Guardianship: Report Of The Senate Special Committee On The Aging Reveals Need For Reform In Management Of Guardians

Every day, courts across our country appoint guardians to protect the personal and financial interests of those most vulnerable in our society. For individuals who are unable to manage their own affairs, whether it is due to illness, disability, or abuse, guardianship laws allow an organization or an individual to manage their affairs and protect them from harm.

Recently, various guardian abuses have been reported and investigated in several jurisdictions in addition to a probe by the Senate Special Committee on Aging. The allegations include mismanagement of funds, lack of proper notice in court proceedings, and even conversion of assets.  Guardians may be family members, independent attorneys, or non-profit organizations. Guardians are charged with marshalling a ward’s assets and income, and depending on the state, they have varying reporting obligations as to financial and personal transactions.

On Wednesday, the Senate Special Committee on Aging reported its findings after a one-year investigation that included testimony by experts and advocates across the nation. Senator Bob Casey and Senator Susan Collins reported that in several jurisdictions guardians have little oversight and financial abuse exists. According to the Special Committee’s Report, approximately 1.3 million individuals are under guardianship in the United States with $50 billion held in guardianship accounts.

The Senate Committee’s Report recommends mandatory background checks for guardians, increased supervision of guardians, and it also encouraged judges to consider less restrictive means instead of full guardianships. Tailored or limited guardianships, which are  options already available in several jurisdictions, encourage individuals  to retain some powers over their personal and financial affairs. Often this means that an individual will have a guardian for supported decision-making instead of full control being assigned to the guardian. Sometimes a person needs a guardian for financial management, but not for personal needs.

In 2015, news outlets revealed several Nevadan guardianship cases of theft and exploitation. In the Senate’s instant investigation, several Nevadan activists testified before the Senate Special Committee on Aging making reports of notice failures and mismanagement of estates. Nevada has taken some steps in the right direction and it has recently embraced three significant reforms in guardianships, first encouraging the less restrictive alternatives to guardianship which includes encouraging those subjects of the proceedings to voice their views in court. Additionally, Nevadan advocates have moved to create a a Bill of Rights for protected persons in addition to a Guardianship Compliance Office wherein guardians are supervised and surveyed.

As part of their Report, Senators Casey and Collins have introduced The Guardianship Accountability Act that would mandate states to report guardianships in addition to mandatory background check for guardians. The Senate also recommended enhanced monitoring, improved collaboration, and increased uniformity of guardianship laws across the United States.

A significant concern in the Senate Committee’s Report is data collection because many states do not have adequate systems to monitor its fiduciaries. The Report noted several jurisdictions that have developed programs to correct this issue. Of note is the State of Minnesota, which has created an online tracking program for guardians where financial transactions are recorded. Similarly, Pennsylvania is in the process of developing a centralized tracking program. Four Indiana counties have developed a similar program. The Report recommends the increase in data collection by federal agencies in addition to a national resource center for guardians.

For those of us who serve as guardian, it can be an arduous task. The court entrusts a guardian with decision making abilities not only for financial concerns but for personal needs, where the stakes can be life or death. It is not unusual for a guardian to beckon the court for advice as to how to proceed with a ward’s significant health issue or how to better manage a ward’s finances so that better care can be provided. A guardian receives phone calls regarding everything from outstanding bills to flu shot consents to emergency room visits to requests for new clothing.

As noted in the Report, we need to do better for our elderly and disabled population. As professionals, we need to make certain that guardianships are properly granted and that guardians and their wards are supervised. As humans, however, we need to make certain that those close to use have appropriate mechanisms in place to avoid a measure so drastic as the issuance of a guardianship. A power of attorney or health care proxy can potentially deny a guardianship. Often financial abuse is not so apparent and vulnerable adults may be prey to systemic pressures asserted onto them by financial predators who can be relatives, friends, and even professionals. From the Senate Committee Report, it is apparent that we need to improve our legal mechanisms and it appears that thus far certain steps have been taken in the right direction. On a personal level, for the people in our own lives who are at risk — perhaps because they live alone or do not have immediate family — let us check in with them this holiday season as our presence is needed to spot issues, resolve problems, and keep them safe.

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Guardianship: Report Of The Senate Special Committee On The Aging Reveals Need For Reform In Management Of Guardians