December 01, 2014

2014 Review: Guardianship & Capacity

(Note: The pdf for the issue in which this article appears is available for download: Bifocal, Vol. 36, Issue 2.)

 

The 2014 year has seen a kaleidoscope of actions and ideas on the guardianship and capacity front. The Commission, as part of the 11-member National Guardianship Network (NGN)­—and in close collaboration with organizations such as AARP and the National College of Probate Judges—is at the cusp of important changes. The Commission, with its partners made great progress in protecting the rights of older persons.

Creating an infrastructure for real state level reform

During 2014, the Commission with its NGN partners has worked with four states that established Working Interdisciplinary Networks of Guardianship Stakeholders (WINGS) through a grant from the State Justice Institute and the Borchard foundation Center on Law and Aging. New York, Oregon, Texas and Utah each have used WINGS to begin driving changes in practice, such as increased use of decision-making options less restrictive than guardianship, exploration of supported decision-making approaches, better monitoring and enhanced data collection.

In addition, four other states—Indiana, Missouri, Ohio, and West Virginia—have created similar WINGS groups to work collaboratively for change. NGN produced a replication guide for other states to follow. The pdf publication can be downloaded from the Commission's Guardianship Resources page: http://ambar.org/guardianship. In October, NGN received additional funding from the State Justice Institute to boost two more state WINGS court-community partnerships. Lift-off is imminent!

Progress toward effective coordination between state courts with guardianship jurisdiction and the Social Security representative payee program

During the past decade, the U.S. Government Accountability Office has highlighted the need for greater coordination between the federal representative payment system and state courts with guardianship cases. Both systems involve appointment of fiduciaries to make financial decisions on behalf of the same or similar populations, but there has been little interaction. In 2013, the federal interagency Elder Justice Working Group called for coordination of guardianship and representative payee systems as a way to reduce financial exploitation by fiduciaries.

During 2014, the Commission has participated in a series of calls spearheaded by the Social Security Administration (SSA) as part of the WINGS initiative. The quarterly calls bring together state WINGS leaders and key SSA staff to explore problems and solutions concerning guardianship and representative payment. SSA has created a subgroup to draft cross-training modules so each system can better understand and work with the other.

Helping to make the emergent concept of “supported decision-making” a reality

Supported decision-making focuses on promoting ways that people with cognitive disabilities can make their own decisions about their own lives, rather than being placed under a guardianship in which a surrogate makes life decisions on their behalf.

The concept stems from the United Nations Convention on the Rights of People with Disabilities. Supported decision-making around the world was highlighted at the World Congress on Adult Guardianship; and in October the U.S. Administration on Community Living designated The Quality Trust as grantee to establish and operate a National Resource Center on Supported Decision-Making. The Commission is pleased to be a partner in the five-year National Resource Center project.

Developing more effective strategies in guardianship cases marked by a high level of family conflict

A substantial number of high conflict guardianship cases feature family/sibling feuds or extreme tension between or among family members or with guardianship professionals in care situations involving an older person. These egregious cases erode court time and resources, use up scarce estate funds, delay needed care, often fail to focus on the real desires and needs of the individual, and seem intractable.

“Eldercaring Coordination” is a concept modeled after the successful “parenting coordination” programs currently used by some courts in high conflict child custody cases. The Association of Conflict Resolution (ACR) created a broad-based working Task Force to consider and refine the idea, and Commission staff have participated over the past year. In October, ACR unanimously approved the eldercaring coordination guidelines created by the Task Force. The guidelines target adult guardianship and related cases in which high conflict family dynamics may interfere with the well being and safety of an older person and with adherence to court orders. The new ACR Guidelines are posted at http://acreldersection.weebly.com/resources.html.

Progress towards better resolution of jurisdictional conflicts in guardianship
between states

The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA) sets out ways to resolve multi-state adult guardianship jurisdictional issues. See http://uniformlaws.org. The Act addresses the transfer of a case to a different state, recognition and enforcement of a guardianship order in another state, and determination of which state will have initial jurisdiction to hear a case if more than one state is involved. The Act saves judicial and family time and expenses, and greatly simplifies multi-jurisdictional cases­—without changing substantive state guardianship law, and without cost to the state.     

