Monitoring

Practices

Monitoring practices in many state and local courts are problematic. The lack of court oversight has gained the attention of the media. For instance, in June 2003, the Washington Post published several articles detailing massive neglect and exploitation by court-appointed attorney guardians in the District of Columbia. In 2004 and 2005, a series of articles in the Dallas Morning News spotlighted problems with guardianships in Texas, also detailing neglect. In November 2005, the Los Angeles Times, in a report following the examination of more than 2,400 conservatorship cases, found that "judges frequently overlooked incompetence, neglect and outright theft." In 2010, high-profile media stories led to the creation of Supreme Court task forces in both Nebraska and Arizona.

In 2006, continuing problems with guardianships were 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." A recent report (Adult Guardianship Court Data and Issues) based on a survey of judges and court administrators, concluded that "guardianship monitoring efforts by the courts are generally inadequate." The most common reasons given for poor monitoring practices are insufficient staffing and resources.

The National Probate Court Standards (Standard 3.3.17) and Recommendations adopted at the Third National Summit on Guardianship (Recommendation #2.3) are consistent in what constitutes basic monitoring practices:

Probate court should monitor the well-being of the respondent and the status of the estate on an on-going basis, including, but not limited to:

  • Determining whether a less restrictive alternative may suffice;
  • Ensuring the plans, reports, inventories, and accountings are filed on time;
  • Reviewing promptly the contents of all plans, reports, inventories, and accountings;
  • Independently investigating the well-being of the respondent and the status of the estate, as needed; and
  • Assuring the well-being of the respondent and the proper management of the estate, improving the performance of the guardian/conservator, and enforcing the terms of the guardianship/conservatorship order.

There are a number of courts that have gone well beyond basic monitoring practices to ensure the best outcome for protected persons. Generally, improvements in monitoring are carried out through a combination of technology, court staffing, and volunteer programs.

Resources