On April 18,
College of Law
Associate Dean for Research and Online Education and David M. Levy L’48
Professor of Law Nina A. Kohn testified in Washington, D.C., on
guardianship abuse and reform and financial decision-making for people
with disabilities.
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| Nina Kohn |
During the morning, Kohn testified to the
Senate Special Committee on Aging
hearing on guardianship abuse at the invitation of Committee Chairman
Sen. Susan Collins of Maine and Ranking Member Bob Casey of
Pennsylvania. At the hearing—titled “Abuse of Power: Exploitation of
Older Americans by Guardians and Others They Trust”—Kohn discussed the
need for guardianship reform and potential legislative responses. Kohn’s
testimony included a discussion of the
Uniform Guardianship, Conservatorship and Other Protective Arrangements Act (UGCOPAA), for which she served as Reporter.
In the
opening statement,
Sen. Collins framed the issue of guardianship abuse with heartrending
anecdotes from Nevada and Maine about the exploitation of elders at the
hands of unscrupulous, court-appointed guardians. “Individuals can lose
practically all of their civil rights when a guardian is ordered,” said
Collins. “It is a legal appointment made by a court, and in many cases
it is justified and protects the individual. But … in some cases the
guardian exploits the vulnerable person, and it is often very difficult
to reverse the guardianship.” Currently, an estimated 1.5 million adults
are under guardian care.
However, according to a
Forbes summary
of the proceedings, the panel of four experts told the committee
members that “the vast majority of elder financial abuse by guardians
can be prevented.”
In her
testimony, Kohn identified four fundamental problems with the current guardianship system in the United States:
- Some people who are subject to guardianship should not be.
- Many people subject to guardianship are subject to more restrictive arrangements than they need.
- A subset of guardians act in ways that violate the rights and insult the humanity of those they serve.
- Existing systems and rules unintentionally create incentives that exacerbate these problems.
Turning to reform of the system, Kohn noted that the
2017 Elder Abuse Prevention and Prosecution Act
requires the U.S. Attorney General to publish “model legislation
relating to guardianship proceedings for the purpose of preventing elder
abuse.” Kohn explained that such exemplary legislation now exists. The
UGCOPAA, explained Kohn, clearly addresses the four problems she
enumerated.
Specifically, the Act:
- provides clear decision-making standards for guardians;
- incentivizes limited guardianships over full ones by making it easier to petition for a limited guardianship;
- limits the ability of unscrupulous guardians to drain assets by charging unreasonable fees; and
- creates new mechanisms to monitor guardian behavior at minimal cost
to the public, by leveraging persons interested in the welfare of the
individual subject to guardianship.
“In short, the act provides a smart, fiscally responsible model for
states,” Kohn said. “Its widespread enactment will bring about the
reform necessary to curb guardianship abuse.”
Kohn also suggested to the committee that guardians be mandated to
inform the courts when people under their care are able to make their
own decisions again. As reported by Forbes, Kohn explained that many
stroke victims, for instance, can quickly recover their decision-making
ability. “A guardian should be appointed only when a person cannot make
their own decisions and is at risk of harm without the aid of someone to
oversee their affairs,” said Kohn.
Watch the hearing and Kohn’s testimony.
In the afternoon, Kohn testified to the Social Security Administration (SSA) at its
National Disability Forum
on “Financial Independence: Directing the Management of One’s Social
Security Benefits.” At the session, Kohn discussed reform of the
Representative Payee Program,
a Social Security Administration initiative that provides financial
management for beneficiaries who are unable to manage their Social
Security or Supplemental Security Income payments.
Kohn’s testimony focused on the steps that can be taken to increase
the likelihood that SSA appoints representative payees (individuals who
manage Social Security benefits for another) for beneficiaries who need
them, and not for those who do not. She discussed how parallel issues
are addressed in the context of guardianship, as well as lessons the
administration could learn from UGCOPAA.
For instance, Kohn urged the SSA to tie appointments of
representative payees to beneficiaries’ functional needs and suggested
how this might be facilitated. Moreover, Kohn recommended that better
processes for termination of appointments and restoration of
beneficiaries’ rights be created, and she discussed the relationship
between surrogate appointments and supported decision-making and the
role of person-centered decision-making standards.
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Full Article & Source:
Nina Kohn Testifies to Senate Special Committee on Aging and Social Security Administration
