Abstract

Ethics practice is both relative and situational.Perhaps there is an area of no greater demonstration of these realities than where an organization, be it a public governmental entity and/or a quasi-governmental entity with government contracts has the duty of care owed to a vulnerable constituency as well as to other community stakeholders.These agencies have the public trust as well as the ethical caretaking concerns to master.In the following fact scenario and discussion, one would consider a situation where the care of the vulnerable constituency is the paramount concern and the facilitation of that care is also in question.Human Resource and leadership teams need to be cognizant of not only impropriety of members within their organization but also the appearance of impropriety as well.The following case study attempts to put into perspective the need for managers and HR representatives to monitor practice and perception of ethical behavior.

Case Scenario for Student Discussion

In an unnamed medium sized jurisdiction there is a local municipal agency that deals with elderly and mentally infirm citizens that are in need of both nursing home care and administration of finances under court ordered guardianships/conservatorships.Upon petition to the court, the court will order that agency to aid in the placing of the petitioned individual with a conservator or guardian as necessary.

The financial and personal well-being care of mentally infirm and aged individuals are generally a question of guardianships and conservatorships.A guardianship is generally for individuals with developmental disability and should be utilized only when necessary to promote and protect the well-being of the individual, including protection from neglect, exploitation, and abuse.A conservatorship is an appointed individual by the court to manage the estate, property, or other business affairs of an individual whom the court has determined is unable to properly take care of themselves, because of incapacity, disability or age. Generally, the conservator of an estate may also expend or distribute estate income or principal without court authorization or confirmation for the support, education, care, or benefit of the protected individual or the protected individual's dependents or relatives.A guardian or conservator is, as stated above, appointed by the court and after the appointment is monitored by either the court office itself or in larger municipal settings an agency with skill and resources to manage the caseload.The actual conservator or guardian may be a relative of the infirm citizen in question or it maybe someone else that has the expertise to monitor the financial and physical well-being issues that may arise.These conservators and guardians may also be private, professional for-profit organizations that monitors and cares for a multitude of infirm citizens as the law in several jurisdictions allow for the conservator to charge a fee for services rendered in the action of conserving the financial assets and cares for the physical well-being issues.This can include nursing and care homes for guardianships as well as accounting and other financial entities for conservatorships.Whether, the conservator or guardian is a relative or a business entity, the court and municipal agencies will look into the character, fitness and capability of the guardian/conservator and once approved they can undertake actions and conduct necessary to fulfill their duties.In the case of professional organizations in the business of caring for a number of client-patients, a list of approved agencies can be kept on hand and when a case of a new individual with need arises the court, upon petition and after assuring that a family member cannot or will not act in accordance of the rules will simply go down the list to appoint an appropriate and approved agency for the conservator/guardianship.

A guardian and/or conservator is entrusted with a number of powers and responsibilities in the Municipal Probate Code[1]and entails the following:

to invest or reinvest funds in accordance with the Michigan Prudent Investor Rule;

to retain assets in which the conservator has a personal interest;

to exercise powers and duties relating to stock ownership;

to hold stock in the name of a nominee;

to continue and participate in the operation of the protected individual's business;

to open a bank account;

to acquire or lease real estate;

to repair, erect, or demolish real estate improvements;

to purchase insurance;

to pay or settle claims by or against the estate;

to employ professionals; and

to respond to environmental concerns.

It should be further noted that the law implies upon the conservator the duty of care.The undertaking of the duty of care is an objective test into evaluating the decisions taken by the agent to enquire if the actions had the best interests of the client in mind as opposed to the measured worth of success in their actions.Additionally the law requires a conservator or guardian to avoid conflicts of interest.[2]This municipal jurisdiction[3]requires licensure for the professional exercise of "professional fiduciaries".Such licensure also includes a professional conduct and ethics code.[4]Such codes contain regular language calling for the avoidance of conflicts of interest and avoidance of activities that would be adverse to the client's fiduciary or physical state.Professional conservators/guardians are allowed to charge a fee for their services as long as this fee is reasonable and sanctioned by the court.[5]

The municipal agency acts as a monitor of the responsible party and also as both a resource to the appointed conservator/guardian in the event that the appointment is made to a family member and as selection agent in the event that the conservatorship or guardianship needs to be placed with a professional agent.For efficiency sake, the municipal agency, under the guidance of the court has a list of no less than fifteen approved "professional fiduciary agents" that are appointed when the conservatorship and/or guardianship is necessitated.The list of vetted agents are investigated and licensed as required by state and local authorities and are granted new petitions on a listed base.Which agency gets which petition depends on the last appointment and whether contact by the municipal agency is able to contact the lead official at the professional agency.Other factors to consider in placement may include capacity of current workload, capability to manage the workload and other special circumstances that would dictate to whom the petitioned guardian/conservatorship should be placed.This list includes all four of the nursing homes in the jurisdiction in question as well as eleven professional entities that practice in part, fiduciary services for clients in the jurisdiction.

