The ABA House of Delegates approved a pair of resolutions Monday that focus on the needs of older Americans.
Resolution 602, sponsored by the Commission on Law and Aging, the
Section of Real Property, Trust and Estate Law and the Senior Lawyers
Division, adopts the recommendations of the Fourth National Guardianship
Summit and encourages all legislatures and policymakers to incorporate
them when improving guardianship laws, policies and practices.
David English, a Section of Real Property, Trust and Estate Law
representative to the House of Delegates, introduced the resolution. He
said while many people have become more aware of guardianship issues
because of Britney Spears’ recent case, it is not an isolated incident.
“We have been working or dealing with issues concerning guardianship
going back many decades,” said English, who is also a past chair of the
Section of Real Property, Trust and Estate Law and the Commission on Law
and Aging. “As part of this process, about every 10 years a national
conference will be held with numerous attendees from many ABA entities,
among other groups, to talk about guardianship and make recommendations
on how to improve the system.”
ABA members and staff were among the 125 advocates and experts who
gathered virtually at the Fourth National Guardianship Summit in May
2021. The association has also participated in and adopted
recommendations from three previous summits in 1988, 2001 and 2011.
The 22 recommendations from the latest summit fall into six areas:
rights-based guardianships; supported decision-making; limited
guardianship, protective arrangements and diverting pipelines;
guardianship monitoring and addressing abuse; fiduciary responsibilities
and tensions; and guardianship court improvement programs.
They include the following:
• States and courts must ensure all judicial proceedings that could impact an adult’s rights include meaningful due process.
• State statutes, rules, policies and processes should require courts
to consider supported decision-making as an alternative to guardianship
both before and after it is imposed.
• States should create guardianship diversion programs that
facilitate alternatives to guardianship, and as a result, reduce the
likelihood that unnecessary guardianships will be granted.
• States and courts should increase the safety and well-being of
adults subject to guardianship by establishing a post-appointment,
person-centered monitoring system.
• States should provide funding for an agency to implement and
oversee licensure or certification of court-appointed guardians as well
as to vet, train and discipline these guardians.
• Congress should establish a guardianship court improvement program,
modeled on the child welfare court improvement program created in 1993.
The House of Delegates adopted a separate resolution
in August 2020 that called on Congress to create and fund a
guardianship court improvement program to support states’ efforts to
strengthen their adult guardianship systems.
Jo Ann Engelhardt, who also serves as a Section of Real Property,
Trust and Estate Law representative to the House of Delegates, added
that the Racial & Ethnic Diversity Caucus supports the resolution.
“This is important because so often the burdens of an ineffective
guardianship system may fall more harshly on our diverse communities,”
said Engelhardt, who is a member of the caucus.
As of mid-September, a dozen states has enacted 24 amendments in
their laws that relate to these recommendations, according to the report that accompanies Resolution 602. Congress is also considering reforms, including through the Guardianship Accountability Act.
Information about nursing home owners and chains should be more accessible, House says
The House of Delegates approved another resolution Monday that aims
to improve transparency and accountability in the ownership and
management of nursing homes.
Resolution 601, sponsored by the Commission on Law and Aging, the
Health Law Section and the Senior Lawyers Division, urges Congress and
the Centers for Medicare and Medicaid Services to create a national
system that audits nursing home ownership reports to ensure the
disclosure of all owners, including parent, management and property
companies. It also asks them to increase their focus on nursing home
chains by enabling the CMS website that compares nursing homes to
include information on facilities owned by the same companies.
Louraine Arkfeld, a Senior Lawyers Division representative to the
House of Delegates, spoke in favor of the resolution. She contended that
“making the decision to place your loved one, a vulnerable loved one,
into a nursing home is a difficult decision in even the best of
circumstances.”
Arkfeld, who is also a past chair of the Commission on Law and Aging
and the Senior Lawyers Division, continued: “So wouldn’t you want to
know who owns the nursing home? Who really manages the nursing home? Who
really controls the decisions, the care decisions, that are going to be
made?”
According to a Kaiser Family Foundation study, which is cited in the report
that accompanies the resolution, 69% of nursing homes were owned by
for-profit companies in 2016. In the same year, 24% operated as
nonprofit facilities, while 7% were government-owned.
The study additionally shows that more than half of nursing homes
were owned or leased by corporate chains with two or more facilities.
“Unfortunately, the pandemic has demonstrated to us, often quite
painfully, how tenuous the care and safety of our loved ones can be in
nursing homes,” Arkfeld added. “These increasingly complex structures
with their disassembly of nursing home ownership and operations has been
shown to have a negative effect on a broad array of quality measures.”
In November 2019, Sen. Elizabeth Warren, a Democrat from
Massachusetts, and two other legislators sent letters to the Carlyle
Group, Formation Capital, Fillmore Capital Partners and Warburg Pincus,
which have holdings in the nursing home industry. They also told the
four private equity firms they had concerns about their interests in
large for-profit chains and requested more information about their
investments.
Resolution 601 additionally urges state and territorial legislatures
and regulatory agencies to make proposed changes in the ownership and
management of nursing homes more transparent by implementing public
comment periods or other processes prior to transactions.
