The pdf for the issue in which this article appears is available for download: Bifocal, Vol. 39 Issue 3.
Guardianship practice in Maryland is undergoing big changes with major court rule amendments effective January 1, 2018. The rule and accompanying resources were prompted by an active judicial group called the Guardianship/Vulnerable Adults Workgroup of the Maryland Judicial Council’s Domestic Law Committee. This interdisciplinary Workgroup is a guardianship reform court-community partnership similar to the WINGS (Working Interdisciplinary Networks of Guardianship Stakeholders) groups that have emerged in 25 states (see http://ambar.org/wings). In this Bifocal interview, Hon. Karen Murphy Jensen, who chairs the Workgroup, and Nisa Subasinghe, Esq., who staffs it on behalf of Maryland’s Administrative Office of the Courts, describe the Workgroup and implementation of its recommendations.
Q & A
Bifocal: Tell us a little about the Workgroup and its ingredients for success.
Judge Jensen: The Workgroup is a multidisciplinary group working primarily to reform guardianship court practices in Maryland. Judges, court staff, private attorneys, Department of Aging and Adult Protective Services staff, executive branch representatives, and legal service providers are all active participants. We also have a public guardian program manager and individuals who have served as guardians for family members.
The Workgroup’s main ingredient for success is the unwavering support of Mary Ellen Barbera, Chief Judge of the Maryland Court of Appeals, and her administration. Before Chief Judge Barbera's appointment, there was a small group of dedicated practitioners and judges studying current court guardianship practices and suggesting reforms; they laid a lot of the groundwork for this Workgroup. But Chief Judge Barbera’s decision to make this issue a priority really highlighted the need for change, and the project gained a lot more momentum. What this Workgroup has accomplished in a relatively short time demonstrates how committed this administration is to the cause.
Another ingredient is the people. The Workgroup’s members are passionate about this work and have been generous with their time, resources, and expertise.
Judge Jensen: As noted by Chief Judge Barbera, the senior population is expected to increase precipitously in the next few years, and the demands on the courts in elder-law-related cases is also anticipated to increase. There was an opportunity to re-evaluate the qualifications of attorneys appointed to represent what Maryland law calls “alleged disabled persons” in guardianship proceedings. Additionally, in anticipation of a significant increase in that specific population, a review of how the courts select and support guardians of the person and guardians of the property, including effective monitoring of the guardianship estate, was necessary, in order to best protect vulnerable Marylanders moving forward. As a result, the Workgroup was asked to make recommendations
Bifocal: What was the Workgroup’s process for developing its recommendations?
Judge Jensen: The Workgroup’s charge was daunting, and I knew we needed an organized plan. I decided to divide the Workgroup into three subgroups, each led by one of the judges on the Workgroup. One was tasked with outlining recommendations to address the concerns about court-appointed attorneys, another focused on guardians of the person, and the last on guardians of the property.
Nisa Subasinghe: Before each subgroup met, they reviewed guardianship practices in the other states as well as best practice literature including resources developed by the American Bar Association, the National Association for Court Management, and the National Center for State Courts. The National Probate Court Standards were particularly helpful. When those materials highlighted states with especially innovative or helpful strategies, we reached out to them for more information. We also posted requests on guardianship and elder law listserves to find examples of training and eligibility standards and curricula for guardians and attorneys. After reviewing this information, the subgroups met to discuss best practices which could be implemented in Maryland.
Judge Jensen: In addition to the subgroups’ focus areas, there were also ancillary issues to which the literature offered promising solutions, such as the development of resources for guardians, training and guidance for judges, and the expansion of alternative dispute resolution in guardianship cases. We added these initiatives to our recommendations. In May 2016, the Workgroup’s 25 recommendations were unanimously approved by the Judicial Council and the Workgroup was charged with implementing them.
Bifocal: In your view, what are the three most significant Workgroup recommendations?
