(The pdf for the issue in which this article appears is available for download: Bifocal, Vol. 41, Issue 1.)
More than 25 years after New York enacted a guardianship law to best serve individuals’ needs and preserve rights, a significant gap remains between its implementation and practice. Now a new report cites the urgency in addressing these challenges for an often-overlooked population of needy adults with no one to help.
The report, Incapacitated, Indigent, and Alone: Meeting Guardianship and Decision Support Needs in New York, was released in September by The Guardianship Project at the Vera Institute of Justice in New York City. It was funded by the New York Community Trust and authored by Pamela Teaster (Virginia Tech Center for Gerontology); Erica Wood (American Bar Association Commission on Law and Aging); John Holt and Kimberly George (The Vera Guardianship Project). For the full report with recommendations, see https://www.vera.org/publications/incapacitated-indigent-and-alone .
Several key factors set the stage as to the urgency and complexity of the New York scenario and the need for the report:
First, like many states, New York is aging. A 2019 report by the Center for an Urban Future[i] found that the number of New Yorkers ages 65 and over increased by 26 percent over the past decade. The number of 85-plus New Yorkers has also increased by 26 percent since 2007. As the state’s older adult population grows, the number living in poverty has increased by 11 percent since 2007. According to the Alzheimer’s Association, New York has 400,000 people with an Alzheimer’s diagnosis. That figure is expected to climb by 15 percent by 2025.[ii] The cases profiled in the Vera study show a population with a troubling combination of mental health problems, dementia, abuse and exploitation, and difficult family dynamics. A recurring theme was that for this target population of adults who are “incapacitated, indigent and alone,” housing plays a huge role in guardianship cases, and that eviction is a gateway to guardianship that may be overbroad or unnecessary.
Second, in 2005 the Vera Institute of Justice and New York State’s Office of Court Administration launched The Guardianship Project (TGP) in New York City to serve as court-appointed agency guardian for the largely indigent target population at risk of falling through societal cracks. The intent was to enable these individuals to live as independently as possible, often in a home or community-based setting. Vera has been a bright spot on the scene but has not had a rigorous assessment. The new report provides that assessment and analyzes whether TGP is an appropriate model for expansion to other areas of the state, where the target population lacks services.
Third, New York has no statewide public guardianship program. In 2008, a national public guardianship study[iii] found that 27 states had statutorily established explicit public guardianship programs. Since that time, two additional states enacted public guardianship legislation, bringing the total to 29.[iv] While New York has a piecemeal approach in which, as described below, various entities serve as guardians of last resort, there is no statewide system nor funds providing for such a system. The study in the report updated information on selected state public guardianship programs and sought perspectives on establishing such a program in New York.
The study included online surveys of guardians, judges, court evaluators and court examiners as well as in-depth telephone interviews with judges, court examiners, mental hygiene legal services, Vera Guardianship Project staff, and others. Five topics in the study are summarized below:[v]
Who Needs Guardianship and Decision-Support Services? What Services Are Needed?
While data are lacking, the Vera study uncovered a compelling unmet need for guardianship and related decision support services for individuals in New York who are indigent, have been named by a court as “incapacitated,” and who have no one to help. The need is especially pressing for individuals facing or at risk of eviction, and for those with a combination of chronic conditions including mental illness. Often these are the most resource-intensive cases, yet these are the cases where no fee is available.
The study noted that frequently guardians place individuals in nursing homes because it is difficult to find and arrange for the care they need in the community. Such community-based care is less expensive for the state than Medicaid-based nursing home care and is usually what people want. The study recommended that New York fund comprehensive home and community-based care for older adults and people with disabilities, including low-income housing.
Guardianship is a legal proceeding, and attorneys make up a large proportion of guardians appointed by the court for no-fee or low-fee cases when there is no one else to serve. However, the needs of the target population are not strictly legal in nature; instead, they are a complex mix of legal and social services. The skills of social workers, nurses and occupational therapists often are required to find solutions that will help to keep older adults at home or in the community.
While the target population of individuals who are indigent and alone needs more available and skilled guardianship services, guardianship is not always the best solution. There is also a need to screen for less restrictive options. The report recommended legal and judicial training on screening for these options, including a range of decision-supports and supported decision-making. Forms that emphasize screening and tracking the use of these options could help to avoid unnecessary appointments, making guardianship a last resort. Additionally, the study noted that New York court procedures should increase access for requests to end the guardianship and restore rights when it is no longer needed.
Who Serves as Guardian for the Target Population?
New York has four “guardian of last resort” schemes. While each helps to meet the need, they are all stretched thin, and taken together, there is still a gaping hole in serving the target population.
New York law and regulations provide for local commissioners of social services to act as the guardian of last resort. In some but not all areas of the state, the commissioner names adult protective services (APS) to fulfill guardianship responsibilities. The study found that APS guardianship practices vary throughout the state. In some areas of the state, particularly upstate, APS not only investigates the need for guardianship and petitions but serves as guardian as well – a role the study noted is an inherent conflict of interest. While APS is responsible for investigating reports of abuse, neglect, and financial exploitation, the study did not find any such APS investigations of suspected abuse by guardians, which would provide an outside eye and assist the court with monitoring.
