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August 21, 2018

ABA recommends ways to reform guardianship

The ABA conveyed recommendations July 20 to the Senate Special Committee on Aging on ways to improve guardianship policy and practice and to address guardianship abuse and exploitation.

“The American Bar Association, through its Commission of Law and Aging, has played a leadership role in adult guardianship reform over the past three decades,” ABA Governmental Affairs Principal Deputy Director Holly O’Grady Cook wrote to committee Chairman Susan M. Collins (R-Maine) and Ranking Member Robert P. Casey Jr. (D-Pa.). She explained that the association has sought to improve adult guardianship laws and practices through major national consensus conferences, research studies, legislative analyses, and advocacy efforts.

The ABA’s comments set out two basic premises about adult guardianship in the United States.

First, because there is not a national system for guardianship, the first front of reform is at the state level, where 25 states passed 49 guardianship bills in 2017 and other bills have been approved or are pending this year. She described reform as steps to promote less restrictive options instead of guardianship, to improve guardianship procedures that afford protection yet protect rights; and to address abuses in guardianship through court oversight and other means.

She said that federal action also can make a difference, and ABA policy adopted in 2009 “encourages 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.”

The second premise is that there is a pronounced gap between guardianship law and practice. Federal guidance and incentives, Cook wrote, could have an important impact on improving the practices of judges, attorneys professional and lay guardians, and other stakeholders.

She suggested three overarching actions the federal government could take to prompt change at the state level.

  • Recognize the Uniform Guardianship, Conservatorship and Other Protective Arrangements Act, which is model legislation that promotes person-centered planning to incorporate an individual’s preferences and values into a guardianship order and requires courts to order the least-restrictive means necessary for protection of persons who are unable to fully care for themselves.
  • Support state demonstration grants under Section 501 of the Elder Abuse Prevention and Prosecution Act of 2017, which requires courts to collaborate with the state unit on aging and the state adult protective services agency. In 2011 the Third National Guardianship Summit urged states to develop collaborative working networks called WINGS (Working Interdisciplinary Network of Guardianship Stakeholders) to promote adult guardianship reform and promote less restrictive options. There are now WINGS partnerships or similar groups in 26 states.
  • Establish a Guardianship Court Improvement Program to provide a permanent structure for federal funding that would solidify ongoing guardianship reform and promote less restrictive options.

The ABA comments also emphasized the lack of reliable data regarding adult guardianship, but noted estimates that there are approximately 1.3 million adult guardianship cases and an estimated $50 billion of assets under conservatorships nationally.

In addition, Cook explained that although there are many tools that state courts could be using to provide protection from exploitation and abuse, the courts may not be fully informed and lack financial resources to implement the tools. The federal government also could take steps to make guardianship more of a last resort and could highlight key best practices for guardianship reform at the state and local level, she wrote.

During a hearing earlier this year on exploitation of older Americans by guardians and others, Collins noted that a recent Government Accountability Office study identified hundreds of cases of abuse, neglect and exploitation and identified $5.4 billion that had been improperly diverted by guardians and others.

“Seniors who need assistance in managing their affairs should never be exploited and left destitute by an individual a court has appointed to protect them,” Collins said.