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According to North Carolina law, health care professionals can petition a court to revoke guardianship from a patient's parents or legal guardian, and instead assign a public guardian to manage the patients' medical care.
'Our thoughts were, no way'
David Bankert and Joanne Luterman are two such parents who approached the I-Team about their experience losing guardianship for their son, Ian.
"We were shocked and blown away," Luterman told ABC11. "We want Ian to have some joy, to come home, lead a life with his family and have some sense of normalcy.
Ian, 24, suffers from schizophrenia, and his parents say they first noticed signs of mental illness in high school. Though he did graduate, Ian spent the next several years going in and out of the hospital instead of going to college. Despite doctors' recommendations for more medication and long-term care, Bankert and Luterman instead insisted that a good diet, exercise and faith could restore Ian's sense of self.
"He never did drugs, he never smoked, he never drank alcohol," Luterman said of Ian's high school years. "He was such a good kid. Then what happened was when he went in the hospital the first time, they forced him to have these medications. In his mind, it was a very adverse event for him. Very traumatizing."
Court documents, however, reveal a different response from Ian's doctors: in a petition filed on August 24, 2017, Dr. Stephen Ford writes, "I believe that both parents love their son very, very much. However, there have been many years of beliefs and patterns of thinking that have developed so that neither parent is able (alone or together) to make rational psychiatric decisions for their son in a safe manner."
Dr. Ford cites several reasons for petitioning the court to revoke guardianship, including missed appointments and what the doctor calls "aggressive behavior," including an instance where he describes Ian punched his father, David.
Both parties met before a judge in Wake County Court for Special Proceedings in December; the hearing lasted three days and included more than 12 hours of testimony.
The judge, while acknowledging the parents' love and attention for their son, ultimately ruled that Bankert and Luterman were "unsuitable" to continue as Ian's guardians, citing Ian's frequent hospital visits and "the inability of the doctors and staff at the hospital to provide necessary treatment" for Ian.
Now 18 months later, Bankert and Luterman remain steadfast in their opposition to the ruling.
"They took parents and guardian who know their son very well, who know the medications very well and know how the medications affect him very well, and care about him more than anyone else in the world."
Guardianship and the Law
While not commenting on the specifics of Ian Bankert's case, a spokesperson for Attorney General Josh Stein's office explained to ABC11 that when any person files for guardianship, the judge, clerk or jury must find "clear evidence" that the respondent is "incompetent."
In essence, this means that someone does not have the capacity to manage his or her own affairs, or the affairs of his or her own children. According to the Attorney General's Office, guardianship cases are most frequently related to disability, mental illness, disease or injury.
Testimonies vary from case to case, but in general the petitioner could order evaluations from experts - including medical or psychiatric - to help make the decision.
To reinstate guardianship, the individual or persons who lost the earlier case can file a motion in the court to request the order be modified or changed. Then, once again, the clerk, judge or jury will consider evidence about competency.
North Carolina's General Statues include the following provisions:
- The clerk has the power and authority to remove any guardian appointed, to appoint successor guardians, and to make rules or enter orders for the better management of estates and the better care and maintenance of wards.
- It is the clerk's duty to remove a guardian or to take other action sufficient to protect the ward's interests if the guardian neglects to care for or maintain the ward in a suitable manner.
- It is the clerk's duty to remove a guardian or to take other action sufficient to protect the ward's interest if the clerk finds the guardian unsuitable to continue serving as the guardians for any reason.
The North Carolina Department of Health and Human Services (DHHS) reports 128 patients - including Ian Bankert - are currently in psychiatric hospitals and have been assigned public guardians. As their care is managed by the State, their care is also paid for by the state - an average of $1,200 per person, per day.
The total number of people with public guardians, however, is exponentially higher than just those in state hospitals. According to the DHHS' Aging and Adult Services division, more than 5,000 people are currently served by public guardians, many of whom who have intellectual and other developmental disabilities (I/DD) or mental illness.
Through a state grant, a number of stakeholders are exploring a variety of options to update guardianship in North Carolina.
The initiative, called Rethinking Guardianship maintains that "the rights of individuals with disabilities are equal to those of persons without disabilities."
In a recent program piloted in Catawba County, stakeholders identified three key focus areas:
1. Transitioning to Adulthood
- focused on individuals with intellectual and developmental disabilities (IDD) who are turning age 18 (including youth aging out of foster care)
- developed a training module for schools to use in educating school staff/parents/families and children/teens on options for independence
- involved the three public-school systems in Catawba County to develop the training
2. Supported Decision Making
- increased knowledge and availability of alternatives to guardianship and supported decision making in the community
- created a volunteer and training process that would help create a "support team" for potential persons needing assistance in decision making (in lieu of guardianship or as an added support)
- partnered with a provider with the expertise to help achieve this goal
3. Community Education and Awareness
- developed education/training for attorneys, Clerks of Court, and court employees on alternatives to guardianship (including limited guardianships)
- developed material to share with petitioners about alternatives