(The pdf for the issue in which this article appears is available for download: Vol. 37, Issue 4.)
- Mrs. S, an 84-year-old widow, lives alone in an apartment. Her neighbors know her as a friendly and cordial woman. Mrs. S met a young man named Bill in the neighborhood and soon afterward, decided to hire Bill to help her around the house. Within a few weeks Mrs. S. began complaining to friends that she was having trouble paying her bills. Bill refused to answer any questions and was aggressive toward neighbors who tried to visit Ms. S. Eventually, Adult Protective Services discovered that Bill was taking virtually all of her monthly income.
- A 9-year-old child is the beneficiary of a large trust due to a medical malpractice settlement, yet he is prevented from attending therapy sessions because he lives in a building where the elevators are frequently broken and his mother is not able to carry him and his wheelchair up and down the stairs. His guardian is unresponsive to the mother’s requests for funds to move to more appropriate housing and after several years as guardian has yet to disburse any funds.
- How many people in the United States are living under a guardianship order?
- How long does the process take?
- To what extent are local guardianship processes in compliance with state statutes?
- How well does the current guardianship process protect the people it was designed to serve?
- What are the barriers or roadblocks that court systems, families, and others involved in the system face?
The answers to all of these questions are unclear. States across the nation struggle with tracking guardianship caseloads; identifying the number of active cases, and the status of a case, is often beyond their reach. Record keeping is often inconsistent or antiquated, and most states lack centralized data tracking systems. Better understanding of how guardianship proceedings are carried out in practice is imperative in order to improve current practices and public policy.
To begin to fill this knowledge gap, in 2011, the Brookdale Center for Healthy Aging at Hunter College began an in-depth file review in 14 counties across New York State. A nationally recognized multidisciplinary geriatric research center with a longstanding interest in and expertise in guardianship, the Brookdale Center was well-positioned to explore this issue.
Key findings from the New York File Review:
- Almost 60% of persons under guardianship were older adults, the majority with low incomes and low assets.
- Counties are more likely to petition when there are not-for-profit guardianship agencies able to serve as guardian.
- The guardianship process is lengthy; on average it took 211 days from petition to the point where a guardian was commissioned.
- Monitoring of guardians is very limited, primarily due to poor compliance with reporting requirements and a lack of timely review of submitted reports.
The New York State Guardianship Statute
Most states have some system or statute in place designed to protect the personal and/or property management needs of “incapacitated persons.” In New York State, the Article 81 statute of the NYS Mental Hygiene Law1 addresses this issue. The stated purpose of Article 81 is to “satisfy either personal or property management needs of an incapacitated person in a manner tailored to the individual needs of that person, which takes in account the personal wishes, preferences and desires of the person, and which affords the person the greatest amount of independence and self-determination and participation in all the decisions affecting such person’s life.”2
To plan the guardianship file review, we assembled an advisory group of guardianship experts (lawyers, policy makers, academics, and researchers) from around the country. We held a series of key informant interviews and conversations with these experts to determine our data collection priorities.
We then obtained data through a manual review of guardianship case files commenced in state court between January 1, 2002, and December 31, 2012. We reviewed cases from 14 counties in New York, representing urban, suburban, and rural communities. In most counties, we reviewed a random selection of 20% of the guardianship case files for each year. In rural counties, where there were significantly fewer cases filed each year, we reviewed 100% of case files if there were 4 or fewer in that calendar year and 30% of cases if there were 5 or more per year. We reviewed a total of 2,414 cases.
Number of Cases Reviewed (Total: 2,414)
Kings County: 660
New York County: 688
Nassau County: 440
Suffolk County: 350
Sixth Judicial District (10 Counties): 276
The New York State Office of Court Administration (OCA) and court personnel in each county assisted us in accessing the files. Files were randomly selected from a complete list of index numbers. Reviewers included attorneys and law students that worked under the supervision of a Brookdale Center staff attorney. All findings are presented in the aggregate unless otherwise stated.
Persons Under Guardianship
Discerning basic demographic data was difficult in many cases as it was either not recorded in the file or too inconsistent to be reliable (i.e., reports where pronouns or birthdates varied considerably while describing the same case). For example, information regarding race/ethnicity of the person (also known as the Alleged Incapacitated Person (AIP)) could only be determined in 40% of cases. We were able to identify a few socio-demographic trends in the AIPs, however:
- Most (68%) were female.
- Over half (59%) were 65 years of age or older.
- 55% of AIPs had annual incomes of less than $20,000.
- While median property values varied across counties reviewed, other assets remained fairly consistent across all 14 counties regardless of whether the counties were urban, suburban or rural. For those with data available, median real property value was $350,000 and median asset value was $54,284.
- At the time of the petition 31% of AIPs were residing in skilled nursing homes, 22% were living alone in the community, 21% were living with others in the community, and 11% were in a hospital.
