Pennsylvania’s Progress on Elder Justice

Pennsylvania is the nation’s eighth oldest state in terms of the percentage of elders. Older Pennsylvanians continue to represent a growing demographic, as now over 25 percent of our Commonwealth’s population is age 60 and over. With the aging population, which has given so much to subsequent generations, come unique needs and challenges that affect our institutions, including the judiciary. Compounding the age-related hardships encountered by the elderly generally, 8.4 percent of these older adults live below the poverty line.

Our Commonwealth’s older adults deserve a government that is dedicated to recognizing the challenges they face and to providing real and practical solutions. Indeed, the range, efficacy, and quality of services that elders receive from Pennsylvania’s courts are a matter of public trust and confidence.

In light of these special needs, the Pennsylvania Supreme Court is dedicated to the unwavering goal of elder justice in our Commonwealth. Almost a decade ago, in April 2013, our Supreme Court established a multidisciplinary Elder Law Task Force to address issues involving guardianships, elder abuse, and access to justice.

I was privileged to chair the Task Force, and along with former State Court Administrator Zygmont Pines, I had the opportunity to work with a “blue-ribbon” panel of 36 experts in all areas of elder law to bring together the diverse and critical perspectives of the myriad stakeholders in the aging network. Each of them provided invaluable insight into the preparation of proposed approaches and solutions to the challenges faced by our Commonwealth in addressing the growing needs of our elderly population. Remarkably, we were able to undertake this mission with a task force composed of 100 percent of volunteers.

The Task Force focused on how courts could address the particular concerns regarding elders and also be proactive in addressing the impact of the growing population of elders on the Commonwealth’s court system. More specifically, the Task Force’s charge was to review current problems and approaches, examine promising practices in other states, and deliver a blueprint of recommendations to address the needs and challenges of the Commonwealth’s aging population.

It was the Task Force’s collective hope that the recommendations offered would serve as model practices and inspire leaders in government and our communities to be both advocates and instruments of reform in service to our elders.

The Elder Law Task Force Report and Recommendations was released in November 2014 and is available online at www.pacourts.us. In its Report, the Task Force made 130 recommendations. The recommendations are broken down by those to whom they are addressed: the Pennsylvania Supreme Court, the Pennsylvania legislative and executive branches, the federal government, prosecutors, victim services providers, bar associations, and the public.

Early in the process, our court approved the establishment of the Advisory Council on Elder Justice in the Courts (Advisory Council) and the Office of Elder Justice in the Courts (OEJC) to serve as a liaison to the executive and legislative branches, and to communicate with the Administrative Office of Pennsylvania Courts (AOPC) and the Supreme Court regarding the implementation of the Task Force’s recommendations and other matters involving elder justice. Cherstin Hamel is the director of the OEJC. The Advisory Council, chaired by Superior Court Senior Judge Paula Francisco Ott, along with former State Court Administrator Zig Pines as the vice-chair, began their work in January 2015.

The Supreme Court’s creation of the Elder Law Task Force, Advisory Council, and the OEJC manifested the court’s commitment to achieving real results that would benefit the state’s aging population in practical ways.

The Advisory Council and the OEJC have demonstrated their devotion, diligence, and passion for championing the rights of our Commonwealth’s elders in practical and meaningful ways, resulting in real change to the approaches and procedures by which our courts assist our aging population.

One of the most significant areas of concern for the Advisory Council and the OEJC is abuse of the elderly. Elder abuse affects well over 5 million Americans annually and costs over $36 billion in losses due to financial exploitation alone. Elder abuse is vast, pervasive, and under-reported: One in every 10 people 60 and older who lives at home suffers abuse, neglect, or exploitation. Yet, it is estimated that only one in 24 cases is reported to authorities. Violence against elders adds more than $5.3 billion in direct medical costs to the nation’s annual health expenditures. In observance of World Elder Abuse Awareness Day in 2015, President Barack Obama stated, “Often under-identified and under-reported, elder abuse is a public health crisis that crosses all socioeconomic lines, and it is an affront to human rights around the world.” Elder abuse may be an issue in criminal, civil, family, or orphans’ courts. While guardianships in Pennsylvania are handled by the orphans’ courts, the increasing population of elders impacts all layers of the judiciary and all types of cases to one degree or another. Indeed, the Advisory Council and the OEJC recognize the number of Pennsylvania elders who will be plaintiffs and defendants in civil actions, defendants and victims in criminal actions, grandparents in custody actions, and witnesses and jurors in trials will continue to grow, and the guardianship system in particular is expected to be significantly impacted.

