Advancing Elder Rights: Our Accomplishments in 2018

The Commission is Overhauling Guardianship and Supporting Decision-Making Rights

Every day individuals lose their decision-making rights to a guardianship system that too often, too quickly determines “incapacity.” Their personhood is stripped away, often without needed court accountability.

Every day some guardians offer needed care and protection, while others take advantage of their position of trust, exploiting instead of safeguarding assets.

Many guardians, both family members and professionals, are exemplary and dedicated, stepping in at crisis points to prevent abuse, while an unknown number of others may commit abuse or neglect.

Some individuals are alone, often indigent, and if there are no other options they may need a guardian’s help to live better lives. Other individuals are needlessly labelled “an incapacitated person” and are unable to extricate themselves – they may be over medicated, overinstitutionalized, and without counsel or support.

In the U.S., we have not just one guardianship system, but more than 50 state and territorial processes. While many jurisdictions have passed laws strengthening rights and court oversight, it is hard to change common practices. And there is very little data and research to shed light on the archaic judicial process of guardianship and its impact on people’s lives.

• Since the 1980s, the ABA Commission on Law and Aging has been pushing for guardianship change. We have consistently tracked state guardianship legislation each year and pointed the way toward improvements. We have been a clearinghouse for hundreds of requests for technical assistance — from attorneys to judges, from social workers to legislators and advocates.
•  We are pushing for changes in legal practices to better support decision-making. For example, we published the PRACTICAL Tool for Lawyers: Steps in Supporting Decision-Making. In 2018 we got the word out through webinars, articles, legislative comments, trainings and alerts.
• We are advocating the use of other options for persons with diminished abilities that are not as restrictive as guardianship and don’t remove individual rights. For example, in 2018 we worked with the National Center for State Courts on a national guide that will help people choose such options.
• We are pressing for better education for guardians so they will more often honor people’s wishes and preferences. And we are pushing for courts to limit guardian orders to only those areas needed. For example, we are actively advocating for state adoption of the new Uniform Guardianship, Conservatorship and Other Protective Arrangements Act that encourages guardians to ask the person what he or she wants in making decisions, and encourages courts to limit orders to only what is needed.
• We are championing better court oversight. For example, In 2018 we worked with the National Center for State Courts to publish a series of background briefs on conservator exploitation, describing monitoring approaches that work.
• We are enabling state stakeholders to work together strategically on guardianship improvement specific to their state, through Working Interdisciplinary Networks of Guardianship Stakeholders (WINGS). WINGS opens doors to communication that can lead to changes in practice. WINGS can drive changes that any single agency or organization could not. For example, thanks to WINGS, in 2018 Alaska has better guardian accounting forms, Idaho has a judicial bench card on guardianship and has court monitors in each judicial district; Oregon is jumpstarting the use of less restrictive options; Utah has permanent funding for its guardianship volunteer visitor program; and Florida is designing a curriculum for judges and attorneys to better support individual choices and ensure guardian accountability. The Administration for Community Living has supported our work in this important area.
• We are advocating for federal actions to strengthen state efforts toward change. In 2018 we submitted comments on behalf of the American Bar Association to the Senate Committee on Aging, advocating for federal support to help states fight guardianship abuse and honor individual rights.

The Commission is Combatting Elder Abuse, Neglect, and Financial Exploitation

The Commission continued its efforts to expand and strengthen the justice system’s role in preventing, detecting, and remedying the devastating and costly problem of elder abuse, neglect, and exploitation (“elder abuse”).

An estimated 10% of older adults experience some form of elder abuse, although the actual rate is likely much higher as research indicates that only 1 in 4 to 1 in 23 cases is reported. The annual costs to victims has been estimated at $2.9 billion to as high as $36.5 billion.

Elder abuse in any form significantly enhances the risk of hospitalization, nursing home admission, and premature death.

The Commission continues to combat elder abuse on multiple fronts. In addition to the guardianship related efforts described above, the initiatives that follow represent cutting-edge research, education, and advocacy.

• We are strengthening elder abuse law, policy, and practice. In early 2018, the Commission began a new project to enhance and evaluate the capacity of elder abuse fatality review teams (EAFRTs) to improve the delivery of services to elder abuse victims. The project is funded by the U.S. Department of Justice, Office of Victims of Crime (DOJ/OVC).