New York law also provides for “community guardian programs” funded by local social services offices. New York City has three such programs. Community guardian programs must relinquish cases when a person enters a nursing home or similar residential facility, leaving a serious and sometimes life-threatening gap where there is no one to make health and personal decisions or to monitor facility care. Moreover, the community guardian programs are overwhelmed with cases, and require additional resources, as well as consideration of a staff to client ratio.
New York Judicial Rules Part 36 provides for appointments by the court, including appointments of guardians. The Part 36 list of potential guardians is predominantly composed of lawyers. The number of professionals on the list willing to serve as guardians in no-fee/low-fee cases (as opposed to court evaluators, court examiners, or other roles) for this challenging population has dwindled. Many professionals cannot afford to take no-fee/low-fee cases because of the enormous complexity and time intensity required. Even though the cap on compensation recently was raised, judges cannot rely on the list to fully meet the growing number of cases.
Finally, New York also has scattered not-for-profit agencies that take guardianship cases. Such agencies are vastly under-funded to serve as guardian and do not exist throughout the state. Individuals we interviewed agreed that funding for additional nonprofits, especially those with a multidisciplinary team model and an emphasis on community-based settings, would help to curb the unmet need.
There was widespread recognition by those we surveyed and interviewed of a need for increased funding to provide for guardians in low fee/no fee cases where there is no one else to serve, and where no less restrictive option exists. Many, but not all, supported a statewide public guardianship system with flexibility to meet local needs. Two pilot programs are underway, and evaluation of their experiences will offer critical input toward addressing the unmet need in other areas of the state.
New York Court Processes -- Barriers to Effective Service.
Complicating attempts to address unmet needs are barriers in court guardianship processes that may needlessly hamper efforts to get people the help they need. In the development of New York’s primary guardianship system, Mental Hygiene Law Article 81, maximizing self-determination and expediting guardianship cases were both prominent features. The report noted that “while it is important to comply with time deadlines set out in the law, it is also important to focus on the individual and support his or her rights.” This balance is challenging. The Vera study examined issues of timing in court processes and in the monitoring to find solutions that streamline procedures yet preserve rights.
An earlier study in 14 counties by the Brookdale Center for Healthy Aging at Hunter College[vi] (as summarized in BIFOCAL in 2016) found that, on average, it takes 211 days -- significantly longer than the Article 81-mandated 50 days -- from the filing of a petition for guardianship to the commissioning of a guardian. The Brookdale study found additional delays and backlogs for other stages of the proceeding. Some delays are inherent in the very nature and complexity of the cases – time for needed accommodations, investigation, and evaluations. Other delays may be addressed through solutions such as uniform, plain-language forms, as well as additional court clerks to move the process ahead. Several of the study’s respondents cited “bottlenecks” at various stages and offered practical solutions.
New York’s Article 81 requires the guardian to file an initial report after 90 days and an annual report thereafter. The Brookdale study found the average time to the filing of a first report is 237 days. The Vera study confirmed that a substantial number of reports and accountings are not submitted on time. Often lay guardians don’t have the experience and training in filing reports and accountings, and the study’s survey respondents urged ways of making filing easier. They emphasized the need for a uniform statewide template for initial and annual reports. An additional issue pointed out by interviewees was the need for a guardianship complaint procedure or ombudsman function.
The TGP Model -- Assessment of Effectiveness and Replicability.
The TGP model in New York City was supported both internally by the staff members and externally by stakeholders in the study’s surveys and interviews. The study found that TGP’s team system is a holistic “one-stop shopping” approach to the provision of guardianship and related services, and the low ratio of staff to individual allows for high quality, person-centered services. TGP is especially outstanding in its efforts to either keep people living in community settings or to return people from institutions to community settings.
Although the TGP team model is a promising one, it is costly, and respondents in the study raised this important point. The program struggled for many years to find a sustainable funding model. Recently it obtained a sizable, multi-year contract from the Office of Court Administration. The study found that “TGP’s struggle to sustain itself is not due to its programmatic model, however, but rather, due to its mix of high-fee and low-fee, no-fee cases that the court orders TGP to take. Often, it is the most resource-intensive cases that are very low or no fee. Hence the need for programs (and alternative funding sources) specifically to serve indigent persons.”
While TGP is successful in a city with a high-density population such as New York City, the model may need to be modified in more rural areas. The study recommended that replication and adaptation should be piloted to determine feasibility, including requirements for technology, training, oversight, and partnerships to access services.
[i] Gonzalez-Rivera, C., Bowles, J. & Dvorkin, E., New York’s Older Adult Population is Booming Statewide, February 2019, https://nycfuture.org/research/new-yorks-older-adult-population-is-booming-statewide
[ii] Alzheimer’s Association, 2019 Alzheimer’s Disease Facts and Figures, https://www.alz.org/media/Documents/alzheimers-facts-and-figures-2019-r.pdf
[iii] Teaster, P., Wood, E., Schmidt, W., & Lawrence, S., Public Guardianship After 25 Years: In the Best Interest of Incapacitated People? National Study of Public Guardianship, University of Kentucky & American Bar Association Commission on Law and Aging (2008).
iv. The two states that recently enacted public guardianship laws are Oregon and Nebraska.
[v] Drawn from the Report’s Executive Summary.
[vi] Callahan, J., Romanick, R. & Ghesquiere, A., “Guardianship Proceedings in New York State: Findings and Recommendations,” Bifocal Journal, American Bar Association Commission on Law and Aging, Vol. 37, Issue 4 (April 2016).