Guardianship and Supported Decision-Making

Volume: 38 Issue: 2

(The pdf for the issue in which this article appears is available for download: Bifocal, Vol. 38, Issue 2.)

 

 

The ABA Commission on Law and Aging is committed to making change in adult guardianship. This means working to protect rights and support self-determination. It means pushing for high fiduciary standards. It means promoting strong court oversight. It means finding help for family guardians. In 2016, the Commission has driven important systemic changes that affect individual lives:

Bringing Stakeholders Together to Maximize Impact

“Large scale social change comes from better cross-sector coordination rather than from the isolated intervention of individual organizations.” That was the message of a landmark 2011 article on social change on entitled “Collective Impact” (Kania, J. & Kramer, M., Collective Impact, Stanford Social Innovation Review, Winter 2011.). To make change in the guardianship system requires exactly this kind of collective impact. It requires pulling together the key stakeholders in an ongoing court-community problem-solving forum, as recommended by the 2011 Third National Guardianship Summit. These multi-disciplinary guardianship consensus groups are called WINGS—Working Interdisciplinary Networks of Guardianship Stakeholders.

WINGS groups exist in 17 states. The ABA Commission has helped to support and promote WINGS since 2013. In October 2016 the Commission, in collaboration with the National Center for State Courts, received an Elder Justice Innovation Grant award from the Administration on Community Living to “establish, enhance and expand” state WINGS. See the announcement in this issue, “Commission Receives Federal Support to Expand and Enhance Court-Stakeholder WINGS Partnerships.” The grant will fund state WINGS, and will help to determine whether WINGS is a sustainable, workable, replicable model to address guardianship and decision-support needs on an ongoing basis.

This year, in March we had the opportunity to participate in the Ohio Supreme Court Guardianship Committee WINGS group, where judges from across the state brought local aging and disability partners to the table to discuss needed improvements. In November, we witnessed the launch of Virginia WINGS in Richmond, in a broad-based meeting opened by remarks of the state Chief Justice.

As part of its work with WINGS, the Commission is in continuing contact with the Social Security Administration, which has designated a regional representative for each of the state WINGS. These representatives are to further coordination between the SSA representative payee system and state courts with guardianship jurisdiction, fostering information exchange and understanding.

Giving Lawyers Tools to Support Self-Determination

The Commission completed its almost two-year collaboration with three other American Bar Association entities this year to develop a tool for lawyers on supported decision-making. The tool aims to spur lawyers to routinely build into their practice the concept of “less restrictive options.” We want lawyers involved in guardianship work to ask what else might be tried first, and how people can get the support they might need for increasing self-determination before going the guardianship route.

We created a tool called PRACTICAL (an acronym for a nine-step process)—including a checklist and an online resource guide with hyperlinks to resources. The tool can readily be used by lawyers either in the interview process or afterward in assessing the case and developing strategy. The PRACTICAL tool was launched in May, and highlighted in a June webinar with speakers from the ABA Section of Civil Rights and Social Justice, Real Property, Trust and Estate Law, and the National Resource Center on Supported Decision-Making, with an audience of over 300. Lawyers who tested the tool said it:

“served as a good reminder to slow down and consider alternatives;”
“resulted in completely avoiding one guardianship;”
“was an excellent way to guide staff in completing appropriate screenings;”
“helped us to come to the conclusion that no guardianship was needed;” and
“caused us to think of alternative ways of dealing with the current issues, and come up with solutions that would not entail guardianship.”

The PRACTICAL Tool and Resource Guide are at: http://www.ambar.org/practicaltool.

Restoring Rights for People Subject to Guardianship

In 2016, the Commission led a ground-breaking effort to look at a key guardianship question: once in a guardianship, how does an individual get out if it is not needed? That is, what is the process for restoration of rights and how is it implemented?

Restoration of rights might occur in three circumstances—a person may have regained the ability to make decisions; developed new decision-making supports; or identified new evidence concerning capacity. An example of the first circumstance was a reported case in which:

An 86-year-old woman had a stroke and her niece was appointed as conservator to manage her financial affairs. The aunt moved to assisted living where her condition improved significantly. She wanted to go home and manage her own finances. She petitioned for termination of the conservatorship. The nieces opposed the petition, but it was granted based on medical records and the woman’s in-court testimony, and the decision was affirmed on appeal.

How often does this occur and under what circumstances? With funding from the Greenwall Foundation, the Commission, in collaboration with the Virginia Tech Center for Gerontology, sought to find out. Using legal research conducted by law fellow Jenica Cassidy (now an elder law attorney) in 2013–2014 as a basis, we undertook the first multi-state collection of data on restoration of rights. We collected restoration data on 275 court cases in four states over a three-year period, and examined recent court files.

