2013 Overview: Guardianship and Capacity Issues

Volume: 35 Issue: 2

(Note: The pdf for the issue in which this article appears is available for download: BIFOCAL Vol. 35, Issue 2.)

Guardianship and capacity issues are a rapidly moving target. The Commission routinely receives a wide array of requests for technical assistance on guardianship and decision-making issues throughout the year. The aim is to balance attention to these timely state, local and individual needs with a broader vision for reform that can have a more widespread effect on policy and practice, and in turn on the quality of life of vulnerable individuals.

State Guardianship Stakeholder Groups: Taking WING
During 2013, the Commission has been working with four states that are implementing an exciting, lasting process to advance adult guardianship reform. The four states — New York, Oregon, Texas and Utah — are creating Working Interdisciplinary Networks of Guardianship Stakeholders (WINGS). The creation of WINGS was a key recommendation of the National Guardianship Network’s 2011 Third National Guardianship Summit.

The concept is for state courts to partner with community entities in the legal, aging, disability and mental health fields to drive changes in practice. The notion is that lasting change at the state level is most likely to come about through collaborative stakeholder coordination and problem-solving.

With funding from the State Justice Institute and the Borchard Foundation Center on Law and Aging, the Commission — on behalf of the National Guardianship Network (10 national organizations) — requested and received applications for WINGS awards (for small incentive grants and technical assistance) from state chief justices. An NGN advisory committee selected four states. Three of these states already have held initial meetings, opening doorways to better awareness of problems and possible solutions; and one will conduct its initial meeting in March. The energy and sense of hope in these groups is palpable, and the Commission is pleased to be a part of their efforts.

Multi-State Guardianship Cases
This year the Commission partnered with AARP to promote the passage of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act. The reason this Act is important is that if more than one state is involved in a guardianship case, as is increasingly common, families maybe caught in a jurisdictional tangle that can cost money, delay care and aggravate disputes. The Uniform Act provides a clear solution, and has now been passed by 37 states, DC and Puerto Rico. This year saw its passage in Wyoming and New York.

However, 13 states and additional territories still need to pass the Act if it is to function as intended. In these states, passage of the Act would save judicial and family time and expenses, and greatly simplify multi-jurisdictional cases — without changing substantive state guardianship law and without cost to the state. The Commission assists the AARP State Advocacy and Strategy Integration Team to produce materials for state AARP offices that have expressed interest in passing the Act. Additionally, in July the Commission, with the co-sponsorship of other key ABA entities, produced a webinar aimed at ABA members on the Act.

Coordination with Representative Payment System
Since 2004, the U.S. Governmental Accountability Office has pointed out that greater coordination between federal representative payment systems and state courts with guardianship jurisdiction would benefit vulnerable individuals with fiduciaries who make financial decisions on their behalf. In May 2013, the federal interagency Elder Justice Working Group further highlighted such coordination as a way to reduce financial exploitation by fiduciaries.

The Commission proposed — and in August the ABA House of Delegates adopted — an Association Resolution urging courts and government agencies with payee programs “to collaborate with respect to information sharing, training and education in order to protect vulnerable individuals . . .” Thus, now the Commission can have a voice in the ongoing discussion to boost coordination. As a start, the Commission worked with the Social Security Administration to identify an SSA designee for each of the four state WINGS groups.

3rd World Congress on Adult Guardianship
Another exciting Commission venture in 2013 has been its participation on the planning committee for the 3rd World Congress on Adult Guardianship, set for May 28–30, 2014 in Washington, DC. The National Guardianship Network is hosting the event, with the International Guardianship Network. The Congress has received funding from the Borchard Foundation Center on Law and Aging and the ACTEC Foundation. The Congress is an international gathering with participants from Europe, Asia, and North America. The first World Congress was in Japan in 2010 and the second in Australia in 2012.

Over 100 applicants from more than 20 countries submitted workshop applications, many of which have been combined into informative sessions organized in four overlapping tracks — courts, guardians, individuals, and decision-making. There will be plenary panels on diverse guardianship practices, and on implementing supported decision-making in countries across the globe. See http://worldcongressguardianship.org.

Directions of Reform: State Guardianship Legislation
The Commission has tracked state guardianship legislation every year since 1988. In October 2013, the Commission participated in the National Guardianship Association’s (NGA) annual Legal Review, contributing a legislative summary to complement the NGA caselaw summary.

This year, state legislatures passed more than 23 adult guardianship bills. New York and Wyoming passed the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act. North Dakota and Indiana scored big wins in appropriations for guardianship. Nevada passed a Senate bill providing for guardian training and making numerous revisions in procedure and guardian authorities and duties. Based on a study and public hearings by the Tennessee Bar Association, Tennessee passed a bill with substantial procedural changes. Texas also passed legislation making many procedural changes. A final state update for 2013 is now available online: http://www.americanbar.org/content/dam/aba/administrative/law_aging/2013_final_guardianship_legislative_update_12-18-13.pdf.

See the Commission’s website for state statutory charts on many aspects of guardianship law, including a new chart this year on restoration of rights, at http://www.americanbar.org/groups/law_aging/resources/guardianship_law_practice.html. ■

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Bifocal, the Commission on Law and Aging's bi-monthly journal, provides timely, valuable legal resources pertaining to older persons, generated through the joint efforts of public and private bar groups and the aging network.

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