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Bar News - March 13, 2009


Public Guardians: Their Role in the Justice System

By:

Linda Mallon in her office at the Office of the Public Guardian.

Linda Mallon, executive director of the Office of Public Guardian (OPG), speaks with an intensity reflecting a dedication to her work that becomes increasingly evident throughout her conversation. "As executive director, I still carry a small caseload, just to keep in touch with the real world," she says

Although Mallon is an attorney (admitted to the NHBA in 1982), public guardians come from a wide range of backgrounds. "It’s an interdisciplinary approach that enriches both the office and the individuals we serve," says Mallon. "There are many professions represented here; you don’t have to be an attorney to be a public guardian." Other professions represented at the OPG include social work, various health fields, real estate, accounting—and many human service areas, where guardians hold graduate degrees in gerontology, forensics, mental health and traumatic brain injury.

While still in college, Mallon decided that she wanted to go into public service. In considering what graduate degree to pursue, she finally settled on a JD. "I had considered becoming a social worker, but the more I thought about it, the more I realized that a law degree would be more likely to give me the necessary knowledge and power to do what I wanted to do."

Mallon wanted to change things. While she was a student at Franklin Pierce Law School in the early 1980s, she got valuable experience in public service by spending a year working as an intern at NH Legal Assistance (NHLA) for their Institutional Law Project (ILP). Spearheaded by attorneys John MacIntosh and Richard Cohen, the ILP filed a class action lawsuit in federal court challenging the constitutionality of the conditions at Laconia State School (LSS) for the developmentally disabled.

The conditions at the school were "abominable," says Mallon, and her time spent touring the facility and working with MacIntosh and Cohen solidified her career goal to practice law in the public service sector. Their efforts to improve the lives of LSS residents paid off in 1981. "Things changed dramatically," Mallon asserts. "Conditions and treatment at Laconia State School improved, while the state carried out its mandate to create a community-based system of services and began the process of discharging the residents to their communities of origin – and many were given public guardians."

The Office Established

Established as a state agency in 1979, the Office of Public Guardian was small to begin with. Its purpose was to provide guardianship, advocacy and protective services to wards from Laconia State School and New Hampshire Hospital who did not have family or friends able to serve as guardians. Also in 1979, there was a sweeping overhaul of New Hampshire’s guardianship statute, RSA 464-A. It provided significant due process protections to proposed wards, established a new definition of incapacity, utilizing functional skills and deficits, rather than simply medical diagnoses, as the criteria for determining the necessity of a guardianship—and required proof beyond a reasonable doubt.

"Actually New Hampshire became an example to the rest of the nation," comments Mallon. "And New Hampshire is still a leader; other states view both the guardianship statute and the public guardianship program as exemplary and have replicated them in their own jurisdictions."

Mallon joined the Office of Public Guardian in 1984, only two years after her graduation from law school. Given her experience advocating on behalf of individuals with developmental disabilities and mental illness at the two state institutions, she viewed it as an ideal match.

Public guardians do not provide direct services, but rather are charged with the responsibility for being the legal decision-makers on behalf of their wards. Their first concern is to assure appropriate services for their wards, seeing that they have proper residential care, medical treatment, financial oversight and access to other services to which they are entitled. Says Mallon, "Public guardians make decisions utilizing a model of least restrictive alternatives, giving strong consideration to the wishes of the individual. We want our wards to be as independent as possible."

The OPG has a staff that includes 14 public guardians, two of whom are designated as senior public guardians. Mallon shares responsibility for supervising the guardians with attorney Mark Feigl, a former public defender who now serves as Director of Guardianship Services. There is a six-person estate department which handles the public benefits and financial issues.

Referring to the other public guardians on the staff, she continues, "We learn so much from one another—we teach and challenge each other and because of that interaction, we hold ourselves to a higher standard."

The Office is active in the National Guardianship Association, where Mallon has served as an officer on the board of directors. In addition, all but the newest guardians are Certified National Guardians through the Center for Guardianship Certification. This certification can be achieved by meeting certain criteria regarding character and fitness, and having a requisite level of education and experience, in addition to passing an exam. Mallon holds the highest certification available, as National Master Guardian, along with attorney Sean Chandler, formerly deputy director of the Office who now serves as of counsel.

The Office Becomes Wide-Ranging

Michael Casasanto was the first director of the OPG and one of the first two original public guardians. Mallon credits his vision, as well as the scholarly writing which he co-authored, including a Model Code of Ethics for Guardians which was adopted by the National Guardianship Association, as largely responsible for the success of the Office as it evolved from a state agency to a non-profit organization approved by the NH Supreme Court in 1982 as a public guardianship program. This allowed the organization to diversify its funding base as well as increase its ability to serve as guardian for people with a wider array of incapacitating conditions.

Mallon also notes that a dedicated board of directors, including experienced probate attorneys and other respected leaders in related fields, has guided the Office through many changes over the years.

The Office has contracts with the Department of Corrections, the Bureau of Elderly and Adult Services and the Bureaus of Developmental and Behavioral Services to serve a total of 700 individuals throughout the state. In addition, the OPG serves as guardian for several hundred others with estates of a sufficient size to pay for the services—or where other funding mechanisms are available. The OPG also has an agreement with TD Banknorth to offer investment services, with the approval of the probate court, in cases where there are large estates.

In addition to its contracts with state agencies, the money to support the organization comes from private cases, some of which involve large estates and have been referred to OPG because of financial exploitation. Other funding comes from Social Security funds, allowing the Office to serve as guardian for indigent individuals in nursing homes. Referrals to OPG come from a variety of sources, including the probate courts, members of the Bar, hospitals, nursing homes, and family members.

Hard Work and Commitment

The state gets "a lot of bang for its buck," says Mallon. "For a rather modest rate of compensation for the services provided, it gets the highest quality of service."

Public guardians carry 65 cases each and are on the road much of the time visiting their wards. The Office is in Concord, but the individuals served live throughout the state. "You really have to have a passion for the work, or you couldn’t do it," Mallon said. "The Office has approximately 1,000 cases at any one time—and our guardians try to visit their people at least once quarterly—and all of us pitch in during a crisis. It is a position of tremendous responsibility and requires a collective 24/7 commitment on the part of the Office due to the nature of the work."

The guardians have a lot of autonomy and authority, but they also have a high degree of integrity and maturity. "And these qualities must be accompanied by humility, for there is a tremendous amount of trust involved," concluded Mallon.

For further information on the OPG, visit www.opgnh.org.

If you are in doubt about the status of any meeting, please call the Bar Center at 603-224-6942 before you head out.

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