Most of our 275 cases involved younger individuals living at home, often with family members as guardian, and with very small or no estates. The petitioner for restoration was generally the individual or the guardian. For nearly half these cases, there was no counsel, but very few were contested. On average, a person was subject to guardianship for almost five years before restoration. This picture is quite different from that presented by the 57 reported cases we analyzed from 1984 to present—in which the restoration was contested and frequently opposed by the guardian.

Building on the empirical and legal research, we conducted a lively Roundtable on Restoration of Rights in September 2016 with additional support from the Borchard Foundation Center on Law and Aging. We heard by video and in person the voices of two individuals seeking or granted restoration. We asked provocative questions that fostered discussion and in some cases recommendations: to what extent are individuals and families aware that restoration of rights is an option? How does the issue come before the court? What about the right to counsel in restoration cases? What should be the role of the guardian when there is a restoration petition? What should be the evidentiary standards? Stay tuned for our Report in 2017.

Targeting Conservator Exploitation

We’ve all seen media stories about guardians taking advantage of those entrusted by court to their care—usually in the form of financial exploitation by conservators (sometimes called guardians of property or guardians of the estate). Recently the Government Accountability Office (GAO) highlighted this shocking problem in Report called “Elder Abuse: The Extent of Abuse by Guardians is Unknown, but Some Measures Exist to Help Protect Older Adults.” Yet we also know that many conservators perform their duties with integrity and dedication. As the GAO confirmed, there is very little data on the scope of the problem—and little is known about the effectiveness of remedies to address it.

This year the Commission worked under a subgrant from the National Center for State Courts (NCSC), and in collaboration with the Virginia Tech Center for Gerontology, with funding from the U.S. Department of Justice Office of Victims of Crime to examine conservator financial exploitation and its effect on victims.

The project is assessing the quality and extent of data on conservator exploitation, and studying efforts underway to prevent, detect, and remedy it. One key resource is the pioneering Minnesota Conservator Account Auditing Program, which analyzes data from the court’s unique online conservator accounting system. The project also has collected media stories on conservator exploitation and is conducting in-depth interviews to spot systemic gaps—what happened and what could have been done?
In March the project will conduct an interdisciplinary Forum to consider the project findings and make policy and practice recommendations. We have invited victim groups and representatives of courts, the legal community, guardianship practitioners, adult protective services staff, law enforcement, and key federal agencies to try to come up with workable solutions.

Collaborating on Uniform Laws

Model laws crafted by the Uniform Law Commission (ULC) (http://uniformlaws.org) offer valuable templates for states grappling with guardianship provisions. For the second year, our ABA Commission has participated in a ULC Drafting Committee to revise the 1997 Uniform Guardianship and Protective Proceedings Act. The Committee was charged with implementing recommendations of the 2011 Third National Guardianship Summit, for which the Commission played a key role in planning.

Today’s thinking about adult guardianship differs markedly from perceptions of 20 years ago, and the proposed Uniform Act will bring important changes in the now outmoded Act. For example, a number of provisions will spotlight less restrictive alternatives and incorporate the concept of supported decision-making. The Act aims to be “person-centered”—stressing individual rights and procedures to activate these rights, creating person-centered plans, and making changes in terminology. The Act will offer clearer guidance to guardians and conservators. It will address procedural rights after appointment; and will amend conservatorship provisions on managing finances, some of which have not changed since the 1982 version of the Act.

The final draft is anticipated in 2017, followed by approval by the ULC and by the ABA House of Delegates. Then the Act will be ready for adoption by states. The Commission will continue to be there at every step.

Tracking State Legislation

The Commission has been tracking and monitoring state adult guardianship legislation since 1982. Each year it compiles an annual update of laws passed, explaining their history and importance. The Commission works closely with the AARP State Advocacy and Strategy Integration Team in identifying and analyzing bills, and assisting AARP state offices.

This year as of September we found 38 state enactments on adult guardianship from 22 states. The right to visitation and communication was a hot topic, with nine bills passed. Florida enacted an important measure expanding the public guardianship office responsibility to include oversight of registered professional guardians. Delaware become the second state to enact recognition of supported decision-making agreements. Three additional states passed the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act.

We presented highlights from the 2016 update in October at the National Guardianship Association’s annual Legal and Legislative Review. We will check for additional bills passed through December, and will post the final update on the Commission’s website.

Where to Go for More Information

For the latest on the Commission’s guardianship work, see our Adult Guardianship web page at: http://ambar.org/guardianship. ■

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