Because it is jurisdictional in nature, the Act can’t work as intended unless it is adopted by all of the states. Currently, a total of 40 states plus the District of Columbia and Puerto Rico have adopted the Act, leaving 11 jurisdictions remaining. The ABA has policy supporting the Act, and the Commission has vigorously advocated for its adoption by states—working closely with AARP during the last two years.

Educating professionals and the public about termination of guardianship and restoration of rights

Guardianship is one of society’s most drastic interventions, resulting in the loss of basic human and civil rights. All individuals deserve an opportunity to have a guardianship terminated and have their rights and self-determination restored. Yet very little is known about the process of restoration in practice.

In 2013, Jenica Cassidy, then a Commission intern, produced a detailed paper about restoration statutory provisions. In 2014, Ms. Cassidy returned to the Commission as a law graduate fellow (the Commission’s first!) and has been collecting and analyzing restoration case law, as well as spearheading online inquiries to judges and attorneys. She is pulling all of this information together in a comprehensive article, helping to shed light on a key aspect of rights and supported decision-making for older individuals and adults with disabilities. Stay tuned!

Helping lawyers operationalize the “least restrictive alternative” principle and routinely build it into the practice of law

Because guardianship is so intrusive and results in extreme loss of rights, guardianship laws and standards generally require that less restrictive options be considered before petitioning for a court order. However, use of the least restrictive alternative principle in practice appears uneven at best. Not infrequently guardians are appointed when other approaches might have sufficed.

In 2014, the Commission, along with three other ABA entities, received an American Bar Association collaborative Enterprise grant that aims to raise the awareness of the legal profession about decision-making options that are less restrictive than guardianship. The project will develop a practical screening tool to identify options, with a guide for attorneys to explain the tool and its use. This challenging 18-month project offers great potential to avoid unnecessary and overly broad adult guardianship orders, thus preserving self-determination as much as possible.

Producing our annual review of guardianship state legislation

The Commission has tracked the passage of state adult guardianship legislation every year since 1988. As of October, we found 17 successful state enactments in 15 states for the 2014 year. Both Oregon and Nebraska passed landmark public guardianship bills. Massachusetts, Mississippi, and California enact the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act. Oregon authorized court appointment of volunteer visitors. Idaho revised procedures for guardian and conservator reports to court. Additional states tweaked various provisions in existing law. The Commission presented a summary of these enactments as part of the 2014 National Guardianship Association’s annual Legal and Legislative Review; and will be updating and finalizing the 2014 list in December.

Teaching physicians how to perform better capacity assessments

In 2012, the Commission and the Rush University Medical Center completed an online curriculum for physicians and other clinicians on capacity assessment of older adults. During the 2014 year, the Commission and Rush worked to disseminate information about the course, including a recent presentation to a range of clinicians at a palliative care conference in New York City. See www.rush.edu/decisionalcapacity.

Networking with guardianship stakeholders worldwide

As a member of the National Guardianship Network, the Commission in 2014 played a substantial role in planning the highly successful 3rd World Congress on Adult Guardianship, convened May 28-30. The event was funded through the Borchard Foundation Center on Law and Aging, the American College of Trust and Estate Counsel Foundation, and the National Guardianship Network organizations, as well as registration fees.

Final attendance at the World Congress totaled 373 participants, including 268 from the U.S. and 105 from 24 other countries. The program included 120 presenters representing 21 countries across six continents. World Congress participants came, speaking many languages, from Europe, Asia, North America, and Australia—as well as first-time representatives from Africa (Nigeria) and South America (Argentina). All were eager to learn from each other and compare practices. The lively three-day event offered those involved in guardianship and decision-making a rare opportunity to share problems and solutions with peers from other countries. An International Resource Library of materials from the Congress is now available at http://www.guardianship.org/IRL/.

Where is further information?

For the latest on all of the above guardianship fronts, see the Adult Guardianship Law and Practice page on the Commission’s website at: http://ambar.org/guardianship. ■