Judge Jensen: First, the training and eligibility standards for court-appointed attorneys. They play an important role in protecting the rights of vulnerable Marylanders and these standards help ensure that their clients have a voice, that guardianship is imposed only if necessary, and if needed, that the right person is appointed. Second, the orientation and training requirements for guardians. We want to encourage family members and those closest to the alleged disabled person to serve as guardians, but problems can arise if they are unclear of their role, powers, and duties. The Workgroup thought it was important to empower them with information and resources to be successful. Third, the training and resources for judges. The court is the ultimate guardian and it is imperative that judges have the tools to manage and monitor guardianship cases effectively.
Nisa Subasinghe: While guardianship is a mechanism to stop or prevent abuse, neglect, and exploitation, it can also create opportunities for bad actors. The overarching goals of the recommendations are to promote guardianship as a last resort and, where appropriate, to make sure the right person is appointed guardian, and for there to be safeguards to protect the physical, emotional, and financial well-being of those under guardianship.
Bifocal: Describe the development and implementation of new forms under the new court rules.
Judge Jensen: After the Workgroup’s recommendations were approved, the chair and staff of the Standing Committee on Rules of Practice and Procedure invited the Workgroup to propose rules to support implementation of its recommendations. While we prioritized the court-appointed attorney and guardian standards, we took the opportunity to advocate for other much-needed changes, including standardizing the certificates of competency filed with petitions for guardianship of alleged disabled persons. For years, certificates varied in form and content, and from court to court. We asked for a rule change that would require the use of form certificates developed by the Workgroup, based in part on the Model Clinical Evaluation Report found in the ABA/APA publication, Judicial Determination of Capacity in Older Adults in Guardianship Proceedings.
Nisa Subasinghe: The new certificates allow healthcare practitioners to provide better information about their patients’ functional abilities and limitations. This information is important to have when deciding what powers to grant a guardian or if one is needed at all. We also developed forms to help guardians take certain actions such as filing proof they opened a restricted account, resigning, terminating the guardianship, and we created a general motion for appropriate relief. Many guardians do not have attorneys and fail to take certain actions simply because they do not know how to carry them out. These forms will help.
Judge Jensen: The Maryland Judiciary is committed to promoting access to justice and, like many states, has a variety of resources for self-represented litigants. Since the court is the ultimate guardian, there is a responsibility to support guardians appointed by the court. To that end, the Workgroup created a subgroup to focus on the development of guardianship forms and make sure they meet the Judiciary’s plain language standards.
Bifocal: Talk about the new training requirements and resources for guardians.
Nisa Subasinghe: Before appointment, guardians must watch a brief orientation video program that covers the role and responsibilities of guardianship. The video provides a realistic idea of what being a guardian entails. After appointment, guardians must complete a training program that provides specific information on their role and responsibilities, how to make certain decisions, how to identify and respond to signs of abuse, neglect, and exploitation, and available community resources. The Workgroup developed templates courts can adapt for local in-person training programs, but we recognized that not all courts can host regular live programs, and they may not be easily accessible to guardians.
To address this reality, the Workgroup developed video versions of the training programs guardians can watch and file a certificate of completion. These are posted on the Judiciary’s website. In the near future, we will replace the videos with more engaging interactive online courses that will include a series of video clips on some of the more complex topics such as decision-making standards and financial exploitation. A guardianship webpage is now up and running replete with checklists, forms, and links to resources.
Bifocal: Tell us about the new requirements for attorneys.
Judge Jensen: Court-appointed attorneys must be members in good standing of the Maryland bar, demonstrate financial responsibility, and unless waived by the court, be trained in certain aspects of guardianship law and practice. The training must cover fundamentals of guardianship law and practice, manifestations of mental disease and disabilities, the role of counsel, ethical considerations, and signs of abuse, neglect, and exploitation. The training requirements help increase attorneys’ ability to advocate zealously for their clients.
Bifocal: What challenges do you foresee in implementing the new requirements?
