Report Details Ways to Improve Guardianship System in US

Published in the Woonsocket Call on December 2, 2018

Just days ago, the U.S. Senate Special Committee on Aging held an afternoon hearing in the Senate Dirksen Office Building to alert Congress to appalling stories gathered across the nation regarding abusive guardianships that are taking advantage of vulnerable older adults. At this hearing the Senate Aging Committee also released its annual report that takes a look at an examination of guardianship arrangements including research and recommendations on ways to improve the nation’s guardianship system.

Although guardians provide a valuable and essential service for many older Americans, from deciding where an individual will live and when to seek medical care to choosing if family members are allowed to visit and how to spend retirement savings, unscrupulous guardians acting with little oversight have used legal guardianship proceedings to obtain control of vulnerable individuals and have then used that power to liquidate assets and life-time savings for their own personal gains.

Last April, the Committee held the first hearing in a two-part series this year on the abuse of power and exploitation of older Americans by guardians. The Committee also held a hearing on guardianship in 2016. The Nov. 28th hearing is a continuation of the Committee’s longstanding commitment to bring awareness and prevention to the financial exploitation of older Americans.

Putting the Spotlight on Unscrupulous Guardians

U.S. Senators Susan Collins (R-ME) and Bob Casey (D-PA), the Chairman and Ranking Member of the Senate Aging Committee, put the legislative spotlight on this important legal issue and released the Committee’s 34-page report at the Wednesday hearing titled, “Ensuring Trust: Strengthening State Efforts to Overhaul the Guardianship Process and Protect Older Americans.”

The released Senate Aging Committee report is the culmination of a year-long examination of ways in which the legal system can be improved to better protect individuals subject to these and similar arrangements from abuse, neglect, and exploitation. It addresses three key areas – the importance of guardianship oversight, alternatives to guardianship, and the need for improved data and it makes 13 recommendations.

“An estimated 1.3 million adults are under the care of guardians – family members or professionals – who control approximately $50 billion of their assets,” said Collins, in her opening statement. “Guardianship is a legal relationship created by a court that is designed to protect those with diminished or lost capacity. We found, however, that in many cases, the system lacks basic protections leaving the most vulnerable Americans at risk of exploitation.,” she said.

“While most guardians act in the best interest of the individual they care for, far too often, we have heard horror stories of guardians who have abused, neglected or exploited a person subject to guardianship. As our report notes, there are persistent and widespread problems with guardianship arrangements nationwide,” says Casey in his opening statement. “This is why Senator Collins and I introduced the Guardianship Accountability Act to begin reforming the guardianship system to ensure the protection of seniors under guardian care from losing their rights, savings or possessions because a guardian abused their power,” he said.

Fixing the Nation’s Guardianship System

The Senate Aging Committee took testimony from four guardianship experts who gave their thoughts as to how to improve the system.

Cate Boyko, Senior Court Research Associate at the National Center for State Courts (NCSC), explained that the state court data it collected revealed that none of the states was able to fully report all the information on guardianships they requested. They found that the most serious issues involved local court authority, lack of standardized reporting, and limited technology.

Bethany Hamm, Acting Commissioner of the Maine Department of Health and Human Services, provided background information on the state’s Adult Protect Services and public guardianship program. Hamm discussed Maine Uniform Probate Code (UPC) enacted during the state’s last legislative session. The Maine UPC takes effect in July of next year and requires private guardians to report annually on the condition of the adult and account for money and other property in guardians’ possession or subject to guardians’ control.

Karen Buck, Executive Director at the Pennsylvania-based SeniorLAW Center, a nonprofit legal services agency, described the work her organization does to tackle issues such as guardianship through free legal representation, education, and advocacy for older Americans in Pennsylvania. She argued that guardianship remains an “important tool” to provide care for vulnerable seniors and therefore merits attention and reform.

Finally, Barbara Buckley, Executive Director at the Legal Aid Center of Southern Nevada, described the steps that her state has taken since 2014 to better protect individuals under guardianship. One year later, the Nevada Supreme Court created a Guardianship Commission to examine the guardianship system and recommend reforms., she said, detailing three significant areas of reform implemented in Nevada: the right to counsel, the protected person’s Bill of Rights and other statutory reforms, and the establishment of the Guardianship Compliance Office.

As a result of the Senate Aging Committee’s work to examine issues surrounding guardianship, Collins and Casey announced at this hearing that they were introducing the Guardianship Accountability Act. This bipartisan legislation would promote information sharing among courts and local organizations as well as state and federal agencies, encourage the use of background checks and less restrictive alternatives to guardianship, and expand the availability of federal grants to improve the guardianship system.

Congress Must Act

One of the report’s recommended actions to strengthen guardianship arrangements is for courts to conduct criminal background checks on ALL prospective guardians. To aid states in this pursuit, Casey and Collin’s legislation, the “Guardianship Accountability Act,” promotes oversight of guardianship arrangements and encourages information sharing among government agencies and with other relevant organizations. This bill would also allow states to fund data collection on guardianship arrangements and conduct background checks on guardians.

According to the National Center for State Courts, there are approximately 1.3 million adults and an estimated $50 billion of assets under guardianship arrangements. State courts are tasked with monitoring guardianships in order to protect individuals subject to guardianship from abuse, neglect and exploitation. Despite this responsibility, few states are able to provide courts with adequate resources to monitor guardianships effectively and hold guardians accountable.

When the new Congress begins, hopefully this legislation will sail through both chambers of Congress and be quickly signed by President Donald Trump. We will see…

To get the Senate Aging Committee’s guardianship report, go to http://www.aging.senate.
gov/imo/media/doc/Guardianship%20Report.pdf.

