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May 17, 2022

Elder Justice Innovations Profile: Maryland

Nisa C. Subasinghe, Esq.

The PDF in which this article appears can be found in Bifocal, Vol. 43, Issue 5.

In 2021, the Administration for Community Living of the U.S. Department of Health and Human Services awarded Elder Justice Innovations (EJI) grants to the highest courts of Alaska, Massachusetts, Maryland, Minnesota, Nevada, New York, and Oregon.  The grants allow these states to assess the fairness, effectiveness, timeliness, safety, integrity, and accessibility of adult guardianship and conservatorship proceedings, and develop innovations to improve the experiences of individuals at risk of guardianship or conservatorship.  

Maryland’s project focuses on the “healthcare-to-guardianship pipeline” (the pipeline).  The pipeline refers to the scenario in which a person enters the healthcare system while experiencing diminished capacity, and without a clear legal representative in control.  The medical facility treats the person and then, when they no longer need acute medical care, files for guardianship in order to discharge them.  Skilled nursing facilities also use guardianship to get patients qualified for medical assistance (Medicaid) so that bills are paid, and services can continue.  While this can be beneficial in the short term, it often becomes detrimental, as the guardianship is often plenary and remains in place even if the precipitating event is resolved.  Once the guardianship is in place, it becomes difficult to remove. 

While the person subject to the guardianship suffers the most direct harm, the pipeline is also problematic for courts, public guardianship agencies, and other stakeholders, as it increases the burden on all.  This problem is not unique to Maryland; the 4th National Guardianship Summit, held in May 2021, focused on this very topic.  The problem is also not without solutions.  Over the past decade, there has been a sea change in legal and cultural approaches to alternatives to guardianship.  There is a better appreciation of how less restrictive options such as supported decision-making, can enable older adults and people with disabilities to exercise their autonomy and can be used to avoid, limit, or terminate a guardianship.  

The EJI grant gives Maryland a unique opportunity to build upon these developments.  Our objectives are to study the pipeline and design and implement person-centered approaches to diverting people away from it and toward faster and less restrictive options. 

How will we do this? 

We are working with the experts.  Our project team includes Elizabeth Moran and Erica Costello from the ABA Commission on Law and Aging.  Elizabeth and Erica bring to the project a wealth of expertise in the areas of disability rights, supported decision-making, adult protective services, and guardianship.  The commission’s involvement enables Maryland to benefit from its decades’ worth of work to study and advance guardianship reforms and its network of national informants.  Megan Rusciano from Disability Rights Maryland, the state’s designated Protection & Advocacy organization, serves as the team’s subject matter expert on Maryland law, alternatives to guardianship, and supports and services available to people with disabilities.  Megan is involved in almost all aspects of this project and helps ensure our efforts prioritize the rights and autonomy of older adults and people with disabilities.  We also get to work with Dr. Diane Robison from the National Center for State Courts.  The center has actively worked in the guardianship arena and led efforts to improve guardianship and conservatorship data collection, court processes, monitoring, and more.  Dr. Robinson serves as the project’s lead researcher, has extensive experience in data governance and working with court systems, and her public health background makes her an invaluable asset.  

Our approach is to start with a comprehensive assessment of Maryland’s guardianship system.  This will involve an analysis of Maryland’s laws, a literature review, and reviews of guardianship case files.  We will conduct surveys, interviews, and focus groups with healthcare system and guardianship stakeholders from around the state.  We will also compare the data elements captured in the state’s electronic case management system with the National Open Court Data Standards and the Conservatorship Accountability Project data standards.  This will enable Maryland to develop a plan for improving data collection so courts can more effectively manage and monitor guardianships and protect the rights and interests of people at risk of or under guardianship.

Based on feedback from key informants and the assessment, we will design, implement, and evaluate interventions the project team believes will divert people at risk of guardianship to less restrictive options.  They include targeted outreach and educational programs around alternatives to guardianship for healthcare decision-makers and guardianship stakeholders along the pipeline.  The programs will be developed around the ABA’s PRACTICAL Tool for Supported Decision-Making, which will be adapted for decision-makers along Maryland’s pipeline.  

We will also see if mediation is an effective tool to resolve conflicts that arise along the pipeline or to explore alternatives to guardianship.  Conflicts may include disagreements with the patient or among family members regarding the patient’s care, discharge plans, or whether guardianship is needed.  To help facilitate the use of mediation in this context, we will develop screening tools for healthcare decision-makers and courts to identify conflicts or situations that may be appropriate for mediation and connect those cases with mediators who will have completed an advanced training.  The training will enhance mediators’ skills in handling issues that are unique to these cases, including the need to screen for supports and accommodations to ensure meaningful participation of all parties, and cover strategies to identify and manage power imbalances and situations of disability bias and ageism.  The mediation component of the project will be supplemented by videos the project team will develop that explain how mediation can be used to explore alternatives to guardianship and how to prepare for mediation.  

Our hypothesis is that incorporating less restrictive options into the discharge planning and healthcare decision-making process can help reduce facilities’ reliance on guardianship for discharge or benefit qualification purposes.  We also believe that mediation is a faster and less expensive way to address conflicts that arise along the pipeline and to explore less restrictive alternatives to guardianship.  Our goal is to minimize unnecessary or overly restrictive guardianships.  While our focus is on guardianships that originate in hospitals and other healthcare facilities, this project is an invaluable opportunity to better understand Maryland’s guardianship system as a whole and to identify ways to improve it.  

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    Nisa C. Subasinghe, Esq

    Domestic & Guardianship Program Manager

    Maryland Judiciary, Administrative Office of the Courts