OPINION: OPA must step up as Alaska’s guardian of last resort

The ADN reported Nov. 1 on a mass court transfer of wards from the Office of Public Advocacy (OPA) to private guardian Thomas McDuffie. The transfer (later found to violate law) resulted in dysfunction and harm to many wards. OPA Director James Stinson criticized the ADN report in a Nov. 7 commentary, saying it was inaccurate and failed to capture the complexity and “real questions plaguing guardianship in Alaska.” Stinson went on to blame judges for unnecessarily appointing OPA as guardian, thus overburdening his office.

The ADN did not get it wrong. Stinson, however, was deflecting responsibility from himself and OPA for the unconscionable failures that have harmed vulnerable wards for whom OPA was responsible.

The court does not appoint OPA except as the last resort. OPA’s caseloads have been overburdened for years, not due to court “over-appointment” but due to growing need. Increased demand for guardianship resources was predictable by a cursory analysis of growth in our vulnerable populations (elders, traumatic brain injured, intellectual and mentally disabled, etc. A competent director and manager would have projected this trend and managed operations accordingly. Instead, Stinson chose to shut down this mandatory public service and blame the courts for the increasing need for public guardianships.

Stinson also went on to shift the responsibility of finding alternatives to OPA guardianship from his office to the court. When no family, friend or other responsible person is available to act as guardian, the court has no choice but to appoint OPA — the public guardian. OPA, not the court, is required by law to proactively seek to locate family or friends to serve as guardian — if they exist. OPA, however, regularly appears in guardianship hearings and urges the court to check ancestry.com to find family or friends before appointing OPA. This farcical suggestion explains why the court finds OPA is the last resort in these cases.

Beyond its responsibility to seek alternative guardians, OPA is statutorily obligated to develop and support guardians in the state. Though Stinson highlighted this as a primary focus in his opinion piece, OPA has contributed nothing new to address this under his leadership. The public and private guardian bench in Alaska is currently so thin as to be nonexistent for practical purposes. OPA expends few resources on guardian training or workforce development. There is a large role for para-professionalism in this area that could be developed, among other innovations.

The reality is that OPA’s caseload dilemma was caused by staff shortages. In April 2023, Stinson announced OPA would stop taking new guardianships due to those staff shortages and his fears of liability. But Stinson didn’t stop at refusing new cases. His fear of liability began a march toward a “perfect storm” that eventually harmed clients OPA offloaded to a private organization it had handpicked, promoted and supported for that purpose.

This “perfect storm” required multiple failures. Rather than planning for and managing his caseload, Stinson simply began refusing to accept new guardianship cases. This shifted the problem from OPA to the courts and others. To further reduce workload by “privatizing” some of its cases, OPA hand-picked and promoted a new private guardian while ignoring warnings of its ineptitude. At OPA’s urging, funders infused this new and inexperienced resource with cash to expand. At OPA’s behest and with its assurances, the court put its imprimatur on the mass transfer of guardianship cases to McDuffie without protecting the rights of those affected. McDuffie went on to do exactly what was foreshadowed: financially abuse, ignore and then abandon these wards, dumping the entire problem back to the court. OPA was the center of this shameful fiasco.

OPA’s dilemma is, tragically, not unique to Alaska state government. Many state government agencies, most particularly our safety-net agencies, are beleaguered with staff shortages and lack of adequate funding that render them incapable of meeting their statutory responsibilities. But OPA has been unique in shedding its responsibilities and blaming others for its failures. Where else in government are agency directors allowed to refuse to perform their basic functions or to simply offload responsibilities regardless of the harm because there are too many people who need them? Would Alaskans allow the Department of Corrections to refuse to accept inmates committed for sentence? Could the Division of Motor Vehicles refuse to process licenses or registrations? Alaskans would revolt.

The difference here is that OPA wards are legally incompetent and incapable of revolting against OPA by just saying “no.” OPA has a solemn set of duties to assure the care of these vulnerable adults who, by definition, have no one else. OPA not only failed to protect them but acted carelessly in ways that caused harm. And OPA’s actions are largely hidden within a “confidential” system established to protect the privacy of wards but which works against them by shielding those who cause them harm from accountability.

The ADN report of “dysfunction” was not only accurate but an understatement. The dysfunction has since become a crisis. Some wards have now lost housing and benefits because McDuffie failed to apply for or maintain their income and benefits. Others were left without funds for food and other essentials and without medical care. As things further devolved, McDuffie grossly mismanaged nearly all these cases. OPA, though forewarned of McDuffie’s ineptitude and carelessness prior to the transfer, assured the court it would support McDuffie after the transfer and accept these cases back if the plan didn’t work out. When it predictably did not, Stinson refused return of the cases.

The court has now corrected the situation by returning these cases to OPA, the sole agency legally charged with duty to public wards. As agency director, Stinson must take personal responsibility for the dire consequences of OPA’s past actions and devise emergency actions to reverse the harm caused and prevent further harm to the wards.

Despite his efforts to deflect responsibility and blame, Stinson must own the longstanding problem of an overburdened public guardian system. It was overburdened on the day he accepted his appointment to lead and manage it. His job is to not only manage the workload but effectively plan for and garner support from the governor, Legislature and public for the resources required to fully discharge his agency’s statutory responsibilities to a growing population in need.

It’s true that Stinson may be hampered by the government-cutting philosophy and other questionable priorities of Gov. Mike Dunleavy. If Stinson lacks sufficient confidence or support from Dunleavy to obtain resources his agency needs to deliver his statutory mandate, he should resign and let Dunleavy appoint someone else to do the job. Whoever does it, however, must accept the mandate, discharge it ethically and without assigning external blame for a longstanding internal problem. Even in the environment of safety net scarcity that Dunleavy has created, the leaders of other overburdened agencies like the Division of Public Assistance do not reduce themselves to blaming other agencies or the vulnerable people forced to rely on public assistance as the problem.

Stephanie Rhoades is a retired district court judge and attorney who represents and works with vulnerable adults in the guardianship system.

Russell Webb is a retired deputy commissioner of the Alaska Dept. of Health and Human Services.

The views expressed here are the writer’s and are not necessarily endorsed by the Anchorage Daily News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary(at)adn.com. Send submissions shorter than 200 words to letters@adn.com or click here to submit via any web browser. Read our full guidelines for letters and commentaries here.