This section outlines how guardianships are monitored.
Results of a survey of judges and administrators, published in Adult Guardianship Court Data and Issues, concluded that "guardianship monitoring efforts by the courts are generally inadequate." Some of the challenges noted in the report include the shortage of staff and resources, the inadequacy of case management systems to account for the guardianship process, and the inability of court staff to monitor the health and well-being of incapacitated persons. The monitoring process begins with the establishment of a guardianship/conservatorship and the submission of initial reports. Generally, reports include an inventory and annual updates, at minimum. Increasingly, there are greater demands that guardians and conservators submit prospective care plans and estate management plans as well.
The National Probate Court Standards identifies some basic timeframes and expectations for the submission of reports (Standard 3.3.16), which are summarized below.
Required at the hearing or within 60 dates
Filings to include:
· Guardianship plan
· Report on respondent's condition
Filings to include:
· Inventory of the respondent's assets
· Plan on how resources will be allocated to meet respondent's needs
Notices Required by the Court
Courts should require advance notice of:
· Respondent's intended absence from the court's jurisdiction in excess of 30 days
· Any major anticipated change in the respondent's physical presence (residence)
Courts should require conservators to submit for court approval amended plans if there are any anticipated or real deviations from the approved plan.
Annual accountings or updates
The Standards suggest the contents of guardians and conservatorship reports.
Guardian Report Descriptive information on the respondent's condition, the services and care being provided to the respondent, significant actions taken by the guardian, and the expenses incurred by the guardian.
Conservator Report Statement of all available assets, the anticipated financial needs and expenses of the respondent, and the investment strategy and asset allocation to be pursued. The conservator should consider the purposes for which funds are to be managed, specify the services and care provided to the respondent and their costs, describe significant actions taken, and the expenses to date.
While annual updates are required by statute in nearly all states, courts have flexibility in terms of requiring more frequent updates and additional information in cases that may benefit from an increase in oversight.
Courts should have standardized forms that are readily available online. Ideally, forms should be available at the state level and be easily downloadable and fillable, such as those provided by the California Judicial Council (see probate forms) and the Minnesota Judicial Branch. In addition to standard forms, courts should consider requiring emergency plans and prospective care plans. Sample forms also can be found in the appendix of Guarding the Guardians: Promising Practices for Court Monitoring.
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 November 2018, 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.
Fees for guardians/conservators and attorneys serving the respondent remain highly unregulated in most jurisdictions. Generally, the responsibility of setting and determining appropriate fees is at the discretion of each local jurisdiction and can even vary from judge to judge. In many courts, guardians/conservators receive little to no guidance on what level of fees and services are appropriate. Similarly, information on fees is seldom documented in a database that would allow courts to easily identifier fees that are higher than average.
Third National Guardianship Summit Recommendations
Recommendations from the Third National Guardianship Summit (2011) include an entire section on fees (Recommendations #3.1 - #3.8):
Recommendation #3.1: The court should promote sound administrative practices relating to guardianship fees by:
- Encouraging the continuity of judicial experience and expertise on the probate bench, and encouraging specialization of probate courts in accordance with the National Probate Court Standards
- Actively monitoring the reasonableness of fiduciary fees
- Creating and maintaining training programs for participants in the guardianship process
- Collecting data regarding fiduciary fees and costs
- Promoting timely review and approval of fees
- Promoting electronic filing.
Recommendation #3.2: Guardians should be entitled to reasonable compensation for their services. The court should consider these factors in determining the reasonableness of guardian fees:
- Powers and responsibilities under the court appointment
- Necessity of the services
- The request for compensation in comparison to a previously disclosed basis for fees, and the amount authorized in the approved budget, including any legal presumption of reasonableness or necessity
- The guardian's expertise, training, education, experience, professional standing, and skill, including whether an appointment in a particular matter precluded other employment
- The character of the work to be done, including difficulty, intricacy, importance, time, skill, or license required, or responsibility undertaken
- The conditions or circumstances of the work, including emergency matters requiring urgent attention, services provided outside of regular business hours, potential danger (e.g., hazardous materials, contaminated real property, or dangerous persons), or other extraordinary conditions
- The work actually performed, including the time actually expended, and the attention and skill-level required for each task, including whether a different person could have better, cheaper or faster rendered the service
- The result, specifically whether the guardian was successful, what benefits to the person were derived from the efforts, and whether probable benefits exceeded costs
- Whether the guardian timely disclosed that a projected cost was likely to exceed the probable benefit, affording the court an opportunity to modify its order in furtherance of the best interest of the estate
- The fees customarily paid, and time customarily expended, for performing like services in the community, including whether the court has previously approved similar fees in another comparable matter
- The degree of financial or professional risk and responsibility assumed
- The fidelity and loyalty displayed by the guardian, including whether the guardian put the best interests of the estate before the economic interest of the guardian to continue the engagement
- The need for and local availability of specialized knowledge and the need for retaining outside fiduciaries to avoid conflict of interest.
