Preventing abuse in guardianship focus of proposed bill, final rule

by Kimberly Bonvissuto

Proposed legislation aims to reduce the potential for abuse of older adults and people with disabilities by creating public awareness about alternatives to guardianship, whereas a new federal final rule establishes stronger protections for those subject to guardianships, according to the government.

US Sen. Bob Casey (D-PA), chairman of the Senate Special Committee on Aging, on Wednesday announced that he had introduced the Alternatives to Guardianship Education Act, which would invest in educating people who frequently interact with older adults and people with disabilities about guardianship alternatives, such as supported decision-making and advance directives.

The bill targets education for healthcare workers, educators, family members and court workers. 

Specifically, the bill would fund education programs that include discussions on the background of guardianship and the potential consequences of unnecessary guardianship, as well as information on various alternatives. The bill would fund competitive grants to create curriculum and materials for targeted populations, as well as strategies to reach underserved populations.  

In addition, the act would require states to collect guardianship data, and it would establish an advisory council to advise on grants and programs to accomplish the act’s goals.

Last year, an Aging Committee hearing highlighted issues involved in guardianships, which led to Casey introducing the Guardianship Bill of Rights Act to promote alternative arrangements to guardianships and create standards to protect the civil rights of people living under them. Prior to that, in 2021, Casey introduced the Guardianship Accountability Act with the goal of providing accountability and oversight into guardianships, promoting best practices and providing funding and training to spot abuse. Neither bill was adopted.

Final rule creates protections within guardianships

The introduction of Casey’s latest guardianship bill follows the announcement of a final rule on Tuesday from the US Department of Health and Human Services, through its Administration for Community Living, establishing the first federal regulations for adult protective services, or APS. Along with aiming to drive consistency in services across states, the rule also establishes stronger protections for those subject to guardianship. 

Specifically, according to an ACL fact sheet, the rule promotes person-directed practice and the least-restrictive alternatives to respect the fundamental right of adults to make their own life choices. The rule establishes stronger protections for APS clients subject to or at risk of guardianship by prohibiting APS from serving as a guardian or petitioning for guardianship unless doing so is “unavoidable.” The rule also requires additional documentation and mitigation measures in such cases. 

Last month, Justice in Aging released an issue brief providing examples of less restrictive guardianship alternatives, including trusts, powers of attorney, banking solutions and representative payees, and advance directives. The organization also has advocated for addressing bias in guardianship and data reform measures, and spotlighted state programs addressing issues in guardianship.

The Elder Justice Coalition released a statement supporting the rule, which it said promotes coordination and collaboration with state Medicaid agencies, long-term care ombudsmen, tribal APS, law enforcement and other partners. 

APS programs support older adults and adults with disabilities by investigating reports of maltreatment, conducting case planning and connecting people to a variety of medical, social service, economic, legal, housing, law enforcement and other support services. 

The new regulations go into effect June 7, although regulated entities have until May 8, 2028, to fully comply.

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Preventing abuse in guardianship focus of proposed bill, final rule