. It will also contend that, given the current caseload, the program already has an adequate number of caseworkers to do the job, but that existing caseworkers spend too much time doing paperwork. The report will recommend bringing on five or six additional caseworkers to handled the 278 extra guardianships that private attorneys will soon hand back over to the county. But those social workers will come from other areas of the Social Services Department -- not from new hiring.
One person involved in preparing that report says the program is saving money compared to the old system of appointing attorneys to serve as guardians. The problem, he says, is that it's hard to document the savings due to the difficulty of retrieving budget information about the Department of Social Services.
"These people are living in a paper world nightmare," the person connected to the study says. "Anything you ask for, it comes out in paper as if they own stock in a paper mill. We're sitting over here saying, 'Hey, why don't you become more modern? We've got computers now.' "
Although the report is not in its final, official form, the study will recommend that the Social Services Department be brought on-line. It's hoped that reducing paperwork would increase efficiency and improve morale.
"We have a society that abandons its old people," says Judge Mike Wood. "The question is, how much can the county spend to take care of these people?"
In most other metropolitan Texas counties, including Dallas, Travis and Tarrant, indigent guardianships are assigned to volunteers coordinated by nonprofit organizations. Wendy Shaefer, a probate attorney in Travis County, believes volunteer programs with a one-to-one ratio of guardians to wards are the only way to insure that incapacitated people get they help and attention they need and deserve. The government, says Shaefer, should not be in the guardianship business. "Because if it is," she says, "you are always subject to the whims of the budget office and politicians who want to cut social services. Because, after all, anyone who needs social services must be a deadbeat."
During the last session of the Legislature, Senator Moncrief sponsored a bill to create a nonprofit guardian resource board that would have provided seed money to help set up volunteer programs around the state. The measure was vetoed by Governor George W. Bush. Undaunted, Moncrief plans to introduce a similar bill when state lawmakers reconvene this coming January, and this time, he is expecting the governor's support.
The idea of volunteer guardianships for the incapacitated indigent has never received much consideration by Harris County officials. And lately, county commissioners have been preoccupied with trying to find a way to build Drayton McLane a new baseball stadium. But they at least acknowledge that the Harris County Guardianship Program needs some attention.
"There's no question that [the caseload] is a lot higher than we'd like to see," says County Judge Robert Eckels, who was not a member of the Commissioners Court when the program was created.
Precinct 1 Commissioner El Franco Lee is more emphatic: "We're defeating the whole purpose of the change if we don't address this problem."
One former employee of the program says that attention is imperative. "Most of the wards don't have any money or any family that cares about them," he says. "This program could be an answer to a lot of problems, but the county is not willing to spend the money and not willing to hire the people to do the job. They have no clue as to what's going on out there.
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