Recommendation #3.4: In the event estate funds are exhausted and the guardian has failed to address the anticipated exhaustion, the court is justified in requiring the guardian to remain serving at least until a succession plan is in place.
Recommendation #3.5: The court and court-appointed counsel should actively and timely monitor fiduciary fees.
Recommendation #3.6: The court should support any rejection or reduction of fees with a statement of explanation.
Recommendation #3.7: The court and all parties should respect the privacy and dignity of the person when disclosing information regarding fees.
Recommendation #3.8: The court should resolve fee disputes through a process that is fair, expeditious, and economical, for example, through:
- A court-ordered alternative dispute resolution or mediation process;
- A referral to a regulatory body responsible for reviewing fees; or
- A master or a special judicial resolution process.
Court Development of Fee Schedules
Courts that have established set fees and/or services have tended to use one of two formats: (1) fees are based on a percentage of estate, or (2) a range of acceptable fees are provided based on years of professional experience and services performed.
The Superior Court of California, County of San Francisco, Uniform Local Rules of Court (Rule 14) allows fees to be based on the percentage of assets or income. The Court offers the following compensation guideline for management of the estate:
All requests for fees based on an hourly rate must be accompanied by a declaration of the guardian, conservator or trustee with supporting time records. Alternatively, fees may be requested based upon a guideline of one percent (1%) of the fair market value of assets at the end of the accounting period or six percent (6%) of income, in the Court's discretion. (Rule 14.91)
While the use of a flat percentage of the estate or income provides a straightforward guide for fees, those respondents with large estates and/or incomes may end up incurring fees that are disproportionate to the services provided.
Another approach that tries to avert overcharging the estate for services is the establishment of pay scales, based on level of experience. Florida's 13th Judicial Circuit has a Guardian Fee Workgroup that used a statewide fee survey to establish pay scales, based on level of experience. The Workgroup also established a monthly cap for services such as paying bills, clerical work and shopping. Texas's Travis County Probate Court took a similar approach in its Standards for Court Approval of Attorney Fee Applications. The Standards outline court-approved fees for a fiduciary's attorney, attorney ad litems and guardian ad litems, fees when an attorney is also the fiduciary, and paralegal/legal assistant charges. The document also provides guidelines for specific types of charges, including travel, legal research, preparation of fee applications, conversations with court and clerk staff, copies and faxes, and deliveries. This approach generally requires local participation and surveys to determine the appropriate levels of fees, which will vary from one jurisdiction to another.
In 2011, the Arizona Supreme Court's Committee on Improving Judicial Oversight and Processing of Probate Court Matters issued its Final Report. The Report includes a number of recommendations for cost monitoring and control (see Judge Mroz's PowerPoint presentation), including statewide fee guidelines. In September 2012, Arizona is expected to adopt statewide fee guidelines that may incorporate a cap on fees based on the size of the estate and billing guidelines. New rules require conservators to file budgets, accountings, and sustainability calculations on standardized forms. (See State Task Forces.)
A report based on a survey of judges and court administrators (Adult Guardianship Court Data and Issues) found that, in many cases, guardianship monitoring is being neglected as a result of a shortage in staff and resources. Among the findings from the survey is that "specialized court staff are essential to raise guardianship monitoring standards." Yet, staffing has been especially challenging as courts in a number of states have lost resources in response to budget cuts. This has resulted in greater reliance on volunteer monitoring programs, or in the worst case scenario, the inability to actively monitor guardians and conservators according to standards.