Petitioners and Guardians
Under Article 81, a wide range of individuals may have standing to petition the court for guardianship. The petitioner may be the AIP, anyone residing with the AIP, any individual concerned with the welfare of the AIP, or the facility where the AIP resides.3
We identified several categories of petitioners. Statewide, a family member or friend petitioned in 43% of cases and the county petitioned in 22% of cases (“county” generally refers to a petition by the local Department of Social Services or Adult Protective Services). Nursing homes and hospitals accounted for another 25% of petitions. With the exception of these institutions, the type of petitioner was consistent with the type of guardian ultimately appointed. For example, where a family or friend petitioned, a family member or friend was appointed as guardian in 86% of cases. In the figures included in this article, it should be noted that that because 21% of cases reviewed had co-guardians appointed, the percentages for guardian types add up to over 100%.
We also found great variation in petitioners across counties, particularly in the categories of family/friend and county. For example, in one suburban county, family/friends petitioned for guardianship in 61% of cases, while in one New York City (NYC) county, family/friend petitions accounted for only 24% of cases. Similarly, outside of NYC, the county petitioned in 9% of cases, while within the NYC counties we examined, the City was the petitioner in 31% of cases.
Of all 2,414 cases reviewed, a guardian was only appointed in 1,636 cases (68% of the time).
In the NYC counties we reviewed, non-profit guardianship providers were appointed guardian in a higher percentage of cases than in other counties examined. We believe that this variation is due to the availability of established guardianship programs. For example, in NYC, the City has contracts with non-profit providers that serve as guardian where Adult Protective Services (APS) petitions for guardianship. In these cases, APS can petition knowing that these agencies will serve as guardian. In counties where APS does not have agencies ready and available to serve, they appear much less likely to petition. In addition, New York City has an established network of other not-for-profit guardianship services that are available to serve where there are no other alternatives. In counties that do not have the same availability of non-profit and county-provided services, there are far fewer petitions brought by the county.
Reasons for Guardianship
We also attempted to categorize the reasons for the appointment of a guardian by reviewing the powers granted in the order and judgment. For each AIP, several reasons could be given for guardianship appointment. The most common reasons for appointing guardianship were property management (85% of cases) and health care decision-making (75%). Property management includes a range of activities, such as Medicaid planning, selling of real property, and paying bills. Dementia was the reason given for guardianship in 41% of cases, and mental illness the reason in 20% of cases.
Length of Process
The Article 81 statute was designed to be an expedited proceeding. According to the language of the statute, it should take about 50 days to complete a full guardianship proceeding.4 Statewide, we found that these proceedings take far longer to complete than intended by the statute. The average length of time from the commencement of the case till the appointment of a guardian was 211 days. The graphic below compares the length of time for each point in the process to the statutory framework.
There are a several potential reasons that the guardianship process takes longer than the statute:
- Many parties need to be identified and notified about the hearing, which can be time consuming.
- When the AIP can meaningfully participate in the proceeding but cannot come to the courthouse because of physical impairment or other reasons, the statute requires that the proceeding be brought to the AIP, but this also requires considerable planning and coordination by the court.
- When a court evaluator is appointed it may take longer than expected for the court evaluator to properly conduct his/her investigation especially if relevant parties refuse to participate in the evaluation or are not available.
- If the court evaluator determines that AIP wishes his/her own counsel, then counsel needs to be appointed prior to the hearing.
- Once counsel is appointed, multiple hearing dates may be required in order for both sides to adequately present their cases.
- In some counties, the practice is for one of the parties, usually the petitioner, to draft the proposed order, which may result in delays.
- A transcript may need to be obtained and the proposed order “conformed” to the transcript of the judge’s decision. All parties then have 14 days to review and challenge the order if it does not conform to the transcript or if they think something has not been properly identified in the order. These steps can lengthen the process considerably.
- In many cases the judge requires the party proposed as guardian to obtain a bond. A family member or friend who fails to meet the criteria for bonding must then return to court to seek alternatives.
- The judge may appoint a guardian who has not yet been made aware of the case. Once contacted, if they are not available or willing to serve as guardian the case goes back to the judge who must appoint a different guardian.
- Family or friend guardians may not realize that they need a commission, or know that the commission is an additional document which they have to go to the county clerk to obtain.
- While there are counties that have services available to assist family and friend guardians to navigate the process, these resources are limited.
Article 81 requires both an initial report (also known as the 90-day report), and annual reports. Both reports are intended to tell the court what steps the guardian or guardians have taken to fulfill their responsibilities. For purposes of our data collection we did not distinguish between annual reports or initial reports, but examined the date of the earliest report filed. On average, the time between the filing of the Guardianship Commission and the first report was 237 days, even though the statute requires that an initial report be filed 90 days after the Commission.
