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September 01, 2012

Guardian Summit Implementation: Taking WING

Erica Wood

The Third National Guardianship Summit, a landmark consensus conference sponsored by the ten National Guardianship Network (NGN) entities and key co-sponsors, concluded just over a year ago in October 2011 with much fanfare. The Summit, funded by the State Justice Institute, the Albert and Elaine Borchard Foundation, and the NGN organizations, focused on post-appointment guardian performance and decision-making across several key areas of practice. Its 93 participants crafted some 43 Standards for Guardians and 21 Recommendations for Action by courts, legislators, and others. It was hard work and its potential to influence guardianship is great.

Highlights of Summit Outcome

The Summit addressed several overarching issues of guardianship practice. For example, it set out core Standards by which the guardian is to develop and implement a “person-centered plan.” Also, the guardian must cooperate with other surrogates, and promptly report any abuse, neglect, or exploitation. The Summit Standards for financial, medical, and residential decision-making direct the guardian to: ascertain whether the person can direct a decision and needs support; make a substituted judgment decision based on the values, needs and preferences of the person if such direction is not possible even with support; and act in the person’s best interest only if a substituted judgment decision is not possible or clearly results in harm.

The Standards include multiple mandates on how the guardian relates to and reports to the court, and emphasize the need for ongoing, multi-faceted guardian education. The Standards describe a role for the conservator (guardian of property) that emphasizes fiduciary management as well as the need to value the well-being of the person. The conservator is to avoid conflicts of interest and appearances of such, apply prudent investment practices, weigh a decision’s costs and benefits to the estate and to the person, and prepare a plan for management of income and assets.

The Standards also give guidance on guardian/conservator fees, including the need to disclose the basis for a fee, to make a projection of annual fees, to anticipate how long a person’s funds will last, and to make plans accordingly so as not to abandon the person. The Recommendations outline elements courts should consider in approving “reasonable compensation.” The Recommendations emphasize that every guardian should be held to the same baseline standards, be they a professional or family/lay guardian, but a guardian with a higher level of relevant skills should be held to the use of those skills.

Finally, the recommendations urge states to establish Working Interdisciplinary Networks of Guardianship Stakeholders (WINGS). These are only the highlights, and you will find many other nuggets of interest in the Standards and Recommendations listed online.

Update on Implementation

The Summit’s outcome represents a real jump forward in guardian accountability; and could make a tangible difference in how guardians carry out their vital responsibilities. Yet the Standards and Recommendations are only an aspirational document with little effect unless there is a vigorous campaign for implementation.

Communication of Summit Outcomes. The first order of business following the Summit was to let involved communities and groups know about the Standards and Recommendations. They were posted on numerous lists in the legal, judicial, aging, disability, and guardianship fields. The National Guardianship Association dedicated its Spring Colloquium to the Summit outcome, and other entities held panels and discussion groups as well.  The “piece de resistance” will be the publication of the Standards, Recommendations, and all ten background articles by 19 co-authors in a special issue of the Utah Law Review, due out shortly. Summit planners also created a Summit web site, on which the Standards and Recommendations were posted and the National Guardianship Network will be transitioning to a new site to feature not only the Summit outcome but related guardianship reform updates as well. Stay tuned!

Adoption of Summit Outcomes. Aside from outreach, the immediate challenge was getting the Standards and Recommendations incorporated into the key policy and practice documents of relevant organizations, so as to best give them life. This effort took many forms. The National Academy of Elder Law Attorneys adopted the Standards and Recommendations at its July 2012 meeting, and incorporated them into the Academy’s public policy guidelines. The National Guardianship Association created a committee to initiate the revision of the NGA Standards of Practice to incorporate the Summit Standards, and this effort is currently under review.

That’s not all! The Conference of Chief Justices/Conference of State Court Administrators in July 2012 adopted a resolution urging state court systems to review and consider implementation of the Summit Standards and Recommendations. At the August American Bar Association Annual Meeting, the ABA House of Delegates passed a resolution adopting the Summit Standards and Recommendations as Association policy and urging implementation at all levels. AARP is in the process of including adoption of the Standards and support of WINGS in its public policy. Finally, a task force convened by the National College of Probate Judges has been at work revising and updating the National Probate Court Standards—including consideration of the Summit outcome.

However, the National Guardianship Network recognizes yet another path to move the Standards and Recommendations forward. NGN compared those Standards and Recommendations that could be statutory in nature to relevant sections of the Uniform Guardianship and Protective Proceedings Act. NGN identified Summit provisions that could be made part of the Act, and plans to approach the Uniform Law Commission about appointing a drafting committee to accomplish this. If identified Summit provisions are made a part of the Act, states can select discrete portions to enact.

Need to Target State Court/Community Action—WINGS Take Flight.

Equally important to these efforts at assimilation—and ultimately a much greater challenge—is the need for coordinated court-community partnerships to implement the Standards and Recommendations, driving changes that will affect the ways courts and guardian practice and improving the lives of incapacitated people. Indeed, a central thrust of the Summit Recommendations is that implementation and reform can best be accomplished by ongoing state multidisciplinary entities for problem-solving, trend identification, and action strategies.

States have lacked this kind of ongoing mechanism to continually evaluate “on the ground” guardian practice, to consistently target solutions for key problems, and to ensure a regular protocol of communication among stakeholders. All too often, state task forces gather, discuss needed legislative changes, advocate effectively for those changes, possibly help to create new forms to carry out the new provisions, and then congratulate themselves on a job well done and disappear. Moreover, such state task forces may not always include the essential gamut of stakeholders: aging and disability advocates, family members, the mental health community, and guardianship professionals. 

The Summit recommended that states create ongoing WINGS—Working Interdisciplinary Networks of Guardianship Stakeholders. Very few currently exist. In July, the National Guardianship Network received support from the Albert and Elaine Borchard Foundation to work with states to establish such active stakeholder networks, as well as to expand outreach and education about the Summit outcome. In September, the State Justice Institute awarded funding as well.

Under the project, NGN will ask the highest state courts in collaboration with other stakeholders to develop a proposal to establish a state WINGS. NGN will select four states to receive technical assistance and a small incentive grant of $7,000. The incentive funds could be used, for instance, for commissioning research, conducting an initial needs assessment, convening meetings, and conducting outreach. NGN will work intensively with each grant-funded state to create a WINGS group, help the group define priorities for reform, and develop a sustainability plan.

The experience of these initial WINGS groups can help NGN to develop a “replication template” for states interested in creating similar networks. The vision is that at the state level, key players will be involved on an ongoing basis to consider how adult guardianship is working in the state, where the pressure points are, and what solutions might be at hand. The group can cut across organizational silos, deliberate on tough cases and support improvements. In the end, this may be the real engine driving reform. Advocates like you can take a leading role!


Erica Wood

About the Author: Erica Wood is the Assistant Director of the ABA Commission on Law and Aging.