Alaska Supreme Court decides wards can sue conservators

Posted: Monday, September 09, 2002

FAIRBANKS - A recent Alaska Supreme Court decision allows an Anchorage woman to sue the state Office of Public Advocacy, alleging case workers improperly managed her money.

Some interpret the unanimous decision to mean the state agency that manages the affairs of elderly or vulnerable Alaskans can be sued for allegations of mismanagement. That would make the government entity legally liable for the same standards private firms face.

The Aug. 30 decision reversed a lower court ruling that maintained OPA was immune from lawsuits because of its status as a state agency closely related to judicial functions.

Susan Trapp, an Anchorage woman whose financial affairs were handled by an OPA conservator since 1995, filed a lawsuit in Anchorage Superior Court in 2000. She alleged OPA case workers withheld Social Security funds she needed to pay for food, shelter and clothing and told other social service agencies not to help her.

The Anchorage court dismissed the lawsuit, ruling Alaska law does not allow wards to sue state conservators. Trapp appealed the decision.

The Supreme Court interpreted the law differently, ruling "conservators are not shielded by absolute quasi-judicial immunity." The decision allows Trapp to proceed with her lawsuit.

The decision also means OPA is subject to other lawsuits, said Assistant Attorney General Venable Vermont.

The ruling represents a leveling of the playing field between private and government guardianship agencies, said Candy Carroll, the most recent director of the now-bankrupt private firm Citizens Advocacy Project of Alaska. While private firms have been criticized for allegations of cheating their clients, OPA's government status has allowed it to elude such scrutiny, according to Carroll.

"No one could ever touch them," she told the Fairbanks Daily News-Miner.

The trustee representing former wards of CAPA is suing Carroll and other former directors and employees of the Fairbanks-based operation on allegations they scammed money from their clients by blatantly stealing from wards' accounts and other fraudulent practices.

While legal action has often been the mechanism that monitors private firms, Vermont said other methods have always existed to safeguard OPA's wards.

Specifically, he said OPA is subject to legislative audits, while private firms are not.

OPA has faced at least two of these audits since the Legislature created the public guardian portion of the office in 1984 to care for Alaskans who can't manage their finances, health care or other aspects of their life because of old age, mental illness, brain injuries or other conditions.

A 1992 audit concluded OPA was failing to protect clients' money, keep proper financial records or failing to distribute interest earned from clients' accounts back to the clients in a timely manner.

A 1999 audit expressed concern about one of OPA's guardianship functions: monitoring court-appointed guardians.

The audit called it "an inherent conflict of interest" to have an agency appointed by the court to provide guardians and monitor those guardians.

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