The pdf for the issue in which this article appears is available for download: Bifocal, Vol. 42, Issue 2.
Introduction
Adult guardianship is a drastic state intervention that removes most of a person's fundamental rights; it is the legal process in which a court finds an individual lacks capacity to make his or her own decisions and appoints a guardian to make personal and/or property decisions on behalf of the individual. Approximately one to three million people in the United States have been appointed a guardian due to age related cognitive decline or dementia, disability, traumatic brain injury, and a myriad of other circumstances. These individuals may be among the least prepared litigants to navigate judicial systems. Yet state courts, which bear the sole fiscal and administrative burden for the guardianship process, are often overburdened and lack the necessary resources to ensure these individuals are guaranteed the right to due process during proceedings, and if a guardian is appointed on their behalf, the right to be served by a guardian free from abuse, neglect, and exploitation.
Working Interdisciplinary Networks of Guardianship Stakeholder (WINGS) is an innovative and collaborative approach to reforming state adult guardianship systems. Since 2011, the WINGS effort has grown across the nation, In 2016, the Administration for Community Living of HHS awarded a generous grant to the ABA Commission on Law and Aging to support the expansion of seven WINGS in Alabama, Alaska, Idaho, Indiana, Florida, Oregon, and Utah. This grant has allowed the Commission to provide funding, technical assistance, and programming to establish, enhance, and support state WINGS. Currently approximately 25 states have an active WINGS or similar collaborative effort.
The Commission provides technical assistance and a supportive infrastructure for WINGS across the country. For more information about starting a successful WINGS and the Commission's findings during the grant period, see the 2019 WINGS Replication Guide and the 2019 Final WINGS Assessment Report.
Guardianship Reform and the Road to WINGS
Public awareness about the systemic failures of the nation's guardianship system first came to light in 1987, with the release of a groundbreaking Associated Press (AP) series, "Guardians of the Elderly: An Ailing System," that described "a dangerously burdened and troubled system that regularly puts elderly lives in the hands of others with little or no evidence of necessity, then fails to guard against abuse, theft and neglect."
Following the AP report, significant changes were driven by three landmark multidisciplinary consensus conferences; model acts by the Uniform Law Commission; standards established by the National College of Probate Judges and by the National Guardianship Association; and as a result of rush state legislation, state guardianship laws have improved -- but implementation in practice has been uneven. The striking gap between law and practice is daunting for advocates seeking to strengthen individual rights and ensure accountability.
Generally, the need for reform of guardianship systems falls under three categories:
(1) Lack of data: there is no means for collecting national data nor standardizing states' methods for collecting on adult guardianships, nor collecting data on incidences of guardian malfeasance.
(2) Unnecessary and overly broad guardianships: While there is no available data, anecdotally it appears courts overwhelmingly prefer full or plenary guardianship to limited ones and are even less likely to decline to appoint a guardian in favor of less restrictive options. In a paradigm shift from more traditional delegations of authority to identifying and providing the support an individual needs to make his or her own decisions, advocates and interest groups, as well as the ABA, recognize the concept of supported decision-making as a key alternative to guardianship.
(3) Guardian abuse: While most guardians are trustworthy fiduciaries, some use their authority to take advantage via financial exploitation, physical, emotional, or psychological abuse, and neglect of the person they are appointed to serve. Again, without data there is no evidence of how often abuse occurs, but the U.S. Government Accountability Office has documented several incidences. Finally, the media has exposed egregious incidences of abuse.
Implementing reforms is a huge task - individual stakeholders make significant change alone. Nor is there federal infrastructure or funding for state guardianship systems. In 2011, guardianship stakeholders convened for the Third National Guardianship Summit, and concluded that real change in the guardianship system would require an ongoing collective effort by state courts and a range of community stakeholders. The Summit recommendations urged that states develop Working Interdisciplinary Networks of Guardianship Stakeholders (WINGS) to advance reform and promote less restrictive options.
WINGS: Collective Impact for Widespread Reform
Members of WINGS, in partnership with state courts, volunteer their time and expertise to identify systemic problems and solutions. These members come from a diverse array of backgrounds including public servants from aging and disability services, public health, mental health, protective services, members of the state bar, public and professional guardians, state legislators, family members and self-advocates. The stakeholder/court partnership is of paramount importance to WINGS' success. Many WINGS operate under the auspices of the state's highest court, with a court staff member serving as the group's coordinator.
WINGS is grounded in the social change theory of "collective impact" -- in which a wide spectrum of stakeholders pursue common objectives and engage in mutually reinforcing activities. Collective impact is defined as "the commitment of a group of important actors from different sectors to a common agenda for solving specific social problems." Under the WINGS model, stakeholder communication is of paramount importance, it breaks down silos between different interest groups and fosters creative problem solving and long term solutions. When stakeholders work together, their interactions can produce a greater effect than any one stakeholder. WINGS mean more referrals amongst stakeholders, more support for individual stakeholder actions to enhance the group's goals, more cross-training, and better coordination in advocacy.
WINGS have made significant improvements to state guardianship systems. Several WINGS have sought to improve court processes, seeking more uniformity in procedures throughout the state by training judges and court staff, conducting surveys on current practices, assessing the need for better data, and improving the usability of court forms. To support WINGS' efforts, the Commission on Law and Aging created tools for WINGS on court assessment of individual abilities & limitations, and the right to and role of counsel. State WINGS' efforts include:
- Alabama WINGS adapted a federal guide for court appointed conservators.
- Alaska WINGS' guardian accounting app helps lay guardians record income and expenses.
- Florida WINGS' on-line guardianship training curriculum for judges and attorneys.
- Idaho WINGS' discussions prompted the state court to issue a rule requiring the certification of professional guardians.
- Maryland's Guardianship Workgroup in the Administrative Office of the Courts developed, advocated for, and implemented new court rules for guardianship proceedings, including training for all guardians.
- Virginia WINGS, coordinated by the Supreme Court, created resources for family members on steps involved in becoming a guardian.
Most WINGS have undertaken projects to promote a range of less restrictive options for decision-making and avoid unnecessary or overbroad guardianships, either through stakeholder training or the production of resources. The Commission on Law and Aging developed an Action Tool for WINGS to implement such programming. For example:
- Minnesota WINGS is a partner with Volunteers of America Minnesota and Wisconsin's Center for Excellence in Supported Decision Making.
- Oregon WINGS partnered with the Department of Human Services to create "Options in Oregon to Help Another Person Make Decisions."
- Florida WINGS developed a plain language guide on "Exploring My Decision-Making Options."
As WINGS grow, they are increasingly taking on one of the most difficult challenges to guardian reform: oversight and monitoring of guardians. To assist WINGS in navigating this difficult topic, the Commission on Law and Aging created a background brief on reviewing guardianship abuse. WINGS initiatives include:
- Alaska WINGS piloted a local compliance manager position within the state's largest court to review annual guardian reports.
- Idaho WINGS secured legislative funding for a system of regional guardianship monitors.
- Utah secured funding for additional volunteer court visitors in its statewide visitor program.
With far reaching effects on many different populations, interdisciplinary efforts are key to achieving true and necessary reform for state guardianship systems. WINGS can make meaningful improvements in state adult guardianship systems, especially in education and training, public awareness, procedural advancements, and promotion of less restrictive options.
For more information about WINGS, please visit the ABA Commission on Law and Aging website here: https://www.americanbar.org/groups/law_aging/resources/wings-court-stakeholder-partnerships0/enior
This article was originally published in the ABA Senior Lawyers Division Voice of Experience newsletter.