Safeguarding Guardianship: An Interbranch Approach

by Lisa McKinney

The Texas Legislature passed 10 bills in 2015 reforming the legal framework governing guardianship in the state, a feat that Texas state Sen. Judith Zaffirini, who sponsored or co-sponsored all of the bills, attributes to cooperation and communication between the Legislature, which creates guidelines that govern the process; the courts, which are primarily responsible for establishing and overseeing guardianships; and executive agencies that provide public guardianship services for those who do not have appropriate family members to serve as guardians.

“The guardian is a very powerful person, so the courts have tremendous power,” said Zaffirini. She said she understood this most vividly when while a visiting nursing home, a resident named James Ryan requested to see her. He was almost entirely paralyzed due to a stroke, but was able to communicate via a specially-equipped computer.

“He wrote me a letter using his computer, which then read it to me, thanking me for my work,” she said. “I was so moved. To this day my staff and I work with James Ryan.” At his request, Zaffirini and her staff had Ryan transferred out of the nursing home and arranged for a family member to be paid to care for him.

“His mind is clear as it can be, but he felt he had no power—he said he couldn’t even commit suicide if he wanted to,” she said. “You don’t know what is going on in a person’s mind.”

The process for placing an adult under guardianship varies by state, but each branch of government plays a role in ensuring guardianship is a safe and effective mechanism for protecting individuals who can no longer make or communicate sound decisions about themselves and their property, or have become vulnerable to abuse, fraud or undue influence.

“My staff has been instructed to reach out to everyone who is interested in the topic and invite everyone—no matter how deep their disagreement—or whether they support our priorities or oppose them, to come to the table and help us pass even better legislation than we passed last time,” said Zaffirini.

Texas’ Guardianship Compliance Project was born out of this cooperative approach. The pilot project, which is funded by the Legislature and implemented by the Office of Court Administration, was launched in November 2015 to provide additional resources to courts handling guardianship cases. The goal of the project is to help courts make sound decisions in guardianship cases by reviewing current guardianships to identify reporting deficiencies, auditing annual accountings and reporting findings back to the court, and working with courts to develop best practices in managing guardianship cases.

“They have been so successful in investigating the problem (in the pilot counties) that we are going to ask for $3 million to go statewide when the Legislature convenes in January,” said Zaffirini.

In Texas, all guardians are required to obtain bonds—a sort of insurance policy that protects the person in guardianship should the guardian mishandle assets. In one county, the Compliance Project found about 40 percent of cases had guardianship bonds waived, even though there is no statutory authority for waiving bonds. “We realize it is not just a matter of passing good laws, but also enforcing the laws we have,” said Zaffirini. “For example, what good does it do us to pass a law on bonds of a guardian if a judge is going to, without authority, waive that bond? So we have to be vigilant and ensure that the laws that we pass are good laws but that we also pass any additional laws that we need to prevent and identify any abuse in the system.”

They also found numerous cases of guardians mishandling or misusing assets.

“In many cases there is no annual report, there is no initial inventory, there are questionable expenditures and there are missing assets including—listen to this—an airplane,” said Zaffirini. “How do you lose an airplane?”

Zaffirini also engages with the judiciary and other stakeholders through her appointment to the Texas Judicial Council’s Elders and Mental Health committees. The council consists of judges from all levels of the judiciary, legislators and citizen representatives. The Elders Committee makes recommendations to the Texas Judicial Council, and the Working Interdisciplinary Networks of Guardianship Stakeholders, or WINGS, makes legislative recommendations, which Zaffirini and other engaged legislators can carry to the Legislature.

“It is direct engagement,” said Zaffirini.

WINGS, created by the National Guardianship Network, is a partnership between court and community guardianship stakeholders to help states improve judicial processes, protect individual rights and meet needs, address insufficient funding, and ensure guardian accountability and fiduciary standards. In 2013, the program was piloted in four states—New York, Oregon, Texas and Utah. In 2015, it was expanded to Indiana; Minnesota; Mississippi; Washington; Washington, D.C. and Wisconsin.

"WINGS-MN brings together many stakeholders in our state,” said Judge Jamie Anderson of Minnesota’s Hennepin County District Court. “There are approximately a dozen local WINGS groups across the country, so we can learn from each other and avoid recreating the wheel.”

“We work together to brainstorm ways to improve guardianship, work with the community and develop options for avoiding guardianship, when that's appropriate," Anderson said.

Participants in Minnesota include representatives from the Veterans Administration, the Social Security Administration, the state Department of Human Services’ Adult Protective Services, and the Minnesota Association for Guardianship & Conservatorship, as well as the state court administrator and attorneys. Anderson said the group acknowledges the need for guardianship, while also partnering with all the different players involved in the process to improve guardianship and create less restrictive alternatives to full legal guardianship.

Anderson is collaborating with WINGS in Minnesota’s 4th Judicial District to provide online and in-person training for guardians and conservators prior to appointment. Guardians may be required to retake the training if there are issues with timeliness and quality of annual reporting.

Although interbranch cooperation often leads to improved outcomes for those under guardianship, the three branches don’t always agree on the course of action.

“I am in Cook County and the Cook County public guardian had concerns that a number of the pieces of legislation were going too far in taking power away from (his office),” said Illinois state Rep. David Harris, who sponsored a bill clarifying that a temporary guardian’s powers and duties are limited to what is enumerated in a court order. “House Bill 2504 dealt with length of temporary guardianship. I was going to shorten from 120 to 90 days, but the public guardian felt that wasn’t enough time for courts to review.”

Harris said engaging with the public guardian helped him understand what they were willing to compromise on. “You need to get that interaction to make sure the legislation has support to pass,” he said.

Source:
Safeguarding Guardianships:  An Interbranch Approach

See Also:
NASGA:  WINGS