For a copy of the Guardianship Accountability Act, go to http://www.aging.senate.gov/imo/media/doc/
Guardianship%20Accountability%20Act%20of%202018.pdf.

To watch the one hour and forty-seven-minute Senate Aging Committee hearing, go to http://www.aging.senate.
gov/hearings/ensuring-trust-strengthening-state-efforts-to-overhaul-the-guardianship-process-and-protect-older-americans.

Advertisements

New Uniform Act Good News for Rhode Island Caregivers

Published in Woonsocket Call on November 29, 2015

With the quick stroke of her pen, Rhode Island Governor Gina Raimondo signed guardianship legislation into law during the 2015 legislative session that would help Rhode Islanders avoid costly and time-consuming red tape when exercising health care, financial and other legal responsibilities for their out-of-state, elderly loved ones. It takes effect on January 1, 2016.

Like motherhood and apple pie, the changes made to the State’s guardianship law had broad bipartisan support in the Rhode Island General Assembly. The House bill and a similar Senate companion measure (entitled the “Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act”) passed overwhelming by votes of 72-2 and 37 to 1, respectively.

Representative Robert E. Craven (D-North Kingstown) who Chairs the House Committee on Municipal Government, says his legislation (introduced with Representative Michael A. Morin (D-Woonsocket) simply helps to protect those who are unable to protect themselves.  “When appointing guardians and instituting protective orders for adults, the law must be clear and concise to ensure someone’s rights are not violated while also keeping them safe,” he says, noting that the new law makes the rules and procedures very clear for this process and it will offer both the protected persons and petitioning guardians the legal causes and safeguards that are needed in such complex situation,” he said.

Fixes Jurisdictional Issues over Guardianship

According to Division of Elderly Affairs Director Charles J. Fogarty, the new law “provides consistency, reciprocity, and procedural efficiency in the best interest of seniors, creating a hospitable and healthy Rhode Island for our elders.”

Fogarty says that the new law would benefit caregivers in many way.  It clarifies state jurisdiction issues and even facilitates the transfer of guardianship from one state or another.  It also would enhance interstate recognition and enforcement of guardianship orders and simplifies communication and cooperation between courts.

Fogarty notes that Rhode Island’s new guardianship law is a law that 37 other states, as well as the District of Columbia and Puerto Rico, have already enacted, allowing for cooperation on and simplification of inter-state issues.  “It will be easier for out-of-state caregivers to focus on supporting their loved ones as opposed to becoming mired in current laws.  This legislation ensures that seniors and caregivers don’t waste time and resources in cases involving simultaneous and conflicting jurisdiction,” he says.

“We are very pleased that our staff, our terrific State House advocacy volunteers and a strong network of partners worked hard together to ensure that Rhode Island became the 42nd jurisdiction to enact the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act,” said AARP State Director Kathleen Connell. “Now, Rhode Island joins the national effort that focuses on care, not courts, by removing the barriers that prevent caregivers from providing for their loved ones, regardless of where they live.”

According to the AARP Public Policy Institute’s recent report “Valuing the Invaluable: 2015 Update,” the number of caregivers in our state is 134,000. Their work has an economic value of $1.78 million. That, Connell said, is why AARP Rhode Island strongly supported the legislation and was joined by judges, lawyers and families throughout Rhode Island.

Many Benefits, No Cost to Rhode Island Taxpayers

Connell notes that when the uniform guardianship jurisdiction becomes law, it will carry no cost to taxpayers and makes no changes in the state’s substantive guardianship procedures. However, Rhode Islanders will benefit as it will save them time and money. In addition, they will be safeguarding the health and financial well-being of their loved ones.

“It may seem very technical,” Connell continued. “But the bottom line is easy to understand:  We all recognize that we are a mobile society, and with that we need laws pertaining to caregivers and their families to reflect that reality. AARP strongly supports legislation that removes barriers that prevent guardians in Rhode Island from providing for their loved ones, regardless of where they live. “For Rhode Islanders, the uniform guardianship act is a step in the right direction to help protect the interests of vulnerable incapacitated adults who need guardians,” Connell said. “With this law, our guardianship system will function more efficiently, fairly, and cost-effectively.”

Court-appointed guardians step into the shoes of at-risk adults who can no longer make their own decisions, and make judgments about property, medical care, living arrangements, lifestyle and potentially all personal and financial issues. As a judicial proceeding, guardianship can be expensive, time-consuming and combative. It can remove fundamental individual rights. It can prevent or redress elder abuse – or can create an opportunity for exploitation or abuse of vulnerable adults.

This new uniform act addresses initial jurisdiction regarding a guardianship case; recognition of one state’s guardianship orders by another; and interstate transfers of guardianship cases when such transfers would benefit the incapacitated person.

Another key reason AARP strongly supported enactment stems from concern over elder abuse, neglect and exploitation. It will reduce the enticement of a vulnerable person to another state ― to gain control over assets. The law now will permit a court to consider which jurisdiction can best protect a person subject to abuse, and facilitate communication between courts in different jurisdictions about allegations of abuse.

Partners included the Uniform Law Commission. The Commission provides states with non-partisan, well-conceived, and well drafted legislation that brings clarity and stability to critical areas of state statutory law. In addition, the Act has a broad range of support from organizations including the National College of Probate Judges, National Academy of Elder Law Attorneys, National Guardianship Association, Conference of Chief Justices and the Alzheimer’s Association.

With the graying of Rhode Island’s population commonsense laws like the “Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act” need to be enacted.  Last session, state lawmakers worked together to pass this legislation that makes guardianship system more efficient, less time-consuming and costly for Rhode Island caregivers.  At no cost to Ocean State taxpayers.  Hopefully, best policy practices from across the nation can be brought to the Rhode General Assembly for full consideration.  If it happened once it might just happen again.