Probate court staffing and general training remain topics of concern for many courts. This issue can be particularly challenging in courts that do not have a specialized probate division or seldom hear guardianship cases. In testimony to the California Supreme Court Probate Conservatorship Task Force, the Director of the San Francisco Probate Court outlined the roles and responsibilities of probate court staff (investigators, examiners, assistant director, and director). For example, a probate court examiner may perform the following tasks:
- Ensure original bank statements are included in all accountings
- Recommend full bonding to judicial officers
- Document that the date of the next accounting is contained in the court order
- Recommend appointment of attorneys based on faulty accountings
- Provide a detailed review of accountings, including all income and expenses
The New York State Supreme Court Report of the Commission of Fiduciary Appointments recommended the establishment of "court examiner specialists" to "monitor court examiner performance, review work product, ensure that all required accountings are being timely filed and expeditiously examined, and target cases that are out of compliance." Financial expertise is generally required of staff who review conservatorships.
Volunteer Monitoring Programs
To compensate for inadequate levels of staffing and resources, a number of courts have developed volunteer monitoring programs, overseen by a qualified coordinator, to supplement court staff. The American Bar Association Commission on Law and Aging describes volunteer monitoring programs, as a win-win solution for the courts and those placed under a guardianship. The Commission offers a three-part Handbook on Volunteer Guardianship Monitoring and Assistance to help courts establish volunteer monitoring programs:
Additionally, the National Center for State Courts created an implementation guide for Georgia that contains information that may be helpful to courts considering the development of such programs.
Examples of Volunteer Monitoring Programs
- Ada County, Idaho
- Snohomish County Superior Court, Washington
- Lake County Probate Court, Ohio
- Tarrant County, Texas
The Concept of Eldercaring Coordination
The Association for Conflict Resolution (ACR) created a task force on eldercaring coordination, which is described as a dispute resolution option specifically for those high conflict cases involving issues related to the care and needs of elders. This strategy is applied to high conflict guardianship/conservatorship cases. In 2014, the ACR Task Force published its guidelines for eldercaring coordination, which includes qualifications and resource for individuals who serve in the capacity of Eldercare Coordinators.
- American Bar Association Commission on Law and Aging
- State Statutes on Guardianship Monitoring (ABA, 2010)
Media stories and Congressional reports continue to demonstrate abuses of the guardianship and conservatorship processes. For example, the Government Accountability Office's report, Guardianships: Cases of Financial Exploitation, Neglect, and Abuse of Seniors, 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 there was insufficient oversight of guardians after appointment.
To date, there have been no scientific studies that document specific factors that can be used to detect abuses in guardianships and conservatorships. Rather, lists of "red flags" have been put forward by various experts based on their experiences in monitoring these types of cases. A compilation of factors and actions that may be indicative of problems with conservatorships/guardianships was prepared for the Third National Guardianship Summit and recently published in the Utah Law Review (Summer 2019 issue). When such "red flags" are present, the National Probate Court Standards suggest that these cases may benefit from additional services or training, an examination into the case through a visitor, guardian ad litem, adult protective services, or a hearing.
- Has no relatives or active friendships
- Is large and complicated with significant amounts of cash and securities
- Talks about being exhausted and overwhelmed
- Wants to resign
- Keeps changing attorneys or attorneys try to withdraw
- Has little knowledge about caring for dependent adults or has little experience with financial matters
- Excessively controls all access to the respondent and insists on being the sole provider of information to friends and family
- Does not permit the respondent to be interviewed alone
- Changes the respondent's providers to his/her own personal providers (e.g., physicians, dentist, accountants, bankers)
- Has financial problems (e.g., tax issues, bankruptcy) or personal problems (e.g., illness, divorce, a family member with a disabling accident or illness)
Possible "Red Flags"
- Requires a different living situation, either more protected or less protected
Financial /Accounting Irregularities
- Does not pay the bills or pays them late or irregularly
- Does not furnish/pay for clothing for the respondent residing in a nursing home or assisted living facility
- Does not arrange for application for Medicaid when needed for skilled nursing home payment
- Has a lifestyle that seems more affluent than before the guardianship/conservatorship
- Fails to renew a bond or has a bond revoked
- Has large expenditures in the accounting not appropriate to the respondent's lifestyle or setting
- Includes questionable entries in accountings:
- Utilities charges when the respondent is not living in the home or the home is empty
- Television sets or other items are in the accounting but are not present in the respondent's home
- Numerous checks are written for cash
- Guardian/conservator reimburses self repeatedly without explanations
- Automobile is purchased but the respondent cannot drive or use the vehicle
- Use of ATM without court authorization
- Gaps and missing entries for expected income (e.g., pensions, Social Security, rental income)
- No entries for expected expenses (e.g., health insurance, property insurance)
Compliance/Quality of Care Issues
- Does not cooperate with health or social service providers and is reluctant to spend money on the respondent
- Is not forthcoming about the services the respondent can afford or says the person cannot afford services when that is not the case
- Does not file court documents, including accountings, on time
- Is providing questionable quality of care
- Is the subject of repeated complaints from family members, neighbors, friends, or the respondent
- Is not visiting or actively overseeing the care of the respondent.