Mr. Clarence Front, a licensed social worker, has been with the municipal agency for fifteen years and has a senior position within the agency where decisions on where to house the at-risk citizens as well as who should be chosen as agency approved conservator of the citizen's finances.Mr. Front's record has been noted by other senior officials as being efficient in his placements and quick to place the citizens in appropriate care facilities as well as making sure the finances of the patients are properly placed with judicial and agency approved guardians.Recent accusations have arisen however, that Mr. Front's placements of the patients into homes and the assignments of the financial caretaking, both of which are paid guaranteed governmental fees for their services, have been to favored agents rather than the next available agent on the approved list.It is an undisputed fact that Mr. Front's ex-brother-in-law, Dennis Mens, is an accountant that heads one of the private companies, Mens & Rea Financial Services, that operates a for-profit management of senior and court appointed conservatorships and that Mr. Front's sister, Beautrix Front-Mens, is the deputy director and chief economic officer of one of the nursing care facilities, Comfortable Care, in the jurisdiction.Both Mr. Mens and Ms. Front-Mens are in positions of power where they receive communications about current and future placements of new or continuing conservator/guardianships.The firm that Mr. Mens works with is a for-profit operating model with both public and private contracts.The facilitation of these contract and the continuation of the firm's profitability are dependent upon maintaining of new clients and having a steady revenue stream of those new clients coming into the firm.The nursing home, Comfortable Care, is also a private entity that receives only state funds from Medicare/Medicaid placements but relies mainly upon the payment of rental fees and the billing of tenants that have elected to be in their care for their budgetary operations.Both Comfortable Care and Mens & Rea Financial are well respected pillars in both the senior care market and hallmarks of the community at-large.Both businesses are noted for their success and waiting lists of clients who are privately petitioning to become clients of their services.There is an average wait time for new clients to privately petition the companies for their services but no such wait time for emergency or court ordered conservatorships or guardianships.

These facts, coupled with recent well visible and extravagant purchases by Mr. Front has led to a pronounced level of acrimony within the municipal agency and a few complaints have arisen from approved agents that they are being passed over for placement in favor of agents that have a close working relationship with Mr. Front.The local newspaper has also received an anonymous tip about possible mishandling of client assignments and has contacted the municipality for comment.So far municipal management has not returned the solicitation for comment.It should be noted that in spite of these complaints and the rumors, there has been no complaints by the citizens, their family or anyone else about the care of the citizens or the management of their finances.Furthermore, a recent state audit of the cases under Mr. Front's care showed no abuse of the patients nor mismanagement of the funds.

Questions for Consideration:

1.As member of a Human Resource Management Team responsible for the administration of the municipal entity administering the services mentioned above what additional facts would you consider relevant to this case?

2.If you were an HR or in leadership at Mens & Rea or Comfortable Care would your answer differ than if you were with the government entity?Why?

3.What level of scrutiny would you consider necessary, if any, to resolve these issues?

4.The Society of Human Resource Management Code of Ethics suggest that as an HR professional, steps should be taken to minimize "conflicts of interest or the appearance thereof".[6]The National Association of Social Workers Code of Ethics calls for "[S]ocial workers behave in a trustworthy manner".[7]With this in mind, what steps would you recommend for the actors of this scenario to be in harmony with these philosophies?

5.Does the fact that there are no complaints about the citizens' care or administration of the finances matter in the decision making process?How and why?

6.Assume that it is discovered that Mr. Front is giving the case assignments to favored agents rather than approved agents but is not receiving any form of bribe or kickback for the placements.Should the agency take any action?

7.Again assume placement is discovered based on favor rather than order, further assume that favored agents in turn give compensation to Mr. Front, what should be done in this case?Can any discrepancy in action or severity of punishment be justified?