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March 01, 2014

ABA urges greater coordination for adult guardianship programs

In a comments  submitted March 4 to the Department of Veterans Affairs (VA), the ABA cited the need for greater coordination between the VA fiduciary program and state courts that have jurisdiction over adult guardianships and conservatorships.

The ABA letter, which addressed a proposed rule on VA fiduciary activities, commended the VA generally for updating, reorganizing, and clarifying the regulations concerning fiduciary responsibilities and beneficiary rights but also offered recommendations.

The comments cited a 2004 Government Accountability Office report that found a lack of coordination among state courts handling guardianship, the VA fiduciary program and the Social Security Administration (SSA) representative payee program. The report noted that federal agencies and court were not systematically notifying other agencies or courts when they identified someone as incapacitated or when they discovered that a guardian or a representative payee was abusing the incapacitated person.

A second GAO report in 2011 found that gaps in information sharing continued to exist, and in 2013 the Elder Justice Coordinating Council highlighted the need to reduce financial exploitation by fiduciaries through enhanced oversight and collaboration among federal and state entities.

ABA policy adopted in August 2013 “urges courts with jurisdiction over adult guardianship and governmental agencies that administer representative payment program for benefits to collaborate with respect to information sharing, training, and education in order to protect vulnerable individuals with fiduciaries who make financial decisions on their behalf.”

The association’s comment letter listed examples of coordination that could readily be accomplished  under several categories, including: establishing bars to serving as fiduciary; determining fiduciary non-financial responsibilities; sharing VA accounting with the courts; authorizing of fiduciary fees; protecting beneficiary funds; investigating misuse of funds; and establishing protocols for removing fiduciaries.

The comments also highlighted Managing Someone Else’s Money, a publication recently developed by the ABA under contract with the Consumer Financial Protection Bureau that is a guide explaining the duties of SSA representative payees and VA fiduciaries.    

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