As they continue to provide this important public service, the greatest accomplishments of the Advisory Council and the OEJC to date are worth highlighting.

Guardianship Tracking System

One of the greatest achievements of the Advisory Council and the OEJC has been the creation, implementation, and expansion of the Guardianship Tracking System (GTS). GTS is a statewide, web-based application created entirely in-house by AOPC’s Information Technology Department (IT). GTS is used by guardians, court staff, orphans’ court clerks, and judges. It is the exclusive method for the electronic filing of mandated guardianship reports and it provides guardians with a uniform and efficient e-filing experience.

The statewide data collected and contained in GTS allows the Advisory Council to track guardians’ compliance with filing mandated reports, assist courts with their guardianship monitoring responsibilities, and take a data-driven approach to guardianship reform. This, in turn, allows the OEJC and IT to regularly review GTS data and bring potential concerns to the Advisory Council’s attention.

In 2020, IT was able—for the first time—to identify precisely the total number of active guardianships in the Commonwealth. In Pennsylvania, as of December 31, 2021, there were 18,380 active guardianship cases in GTS, with 382 professional guardians and 19,261 nonprofessional (family/lay) guardians. The total amount of guardianship assets under court supervision was over $1.7 billion ($1,765,624,771.61).

The ability to generate accurate and comprehensive statistics from the data collected by GTS was a significant accomplishment considering a national dearth of statistical data on guardianship cases. Timely, accurate, and complete GTS data on guardianship cases has become a vital tool for the Commonwealth’s courts to better monitor these cases and to be proactive in preventing elder abuse and exploitation.

Specifically, GTS allows courts to scrutinize red flags prompted on guardianship cases and respond to potential problems immediately, thereby better protecting persons under guardianship. The capacity of GTS to automatically flag potential concerns of loss and neglect is an important feature for assisting courts with their monitoring responsibilities at a time when funds for staff resources to thoroughly review each guardianship report are scarce. This also allows for a uniform protocol for review of guardianship reports. Moreover, GTS may alert orphans’ courts statewide of any instances of abuse, neglect, or financial exploitation by an active guardian by allowing a judge of the orphans’ court to place an alert on that guardian. This, in turn, eliminates the potential for that guardian to serve in another county that has no record of the previous misconduct.

Obviously, such a complex and valuable application as GTS requires constant updating and supervision. In 2019, at the recommendation of the Advisory Council, the Supreme Court approved the creation of a GTS Governance Committee to establish a process for determining whether requests for system enhancements to GTS should be made and the priority of such requests. A committee was established that includes orphans’ court judges, clerks of the orphans’ courts, guardians, OEJC, IT, and AOPC Legal Department and IT staff.

Not surprisingly, since its implementation, GTS has received national recognition. In 2019, it won the National Association of Court Management’s Court Process Innovations Award. The American Bar Association’s (ABA) Commission on Law and Aging featured GTS in the March/April 2019 edition of Bifocal. In 2020, the ABA’s Judicial Division Record published an article on GTS. Several states’ court systems and nationwide court management organizations have sought to emulate GTS.

Bench Books

One of the most valuable contributions to the quest for elder justice has been the creation of bench books for the Pennsylvania judiciary.

In July 2019, the Advisory Council published the first edition of the Pennsylvania Elder Abuse Bench Book, the go-to resource for common pleas (trial) judges facing issues involving elder abuse, regardless of the court division in which they sit. This Bench Book reflects the accumulated wisdom of both judges and practitioners who focus on elder justice and combines an outline of the laws pertaining to elder abuse with medical information and subject-specific lists of practical questions. The Bench Book was provided to all common pleas judges and an online version is available on Pennsylvania’s Unified Judicial System’s website.

Similarly, in September 2020, the Advisory Council published the first edition of the Pennsylvania Guardianship Bench Book. This Bench Book is a comprehensive reference guide to best practices and includes information regarding less restrictive alternatives to guardianship, guardianship rules and forms, checklists, the management of guardianship cases, and recent legislation involving guardianship. The Bench Book was provided to all orphans’ court judges and an online version is available on the Unified Judicial System’s website.

Response to the COVID-19 Pandemic

The COVID-19 pandemic had a significant impact on both the health of our elders and the ways in which the judiciary conducted its business. As Pennsylvania Governor Tom Wolf was preparing to order the closure of all non–life sustaining businesses due to the public health emergency, on March 16, 2020, the Supreme Court issued an order authorizing the presiding judge in each county to declare a local judicial emergency to protect the health and safety of court personnel and the public. Subsequent orders directed that all courts should generally be open to conduct business with limited in-person access and proceedings. Most judicial districts operated under an emergency declaration from March 2020 through July 6, 2021, at which time they returned to pre-pandemic operating status by order of the Supreme Court.