The "red flags" associated with financial and accounting matters can be more readily identified than those associated with quality of care issues. While accountings can be scrutinized by a cadre of volunteers or staff with some financial background, health care issues and the potential for abuse and neglect require home visits and more intensive monitoring efforts. Monitoring resources in most courts remain insufficient to identify and craft appropriate responses to "red flags."
Differentiated case management (DCM) in probate cases may be the wave of the future. Probate DCM to Protect Vulnerable Adults demonstrates how DCM can be used both before and after appointments of guardianships/conservatorships. The article is based on an assessment of the Probate and Mental Health Department of the Maricopa County Superior Court in Arizona. DCM is described as a technique that allows courts to tailor the case management process to the requirements of individual cases. Rather than using a first-in, first-out basis that treats all cases identically, DCM uses a triage approach to assign cases into different categories, and hence, case management tracks. The following table summarize features of DCM noted in the article and Maricopa County assessment.
Phase DCM Applied
Types of Cases
Action applied to Subset
Appointment of Fiduciary
1. Hearing on a Contested Petition
2. Alternative Dispute Resolution
3. Settlement Conference
4. Trial on Contested Petition
5. Appointment on Fiduciary
Biennial telephone interview with respondent
Annual in-person visit with respondent
Combination of actions, including case compliance audit or forensic investigation
DCM can be readily applied at the pre-appointment stage as contested petitions can be readily identified by the court. However, the practice of separating guardians and conservators into appropriate risk levels after appointment is challenging (see "Red Flags"). Included in the Arizona Supreme Court's Committee on Improving Judicial Oversight and Processing of Probate Court Matters Final Report is a risk assessment form (Appendix D) that provides a guide for placement of guardians/conservators into Triage Model "A" or Triage Model "B." Triage Model "A" calls for mandatory post-appointment monitoring and a visit from a volunteer guardian monitor within two years of the initial appointment. Triage Model "B" provides full judicial discretion in post-appointment monitoring activities.
The use of DCM in probate cases holds great promise. But at this time, a true risk assessment tool based on an empirical study identifying statistically validated factors does not exist. Rather, "red flags" that form the basis of assessment tools derive from anecdotal experiences. Thus, some caution must be used to determine the category of risk most appropriate to each case.
- NCSC's Caseflow Management Resource Guide
This report summarizes NCSC’s evaluation of the Maricopa County Superior Court’s Probate Department, including their use of differentiated case management (DCM) and a Probate Evaluation Tool (PET) that is used to assign guardianships into low, medium and high monitoring levels.
Without enforcement, guardianship and conservatorship orders hold little authority. Enforcement can take a number of forms, including suspension, contempt, removal, and appointment of a successor guardian or conservator. The National Probate Court Standards (Standard 3.3.19) directs courts to enforce its orders by taking appropriate actions and moreover, to take timely action to ensure the safety and welfare of a respondent upon learning of a missing, neglected or abused respondent, or where the respondent's estate is endangered. The Standards urge courts to remove the guardian or conservator and appoint a successor when a guardian/conservator is unable or fails to perform the duties set forth in the appointment.
