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October 01, 2011

ABA Cites Need for Improving Guardianship

Guardianship is a “double-edged sword” that provides protection yet removes fundamental rights, the ABA said in a statement submitted to a Senate Judiciary subcommittee last month as the association urged the panel to support efforts by the federal government to enhance guardianship systems at the state level.

“The number of individuals in need of guardianship services is spiraling with the aging of the population and growing number of persons with disabilities,” ABA Governmental Affairs Director Thomas M. Susman emphasized for the record of a Sept. 22 hearing before the Subcommittee on Administrative Oversight and the Courts.

He explained that when state courts appoint guardians for people who cannot care for themselves or manage their property, these guardians “face a daunting challenge of finding out what the person wants or would have wanted, or what is in the person’s best interests; of navigating our complex systems of health care, housing and long term care, social services, public benefits and finances; and of being accountable to the court.”

The ABA, a leader in adult guardianship reform, has tracked state guardianship legislation since 1988 and participated in groundbreaking consensus conferences and partnerships with others in studies of guardianship monitoring and public guardianship. The association’s Commission on Law and Aging currently is engaged in a project supported by the State Justice Institute and the Borchard Foundation Center on Law and Aging to develop a handbook for courts on volunteer guardianship monitoring and assistance programs.

Susman noted that a 1987 Associated Press report, which found the system was failing those it was designed to protect, launched the modern guardianship reform movement and triggered statutory changes, new standards and a growing number of state education and training materials. Practices by courts, guardians and others did not automatically follow the statutory reforms, however. There continued to be instances of guardian misconduct, lack of judicial oversight, lack of clear guidelines for guardian performance and decision-making, and a dire need for assistance for family guardians unfamiliar with the legal, judicial and social services systems.

Three Government Accountability Office (GAO) reports also found allegations of abuse, neglect and financial exploitation of seniors and persons with disabilities by court-appointed guardians, as well as lack of coordination between state court handling of guardianship and federal agencies who appoint representative payees. The most recent study, released in July 2011, found that information sharing between the Social Security Administration, the Department of Veterans Affairs and state courts would improve protection of incapacitated adults.

The ABA has extensive policy on state-level guardianship reform, and in February 2009 adopted additional policy “encouraging the federal government to provide funding and support for training, research, exchange of information on practices, consistent collection of data, and development of state, local and territorial standards regarding adult guardianship.”

During the hearing, Robert N. Baldwin, executive vice president and general counsel for the National Center for State Courts (NCSC), emphasized the need for credible data, and he commended subcommittee Chair Amy Klobuchar (D-Minn.) for her interest in assessing the impact of conducting criminal background checks on potential guardians and to test the use of electronic filing of reports by guardians.

Baldwin said that NCSC supports authorization of a federal Guardianship Court Improvement Program (CIP) modeled after the CIP grant program that has improved the process and outcomes in child welfare cases at the state level.

Others testifying before the panel included Kay E. Brown, GAO; Deb Holtz, Minnesota Office of Ombudsman for Long Term Care, and Naomi Karp, AARP Public Policy Institute.


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