Under New York State law, all reports are first examined by a court-appointed examiner before being sent to the judge to be settled. We compared the date of the earliest report filed with the date of the earliest report reviewed. We found that it takes, on average, 210 days before a report is examined, even though § 81.32 of the statute require both initial and annual reports to be examined within 30 days. Some counties only require the review of reports every other year in low asset cases, although the statute does not permit anything less than annual reports.
Outcomes of Guardianship
We found that those under guardianship do receive many services. For those who had a guardian appointed, 43% had financial management put into place, 42% had other services (i.e., home care, meals on wheels) put into place, and 17% began obtaining public benefits (i.e., Medicaid, Supplemental Nutrition Assistance Program (SNAP), Home Energy Assistance Program (HEAP)).
Our file review suggests several policy implications for improving the guardianship system:
- Support the development of publicly funded guardianship programs that can provide comprehensive case management to eligible clients in need of services.
- Develop a standardized file tracking systems courts can use to keep track of cases and to support compliance measures.
- Explore new funding streams for and expand existing opportunities for payment of guardians in no or low income/asset cases.
- Support enhanced trainings, materials and support services for family/friend guardians.
- Engage judges, policy makers, guardians, and service providers in exploring best practices to minimize unnecessary delays throughout the process.
We plan to conduct further, more detailed analyses of the guardianship file review. Topics we are particularly interested in exploring include:
- The guardianship process for younger adults with mental illness, substance use, and developmental disabilities.
- Better understanding the reasons for cross-county variability in guardianship cases.
- Comparing professional and family/friend guardians on various factors (e.g., number of reports filed, age of the AIP, AIP assets, and number of times there is a turnover in guardianship and how many are kept as guardians when there is a suspicion of abuse).
- Comparing the guardianship process between limited and temporary guardians vs. full guardians on various factors (e.g., who the guardian was and the age of the AIP).
- Exploring associations/patterns between reasons for guardianship and guardianship outcomes.
- Exploring associations between income/assets and guardianship outcomes.
We have shared our findings with judges, attorneys, and court officials in each of the counties we studied. In each instance they have been eager to use the data to examine and understand their own practices and to look toward improving the practice. While the delays in cases can seem insurmountable, we believe further analysis is warranted to see where the system might improve. We also found universal agreement that there are too few options for quality guardianship services for lower income people. While we cannot show a causal relationship, we do know that counties and cities that have non-profit providers of guardianship services, who will serve regardless of the assets or income, are more likely to petition for a guardianship. We are not advocating for more guardianship petitions, as guardianship is an extreme measure that does not always meet the needs of the alleged incapacitated person. However, it seems clear that some type of service is needed to support vulnerable adults who can no longer make decisions in various aspects of life, and that their needs are not always fully met.
Acknowledgements: Brookdale would like to gratefully acknowledge the input and assistance of our Advisory Board Members.
Matthew Caron, MS, and Milagro Ruiz, MA, provided support on database creation and management. Debra Sacks, JD, provided consultation on the details of the New York guardianship statute and statutory history. A special thank you to our legal interns for their assistance with data collection: Lauren Breines, JD, Tzipora Zelmanowitz, JD, and Alexis Gruttadaria, JD, conducted the majority of the file reviews, with support from Kaitlin Nares, JD, Brittany Kalra, JD, and Michael Connors, JD. Finally, we wish to thank all of the court personnel (clerks, judges, OCA staff) who assisted us in accessing files.
1 Article 81 of the Mental Hygiene Law, Appointment of a Guardian for Personal Needs and/or Property Management, became law in New York State in 1992 and went into effect April 1, 1993. Article 81 authorizes a proceeding based on the concept of the least restrictive alternative—one that authorizes the appointment of a guardian whose authority is appropriate to satisfy the needs of an incapacitated person (IP), either personal or financial, while at the same time tailored and limited to only those activities for which a person needs assistance. The standard for appointment under this procedure focuses on the decisional capacity and functional limitations of the person for whom the appointment is sought rather than on some underlying mental or physical condition of the person. Article 81 requires the court to consider alternatives to the appointment of a guardian and advocates for the protection of the rights of the allegedly incapacitated person (AIP). The intent is to have the flexibility to create a personalized approach that can meet the personal and property needs of the individual while affording them the maximum amount of independence and self-determination. Guardians and the court are required to take into account the personal wishes, beliefs, and preferences of the individual and to protect the civil rights and autonomy of the incapacitated person to the greatest extent possible.
2 § 81.01 New York State Mental Hygiene Law.
3 § 81.06. Who may commence a proceeding.
4 § 81.07(b)(1) requires that the court shall “set the date on which the order to show cause is heard no more than twenty-eight days from the date of the signing of the order to show cause. The date of the hearing may be adjourned only for good cause shown;” § 81.13 requires a “decision to be rendered within seven days after the hearing, unless for good cause show…” That same provision requires the commission to be issued to the guardian “within fifteen days after the decision is rendered.” ■