Working with partners at the University of Texas Health Science Center at Houston, the Commission is surveying EAFRTs, collating and reviewing data, and assessing the impact of EAFRTs. The results will be used to update and expand Elder Abuse Fatality Review Teams: A Replication Manual (ABA, 2005), which is available on the Commission’s website at https://aemqa.americanbar.org/content/dam/aba/administrative/law_aging/fatalitymanual.pdf , provide technical assistance and training, assess whether   a more rigorous evaluation of the EAFRTs is possible, and inform development of future activities.

• We are developing recommendations to improve victim services and enhance public policies about financial exploitation by conservators. Working in collaboration with the National Center for State Courts, the Virginia Tech Center for Gerontology, and the Minnesota Judicial Branch, this effort produced a report with recommendations, now under review by Department of Justice Office of Victims of Crime, and eight issue briefs on the following subjects:
  • Examples of Conservator Exploitation: An Overview;
  • Conservator Exploitation in Minnesota: An Analysis of Judicial Response;
  • Detecting Exploitation by Conservators – Court Monitoring;
  • Detecting Exploitation by Conservators – Systemic Approach;
  • Court Actions Upon Detection of Exploitation;
  • Innovative Programs that Address Financial Exploitation by Conservators;
  • Data Quality Undermines Accountability in Conservatorship Cases; and
  • Supporting Victims of Conservator Exploitation.
  
  You can find the documents on the NCSC website at http:// www.eldersandcourts.org/Other-resources.aspx 
• We are supporting federal, state, and community efforts to improve laws and practices related to elder abuse by providing technical assistance to Congressional committees, federal agencies, 26 state AARP offices as consultants to AARP’s State Advocacy and Strategy Integration Team, and to numerous state and local law and aging network providers..

We are educating justice system and allied professionals to better detect, prevent, and remedy elder abuse. We provided continuing professional education to approximately 2,000 lawyers, judges, and other professionals through presentations at the National Aging and Law Conference, the National Adult Protective Services Association Conference, and National Center on Law and Elder Rights webinars. We also conducted the final continuing legal education pilot presentation for the Elder Investment Fraud and Financial Exploitation Prevention Program Legal, a partnership between the Commission and the Investor Protection Trust and Investor Protection Institute, at The Missouri Bar’s Estate Trust and Elder Law Institute.

The Commission is Improving the Knowledge and Ability of Lawyers and Advocates in Delivering Legal Services.

Serving the law-related needs of older adults requires a broad appreciation of how law and policy interact with every aspect of aging, from health and long-term care, to financial security, housing, and the challenges to individual autonomy and social engagement. Training lawyers and aging advocates remains a core priority of the Commission.

• We serve as lead organizer of the annual National Aging and Law Conference (NALC). The NALC is the only legal conference specially designed for legal services lawyers and other advocates who serve older persons. It provides a critically needed service to this growing sector of the legal profession. Since the 1980s, the Commission has partnered with other advocacy organizations supporting an annual conference, but in 2014, it assumed the role of lead partner in collaboration with ABA CLE and successfully expanded the ABA’s leadership role in this arena.

The 2018 conference:

• Took place October 25 & 26 at the Crowne Plaza Old Town, Alexandria, Virginia. The 229 attendees came from 40 states, the District of Columbia, Puerto Rico, Canada and Nigeria. The largest number of attendees live or work in Washington DC, followed by Maryland, Connecticut, Virginia, Florida, New York, and Michigan. Attendees come from a variety of backgrounds, with the majority working in legal aid, government and non-profit. This year nearly 5% of attendees were members of the ABA Law Student Division.

• Featured four plenary sessions and 30 workshops arranged over two full days. A half-day preconference on legal advocacy skills on Wednesday was attended by 62 people. Over 80 expert speakers shared their expertise with attendees. 

Planning is underway for the 2019 National Aging and Law Conference to be held October 31-November 1 at the Marriott Crystal Gateway in Arlington, Virginia.