According to the Standards, courts should not be passive, but rather, prioritize the safety and well-being of the respondent and the respondent's estate. Prompt hearings are called for when reports or accountings are not filed in a timely manner, are inadequate, or complaints suggest concerns related to the respondent's well-being or estate. The Standards offer the following examples of court sanctions in response to issues that arise:
In response to:
Failure to file required reports on time after receiving notice and appropriate training and assistance
Order freezing the assets and suspending the powers of the conservator
Indications of theft or mismanagement of assets
Notice of a show cause hearing to probate court in new jurisdiction
Guardian or conservator has left the court's jurisdiction
Disciplinary action for attorneys
Attorney guardians/conservators may have violated their fiduciary duties to the respondent
Suspension and appointment of a temporary guardian/conservator
Failure to perform duties: Welfare, care or estate of the respondent require immediate attention
The due process rights of the guardian/conservator should be protected when initiating sanctions. The removal of a guardian because of his or her inability or failure to fulfill the responsibilities should be followed by an emergency appointment of a temporary guardian or conservator. The court should then order an investigation to locate the guardian/conservator and examine the person's conduct, with appropriate sanctions ordered where appropriate.
Results from a survey of judges and court managers on guardianship issues (Adult Guardianship Court Data and Issues) demonstrated the inability of many courts to provide basic data on guardianships and conservatorships and was the basis for the following recommendation:
Courts should explore ways in which technology can assist them in documenting, tracking and monitoring guardianships.
Recommendations from the Third National Guardianship Summit (Recommendation #2.5) encourage courts to use available technology to:
- Assist in monitoring guardianships
- Develop a database of guardianship elements, including indicators of potential problems
- Schedule required reports
- Produce minutes from court hearings
- Generate statistical reports
- Develop online forms and/or e-filing
- Provide public access to identified non-confidential, filed documents.
While many state courts are unable to properly monitor and document guardianships, a number of courts are advancing the field by applying technology to these case types. Generally, software applications can be used to enhance the court's responsibilities in overseeing the guardianship process and to identify guardian activities that appear to be out of the norm. At its basic level, software can be used to create a "tickler" system that primarily reminds the court and notifies guardians of due dates of particular reports, such as annual accountings. At a higher level, financial-based software can be used to detect anomalies in conservatorships. Current software applications make court monitoring of conservatorships and the detection of financial abuse and exploitation more manageable, but are less applicable to guardianship cases that require an examination of the person's well-being. Several examples showcase how technology can improve the guardianship process and court oversight.
Guardianship Reporting Software
1. Annual guardianship plan
2. Simplified annual accounting
3. Application for appointment as guardian
4. Disclosure statement
5. Employee statement with a fiduciary obligation to a ward
6. Annual guardianship investigation checklist – non professional
7. Annual guardianship investigation checklist –professional
8. Professional guardianship checklist – additional appointments
10. Petition for order authorizing payment of attorney's fees and expenses
11. Petition for order authorizing payment of compensation and expenses of guardian
The goal of the software is to reduce paper logistics, offload costly data entry, and reduce errors and redundancy. The software offers judges and court staff flexibility in searching particular items and running reports. For example, reports could be run on cases where the visitation of the respondent was not completed once per quarter or on cases where income increased or decreased by a specific percentage when compared to the prior accounting.
Online Accounting Software
In 2011, the Minnesota Judicial Branch implemented a statewide web-based program for conservators to enter their account information online to the courts—the Conservator Account Monitoring Preparation and Electronic Reporting (CAMPER) Program. The system is used in all 87 counties in 10 judicial districts and is the first of its kind in the nation. The court sites the following benefits:
- The software is able to produce comparative reports on demand.
- Analysis across all or a selected group of conservators/conservatorships can be completed quickly.
- Additional supplemental information is handled electronically.
- Audit abilities are greatly enhanced.
- The increased capabilities, documentation, and accountability have a deterrent effect.
- Less staff time is required for reviewing and filing reports and associated activities.
- The system reduces paper and paperwork.
In Protecting the Assets of our Most Vulnerable in Minnesota, the advantages and disadvantages of the system are weighed. In particular, the ability to monitor and audit accounts through uniform reports was lacking in the early version of the software. Minnesota is currently addressing these limitations by developing a stronger reporting and auditing function. In fiscal year 2012/13, the program will evolve into CAAP (Conservator Account Auditing Program), which will feature a centralized unit to focus on auditing of accounts.