Shortly after courthouses throughout the Commonwealth temporarily ceased or limited their in-person operations, the Advisory Council recognized the need to address promptly the extraordinary challenges the COVID-19 pandemic created and that severely impacted vulnerable older Pennsylvanians and their access to justice. Specifically, the OEJC and the Pennsylvania Department of Aging issued a joint press release to ensure the Commonwealth’s elders knew the courts remained open for immediate legal protection, including temporary protection from abuse actions, guardianship representation, and any pleadings or motions relating to public health concerns and involving immediate and irreparable harm. Information about organizations available to help with legal assistance was also provided as well as the statewide Elder Abuse Reporting Hotline number.

The pandemic drove other changes to the judicial process. For example, in April 2020, the Advisory Council determined the increased use of advanced communication technology (ACT) would allow homebound elders and long-term-care residents requiring access to essential court services and the Internet to fully participate in court proceedings from a safe environment. Judges, attorneys, guardians, elders, and their family members uniformly reported their experience with ACT as a tool to combat the challenges presented by the pandemic was favorable.

Immediately after the Supreme Court issued its March 16, 2020, order, updates were provided on the Unified Judicial System’s website about the judiciary’s response to the COVID-19 pandemic’s effect on court operations and proceedings. Similarly, the Advisory Council and OEJC posted resource information for the public regarding elders on the Frequently Asked Questions page. In May 2020, the OEJC provided all presiding judges, district court administrators, clerks of the orphans’ courts, and guardians with information and resources for guardians to help them carry out their duties during the pandemic. The OEJC stressed guardianship reports remained due and guardians still had a duty to maintain contact with the incapacitated person (IP) during the pandemic. In a similar vein, in March 2021, the OEJC sent information responding to frequently asked questions about the COVID-19 vaccine to guardians of IPs in nursing homes.

Report Reviewer Training for Judges, Court Staff, and Orphans’ Court Clerks

Court review of guardianship reports is considered one of the best ways to monitor and protect the safety, well-being, and financial assets of persons under guardianship. In 2021, the OEJC created an educational program composed of three courses for reviewing reports, each of which covers a different guardianship report.

Less Restrictive Alternatives to Guardianship

Responding to the latest trend in guardianships, over the last two years, the Advisory Council has been examining less restrictive alternatives to guardianship. Such alternatives include supported decision-making, advance directives, powers of attorney, and formal and informal services, all of which further an IP’s greater self-determination. As part of this inquiry, two Advisory Council members, Montgomery County Administrative Judge Lois E. Murphy and Karen C. Buck, Esquire, executive director of SeniorLAW Center, were invited to serve as delegates to the Fourth National Guardianship Summit: Maximizing Autonomy and Ensuring Accountability, organized by the National Guardianship Network and hosted by Syracuse University’s College of Law. At the conclusion of the summit, the delegates adopted 22 recommendations, including the elimination of plenary guardianships (and, if a guardianship is imposed, requiring tailored guardianship orders in all cases) in favor of statutes, court rules, policies, and processes in every state that would require courts to consider supported decision-making as an alternative to guardianship.

Since the summit, the Advisory Council has been working to create optional forms for final decrees to increase the efficacy of limited guardianship, information about supported decision-making, an educational presentation about alternatives to guardianship for the legislature, and modifications to pro bono attorney training to include alternatives to guardianship.

Resource Guides for Health Care Providers and Financial Institutions Regarding Powers of Attorney and Guardianship Orders

The Advisory Council recognizes the difficulty and confusion created when frontline, nonlegal staff in the health care and financial sectors are presented with legal documents such as powers of attorney and guardianship orders and the resulting delayed access to IP’s health care, financial information, or both, when legal documents are interpreted incorrectly or frontline staff denies requests.

In an effort to eliminate confusion on the part of frontline staff and help reduce occurrences of elder abuse and financial exploitation, the Advisory Council and OEJC have partnered with representatives from the health care and financial sectors to create three resource guides: (1) a Resource Guide for Health Care Providers; (2) a Resource Guide for Financial Institutions Regarding Powers of Attorney (POA) and Guardianship Orders; and (3) Definitions for Resource Guides for Financial Institutions and Health Care Providers.