Judge Jensen: These are big changes and courts, attorneys, and guardians need time to navigate them. Maryland’s circuit courts are not uniform and the changes will affect each court differently. Guardianship attorneys need to familiarize themselves with the new requirements and procedural changes. The orientation and training requirements add a step to the process that may overwhelm some prospective guardians and each individual court will have to respond to that reality.
Along the way, the Workgroup consulted with and got feedback from judges, court staff, private attorneys, public agencies, and other service providers outside of the Workgroup. It was clear that the Workgroup would need to provide ongoing technical assistance and develop resources to help everyone navigate these changes once in effect. While sensitive to the impact on family guardians, we believe it is important for guardians to understand what is expected of them and know what tools are available upfront, and for courts to screen out those unable to take on the responsibility.
Nisa Subasinghe: We knew there would be a transition period and were encouraged by what we learned from other states with similar requirements. Once systems are in place, courts have more information and are able to make better-informed decisions about who needs a guardian and how to appoint, one if necessary. Guardians also have more support and courts can better monitor the individuals and estates under guardianship. We also knew it was important to implement these changes now. With the anticipated increase of the population of Marylanders age 65 and older, the courts need to be ready to handle more guardianships.
Bifocal: What advice do you have for other states forming interdisciplinary working groups, or WINGS, on guardianship reform and promotion of less restrictive options?
Judge Jensen: Get the support of your chief judge, the judicial leadership, as well as court administration. When Chief Judge Barbera made guardianship reform a priority, many internal and external collaborations were established and driven by her support. I also suggest dreaming big but setting attainable goals and realistic timeframes. Try to anticipate barriers; there will be many. Think creatively, expect to pivot, and run ideas by practitioners outside of your core working group. You also need the right people. Get as many perspectives as possible, but find people who are able to set aside their individual agendas, rally around shared goals, and work collaboratively. Our Workgroup is filled with hardworking professionals with demanding full-time jobs who have volunteered countless hours to attend meetings, join conference calls, and respond to the hundreds of e-mails circulated among the members. They do this work because they care.
Nisa Subasinghe: I recommend seeing what other states are doing and taking advantage of the experts from and resources developed by the American Bar Association’s Commission on Law and Aging, the National Center for State Courts, and the National Association for Court Management. I am so proud of what Maryland is doing, but much of what we did was adapt established best practices. I also recommend finding the right leader. The minutes of a Workgroup meeting held in 2015 reflect that Judge Jensen did, in fact, tell Workgroup members to dream big. She set the Workgroup’s vision, keeps members focused and motivated, and is an incredible advocate. There is still a lot of work ahead of us, but we have the leadership, resources, and support we need to get things done.
Editor's Note: The Maryland Guardianship/Vulnerable Adults Workgroup is listed on the ABA Commission’s website profiling Working Interdisciplinary Networks of Guardianship Stakeholders (WINGS), as a state entity similar to WINGS. See http://ambar.org/wings.
About our interviewees:
The Hon. Karen Murphy Jensen is chair of the Guardianship/ Vulnerable Adults Workgroup of the Maryland Judicial Council’s Domestic Law Committee. Judge Jensen served as an Administrative Judge on the Caroline County Circuit Court from 1999-2016. In the early 2000s, she started a problem-solving court beginning with a juvenile program and transitioning to an adult program serving those with mental illnesses and drug addiction issues. She also was a founding member of Mid-Shore Pro Bono. Prior to that, she served as Assistant County Solicitor for Anne Arundel County, MD. She has a JD degree from the University of Maryland.
Nisa C. Subasinghe is an attorney with the Department of Juvenile and Family Services at the Maryland Judiciary’s Administrative Office of the Courts, where she serves as a subject matter expert on guardianship and related matters. She staffs the Maryland Judicial Council’s Guardianship/Vulnerable Adults Workgroup and coordinates and manages its ongoing projects. She also serves on the Council’s Domestic Law Committee and on several of its workgroups. Prior to joining the Maryland Judiciary, Ms. Subasinghe was a crime victim advocate. She is a graduate of The Catholic University of America’s Columbus School of Law.