• We partner in the National Center on Law and Elder Rights. For the third year in a row, we are a part of the Administration for Community Living-funded National Center on Law and Elder Rights (NCLER). We provide training, develop written resources, produce “alerts” on important topics, provide expert advice to professionals in law and aging, and spread the word about the NCLER. We are charged with being the NCLER experts on elder abuse, guardianship and guardianship reform, advance planning and supported decision making. This past year, the NCLER webinar series drew over 12,000 participants who attended the live webinars more than 22,000 times. The webinars, which are provided free of charge to attendees, help ensure that aging advocates have serve their clients with the highest level of knowledge and skills.
•  We expand the knowledge and skills of the private bar through the ABA Elder Law Essentials Webinar Series. This series is presented in collaboration with ABACLE, on a pay-per-view basis and includes continuing legal education (CLE) credits). The CLE series delves into topics such as:

• Ethical Challenges in Supporting Client Independence and Autonomy
• Returning Clients Home from a Nursing Home: Nursing Home Transition Success Through Collaborative Advocacy
• Building a Late-Life, Decision-Making Infrastructure For People Aging Alone
• Evaluating Nursing Home Personal Injury Cases.

• We provide a place for law student interns and externs to gain a valuable footing in the field of law and aging. Law student volunteers are an essential part of developing and maintaining our substantive legal and policy database. We host up to two law students per semester with a dual goal of the development of the law student and moving our research agenda forward.

The Commission is Strengthening Patients’ Voices in Health Care Decision-Making and Access to Services.

The Commission places a high priority on promoting law, policy, and practice that ensures the individual’s wishes are known and honored across the continuum of care from acute illness to chronic illness, advanced illness, and ultimately death. Despite the recognition of the individual’s right to make their own health care decisions, the care and treatment an individual may get is too often not the care and treatment they desire, especially at the end of life. This past year brought the culmination of two important projects and continued our efforts in tracking legislation and providing technical assistance.

• We convened legal and medical experts in advance care planning to identify ways to align the best practices of both professions. Under a grant from the John A. Hartford Foundation and the Borchard Foundation Center on Law and Aging, these experts developed a set of consensus best practice principles, a practice checklist for lawyers, and a resource compilation of tools that lawyers can give to clients to guide the discussions they need to have about values, priorities, and health care wishes. These are compiled in a free publication, Advance Directives: Counseling Guide for Lawyers.
• We published a quick reference guide for legal and clinical professionals on the decision-pathways for individual health care decision-making. Funded by the Retirement Research Foundation, Pathways to Health Care Decision Making explains the six ways that the locus of authority for health care decision making can change, in order of preference from by the Individual, to a court appointed fiduciary. The work nicely supplemented our extended research efforts on health care surrogate decisionmaking funded by the Foundation.
• We continue to provide technical assistance and track legislative developments both federally and across the states related to advance care planning. Our legislative charts cover several aspects of advance directive laws, default surrogate laws, physician orders for life-sustaining treatment (POLST), and related matters. Serving as an advisor to the POLST Paradigm initiative, we continue to press for high standards of structure and implementation nationally.

The Commission Stands for Ensuring Access to Justice for All Older Persons

The United Nations has described access to justice as the ability of people to seek and obtain a remedy through formal or informal institutions of justice, and in conformity with human rights standards. We know that achieving access to justice requires the existence of an adequate legal framework, accurate knowledge of one’s rights, access to representation, and access to institutions that can review and remedy wrongdoings. The extensive policy and programmatic work already described above relating to guardianship, supported decision-making, elder abuse, and health care directly promote each of these elements. In addition:

• We have advocated for an International Convention on the Rights of Older Persons to ensure an adequate legal framework. The Commission led the effort this past year to establish an ABA policy in support of the drafting of a United Nations Convention on the Rights of Older Persons. Supporting the ABA liaison to the U.N.’s Open-Ended Working Group on Ageing, the Commission has helped the ABA to develop a leadership role in the discussions of the Working Group which has been examining ways to strengthen the rights and protections of older persons since 2011.
• We have shined a light on the pro bono legal assistance through emeritus programs by tracking the development of court emeritus rules and programs that tap the skills of retired lawyers.
•  We support the systems development of state legal services developers and legal aid programs to expand access to legal information, advice, and representation for older persons.
• We provide background to the media and educational materials to the public to ensure accurate knowledge of the rights and needs of older persons. The Managing Someone Else’s Money series, prepared by the Commission for the Consumer Financial Protection Bureau has surpassed one million copies distributed by the CFPB. Other consumer publications, especially those dealing with health-care decision-making continue to be widely used.
• We provide technical assistance to advocates and legislative analysis in guardianship, elder abuse, health decisions law, and other matters to ensure that the rule of law is supportive of the rights and needs of older persons.

Moving forward, elders in America face ever-growing challenges to their autonomy, independence, and engagement in family and society. With your help, the Commission will continue to draw upon the strengths of an aging society to identify and find solutions to its hazards and vicissitudes.