In December 2021, the Resource Guide for Health Care Providers and Definitions for Resource Guides for Financial Institutions and Health Care Providers were published. In May 2022, the Resource Guide for Financial Institutions Regarding Powers of Attorney (POA) and Guardianship Orders was released.

Town Halls on Elder Abuse and Financial Exploitation

As a result of the COVID-19 pandemic, the Advisory Council considered ways to increase public awareness about elder abuse and financial exploitation in a virtual setting. In spring 2021, under the leadership of Philadelphia Administrative Judge Sheila A. Woods-Skipper, and with interagency collaboration, two one-hour virtual “town hall” sessions focusing on the prevention of and response to elder abuse and financial exploitation were developed. The first town hall session, Understanding and Identifying Elder Abuse, was presented on June 16, 2021, and the second town hall session, Preventing and Responding to Financial Exploitation, was presented on June 23, 2021. Victims and panelists discussed their experiences with elder abuse and financial exploitation, the actions and initiatives undertaken by Pennsylvania’s courts and justice partners to address these issues, how to recognize elder abuse and financial exploitation, and what to do when abuse is suspected. Attendees received information regarding the investigation of and remedies for financial exploitation.

New Legislative Initiatives

Criminalizing the Posting of Audio, Video, or Still Images of Care-Dependent Persons on Social Media with the Intent to Ridicule or Demean

The Advisory Council and the OEJC are concerned about the improper posting of photographs, audio, or video of care-dependent persons, which is considered a form of elder abuse. They have called for the enactment of legislation criminalizing such conduct. Through AOPC’s Legislative Affairs Department, the Advisory Council sought to focus the legislature’s attention on such social media abuse of care-dependent persons. As a consequence, the Advisory Council played a role developing and providing feedback and policy guidance on legislation to criminalize such actions taken against elders. The proposed legislation, which the General Assembly passed, and which Governor Tom Wolf signed into law in June 2021, defines the abuse of a care-dependent person to include the use of any audio, video, or still image of a care-dependent person in any format or medium, on or through any electronic service, wireless communication, or any form of electronic service or wireless communication as pertaining to communication with the intent to ridicule or demean.

Creating and Defining a New Criminal Offense: Financial Exploitation of Elderly or Care-Dependent Persons

The Advisory Council additionally advocated for legislative action regarding the financial exploitation of elderly or care-dependent persons. The proposed legislation, which the General Assembly passed, and which Governor Tom Wolf signed into law in June 2021, provides financial exploitation, as defined in the legislation, ranges from third-degree misdemeanor to first-degree felony depending on the amount of money, assets, or property involved.

Appointment of Counsel in Guardianship Proceedings

Under Pennsylvania law and the U.S. Constitution, a court must appoint counsel to represent persons in certain court proceedings where individuals’ constitutional rights are in jeopardy. In adult guardianship proceedings, persons are at risk of losing all their fundamental constitutional rights to decision-making and autonomy concerning their finances and their residential and medical decisions. Thus, the lack of adequate representation in this area is a matter of significant concern.

Pennsylvania’s guardianship statute envisions a right to counsel but places the burden on the alleged incapacitated person (AIP) to request counsel. Unfortunately, this results in many instances of an AIP not being represented at trial. A 2012 report of Pennsylvania’s Joint State Government Commission Advisory Committee on Decedents Estates Laws contains analysis of the concept for the appointment of counsel in adult guardianship cases. Following the report, legislation was introduced to incorporate its numerous recommendations, including appointment of counsel for AIPs. The Advisory Committee continues to work with the executive and legislative branches on this important issue.

Conclusion

Looking back, it was nearly 10 years ago that Chief Justice Ronald Castille asked me to convene and chair the Elder Law Task Force. Since that time, the Pennsylvania Supreme Court, through the unrelenting dedication of the Advisory Council and the OEJC, have made great strides to ensure Pennsylvania elders receive the access and fairness to which they are entitled from our courts.

Vice President Hubert H. Humphrey once said, “The moral test of a government is how it treats those who are at the dawn of life, the children; those who are in the twilight of life, the aged; and those who are in the shadow of life, the sick, the needy and the handicapped.” While there remains much to do for our elderly population, the accomplishments of the Elder Law Task Force, the Advisory Council, and the Office of Elder Justice in the Courts represent the Pennsylvania Supreme Court’s ongoing effort to meet this moral test.

Portions of this article were previously included in progress reports issued by the Pennsylvania Supreme Court’s Elder Law Task Force and Advisory Council on Elder Justice in the Courts.