Alaska’s top court says public agency can’t decline guardianship appointments

A public agency’s refusal to accept new guardianship cases violates state law, according to an Alaska Supreme Court order issued Friday.

The Office of Public Advocacy, or OPA, is charged with serving as public guardian for incapacitated Alaskans who do not have a relative or acquaintance to serve in the role and lack the ability to find or pay a private guardian. Public guardians make all important decisions for their clients, including on health, finances and housing. Many of their clients rely on public benefits to meet their basic needs. Some struggle with homelessness.

But in April, the public agency told Alaska courts that it “cannot accept any new guardianship and conservatorship appointments until further notice” due to an “untenable staffing situation.”

In the more than seven months since OPA sent the letter, the agency has refused to accept public guardianship appointments, instead maintaining a waitlist for people in need of a guardian. Despite getting approval for six new public guardian positions soon after sending the letter, only some of the positions were filled. Months after announcing its no-new-cases policy, most public guardians still handle far more cases than is advised under national recommendations.

Alaska’s top court ruled Friday that the agency’s refusal to accept appointments has no legal basis, and OPA cannot decline public guardian cases when ordered to accept them by Superior Court judges.

According to Alaska law, “a court may order the public guardian to act as full guardian, partial guardian, conservator, or special conservator … if no person or private guardianship association is willing and qualified to perform the function.”

The Supreme Court sided with the Alaska Department of Law, which called OPA’s position “untenable.”

The Office of Public Advocacy falls under the Alaska Department of Administration and is one of the few state offices that provides legal services outside of the Department of Law.

The Department of Law, under Attorney General Treg Taylor, argued that if OPA is allowed to decline some cases, the consequence would be “that OPA may ignore any guardianship order for any reason (or for no reason), and the ward is left with little recourse and no guardian.”

“OPA’s position leaves some of the most vulnerable Alaskans without help to access essential — often life-sustaining — services,” wrote Assistant Attorney General Robert Kutchin.

OPA Director James Stinson said Friday that his staff is “still reviewing the order and can’t comment on it yet.”

The Supreme Court’s decision marks another chapter in a monthslong attempt by OPA to respond to its chronic understaffing by reducing its caseload, first by seeking to offload dozens of cases to a private guardianship agency and then by refusing to accept new appointments from the court.

The private guardianship agency, Cache Integrity Services, was formed by Tom McDuffie in 2022 in response to conversations with OPA Deputy Director Beth Goldstein. Goldstein is also the attorney who petitioned the Supreme Court to affirm her position that the public agency could decline public guardianship appointments.

After petitioning judges to sign off on the transfer of dozens of OPA clients to McDuffie’s agency, OPA declared in April that it would not be able to accept any new cases, including the cases that had been transferred to McDuffie.

McDuffie surrendered his guardianship license last month, after some of his clients lost the benefits on which they relied or were at risk of losing their housing due to unpaid bills. When McDuffie surrendered his license, OPA said it would take on 97 of his former clients, but keep in place its moratorium on new appointments from the courts.

The Supreme Court order came after OPA petitioned the court to review a decision by an Anchorage Superior Court judge. According to court filings, OPA had refused to accept a public guardianship appointment after Providence Alaska Medical Center petitioned for a public guardian to be appointed.

A court visitor also recommended during an April 17 hearing for OPA to be appointed guardian for the Providence patient. Ten days later, OPA sent its letter declining to take on new cases, including the case in question. OPA ultimately accepted the case last month but said “the issue may present itself again.”

Providence spokesman Mikal Canfield said Friday that the Supreme Court ruling “helps ensure that some of the most vulnerable people in our community will have access to the care they need when they need it.”

“Once appointed, the guardian can ensure that the patient gets the right care in the right setting. Sometimes this includes discharge from the hospital to a more appropriate care setting. Remaining in the hospital unnecessarily not only impacts the patient’s quality of life. It can also result in a patient occupying a bed for long periods of time, delaying care for other patients,” Canfield wrote in an email. He did not provide details on the specific patient involved in the court case.

“This frequently (affects) many of the most vulnerable people in our community, such as patients with dementia, traumatic brain injuries, or a serious mental illness. Without a guardian, these patients do not have someone to assist with navigating care and help them meet their basic needs. Lack of a guardian can also limit access to housing, nursing care, benefits, medical equipment, or outpatient medical care,” Canfield said.