Basics

Guardianship Reform Efforts

 

The Wingspread Era

In 1987, the Associated Press published a series of articles (Guardians of the Elderly: An Ailing System) following its examination of 2,200 randomly selected guardianship court files. The AP report denounced the nation's guardianship system as "a dangerously burdened and troubled system that regularly puts elderly lives in the hands of others with little or no evidence of necessity, then fails to guard against abuse, theft and neglect" (Bayles and McCartney, 1987).

The 1987 AP series, as well as a 1988 National Guardianship Symposium (the "Wingspread Conference") sponsored by the American Bar Association (ABA) prompted a hearing by the U.S. House Committee on Aging. State legislatures throughout the country responded by passing a number of guardianship measures. State reforms featured five key trends: (1) stronger procedural protections for alleged incapacitated persons, (2) a more functional determination of incapacity, (3) use of limited guardianship and emphasis on the principle of the "least restrictive alternative", (4) stronger court monitoring, and (5) development of public guardianship programs (see Wards of the State).

In the late 1980s and 1990s, a host of national, state, and local efforts sought to strengthen guardianship practice (see Guardian Accountability: Then and Now). Major events include the following:

The Wingspan Conference

In 2001, seven national groups convened a second national guardianship conference ("Wingspan"), resulting in a set of recommendations for action. Additionally in 2001, the first National Summit on Elder Abuse called elder abuse "a crisis requiring full mobilization." Two years later the U.S. Senate Special Committee on Aging held hearings on guardianship, the first in a decade, entitled "Guardianships Over the Elderly: Security Provided or Freedoms Denied?" The hearing profiled cases of misuse of guardianship.

In 2004, the Government Accountability Office released a report on guardianships that noted the lack of cooperation between courts and federal agencies "…that may leave incapacitated people without the protection of responsible guardians and representative payees." In September 2006, the continuation of problems with guardianships was highlighted by the United States Senate Special Committee on Aging. Committee hearings "brought to light the continuing failure of guardianship to protect the elderly from physical neglect and abuse, financial exploitation, and indignity." In December 2007, the Special Committee on Aging released Guardianship for the Elderly, and called for "the development of promising new models for guardianship for the elderly."

Third National Guardianship Summit

The National Guardianship Network (NGN)* convened the Third National Guardianship Summit in October 2011, the tenth anniversary of the historic 2001 Wingspan conference. Held in Salt Lake City at the University of Utah's S.J. Quinney College of Law, the Summit was a multi-disciplinary consensus conference that focused on post-appointment guardian performs and decision-making. The Summit delegates passed a number of substantive and sweeping recommendations for standards for decision-making for all guardians. The final version of the Guardian Standards and Recommendations for Action were released in spring 2012. A series of commissioned papers was published in Summer 2012 issue of the Utah Law Review.  Among the Summit’s recommendations were the creation of WINGS—Working Interdisciplinary Networks of Guardianship Stakeholders.  Sponsored by the National Guardianship Network, four states (New York, Oregon, Texas and Utah) received small grants to create WINGS.  Their experiences can be found in the State Replication Guide for Working Interdisciplinary Networks of Guardianship Stakeholders.

Recent Court Efforts

State court leadership began a concerted effort in the latter part of the decade to address guardianship issues. In 2008, with funding from the Retirement Research Foundation of Chicago, the National Center for State Courts created the Center for Elders and the Courts (CEC). The CEC provides resources for courts on aging issues, elder abuse, and guardianship. In 2009, the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) created a Joint Task Force on Elders and the Courts. In 2010, the Joint Task Force issued a report on guardianship data and issues, which put forward a number of recommendations. Also, in 2010, COSCA selected the topic of guardianships as the focus of their White Paper. In 2011, the CCJ/COSCA Joint Task Force became a standing committee. In 2013, the National College of Probate Judges released new Probate Court Standards, which were recently endorsed by the Conference of Chief Justices .

Ongoing Challenges

Ongoing challenges associated with guardianships continue to be highlighted in local media stories and state and local inquiries. For example, in 2010, at the request of the U.S. Senate Special Committee on Aging, the GAO investigated the financial exploitation, neglect and abuse of seniors in the guardianship system. GAO investigators focused on 20 cases in which guardians stole or improperly obtained assets from incapacitated victims. In the majority of these cases, the GAO found that the potential guardians were inadequately screened and there was insufficient oversight of guardians after appointment. Furthermore, the GAO, using fictitious identities, obtained guardianship certifications or met certification requirements in four separate states. None of the courts or certification organizations used by those states checked the credit history or validated the Social Security numbers of the fictitious applicants. The investigation suggested that little had changed to protect incapacitated seniors since the GAO's 2004 report on guardianships.

In 2011, the National Center for State Courts provided testimony to the U.S. Senate on Protecting Seniors and Persons with Disabilities – An Examination of Court-Appointed Guardians. The testimony notes the need for reliable data and electronic filing systems, and supports proposed legislation that would create and fund a Guardianship Court Improvement Program (GCIP) that would improve court processes and outcomes for protected persons.

Resources


*The National Guardianship Network is comprised of the American Bar Association Commission on Law and Aging, American Bar Association Section of Real Property, Trust and Estate Law, the American College of Trust and Estate Counsel, the Center for Guardianship Certification, the National Academy of Elder Law Attorneys, the National Center for State Courts, the National College of Probate Judges, and the National Guardianship Association.