Guardianship Monitoring

Challenges

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.

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” (see sidebar).  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.

Promising Practices

In 2006, the AARP Public Policy Institute and the ABA Commission on Law and Aging published Guardianship Monitoring: A National Survey of State Court Practices.  The report demonstrated the wide variation in guardianship monitoring practices.   A year later, the organizations released Guarding the Guardians: Promising Practices for Court Monitoring.  In the 2007 Future Trends in State Courts, the former President of the National College of Probate Judges, Hon. Steve M. King, outlined “Best Practices” in Guardianship Monitoring.  Recommendations from these promising practices documents frame the following discussion.

Court Staffing and Training

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.  Mary Joy Quinn, the Director of the San Francisco Probate Court, outlined the roles and responsibilities of probate court staff (investigators, examiners, assistant director, director) in testimony to the California Supreme Court Probate Conservatorship Task Force.  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 conservatorship accountings.  However, insufficient staffing of probate courts remains problematic in many jurisdictions.

Training.  Currently, there are few national training opportunities for court staff who oversee guardianship cases.  Rather, much of the training appears to be on-the-job or participation in locally sponsored events.  Training for judges also varies considerably from state to state, with the only national training opportunities presented by the National College of Probate Judges.

               
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 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

Abuse Prevention and Response Strategies

The potential for guardianship abuse is high in courts that have weak monitoring processes and insufficient protections in place.  Several strategies can be taken to prevent abuses from occurring or can be used to quickly identify and respond to abuse when it does occur.  
Inventories.  An inventory of the incapacitated person’s assets is required in conservatorship cases.  The court should provide an inventory form that requires conservators to document information on items such as checking and savings accounts, certificates of deposit, stocks and bonds, personal accounts, land contracts and mortgage interests, promissory notes owed, real estate, funeral trusts, personal property, jewelry, automobiles, and life insurance policies.  To minimize the opportunity to “divert” assets, inventories should be done expeditiously.

Bonds.  A surety bond should be required in all cases in which a conservator is appointed to oversee the assets of an incapacitated person.  A bond is in effect an insurance policy in which an insurance company guarantees up to the limits of the policy that a Personal Representative will administer an estate according to law.  Some courts require bonding for every guardian, with the exception of banks.  Other courts may require bonding for assets over a certain amount, such as $10,000.  It is critical that judges follow up to ensure that the bond was actually secured.  The failure of courts to set bond or acquire “proof of bond” has been noted in a number of high-profile media cases involving theft of assets by guardians.

Standardized Reporting.  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.

  Automated Reporting Systems and E-filing.  A number of courts use “tickler” systems that automatically send out reminders to guardians of upcoming due dates (see Technology section).  The automation of systems, when combined with the requirement that particular accounting software be used, not only minimizes data entry errors, but improves the opportunity for courts to detect transactions, such as heavy use of ATM withdrawals, that suggest financial abuse.  Florida’s 17th Judicial Circuit features downloadable accounting software for guardianship cases.  Minnesota’s Second Judicial District has received accolades for its Conservator Account Monitoring, Preparation, and Electronic Reporting (CAMPER) system, a web-based system for submission of financial reports by court appointed conservators.  The program is expected to expand statewide.

Fees and Services.  An area that has the potential for abuse is overcharging the estate for services.  For this reason, it is important that courts offer guidance on the range of fees and services allowable in guardianship cases.  Florida’s 13th Judicial Circuit has a Guardian Fee Workgroup, which 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.  This type of approach provides adequate compensation for guardians and safeguards against excessive charges.

“Flagging” Cases.  The National Center for State Courts developed a benchcard for judges to help them identify and respond to cases of elder abuse, including neglect and exploitation.  In addition, a number of individuals and organizations have developed “red flags” specific to guardianship and conservatorship cases. Court investigators and guardianship monitors should be trained to identify indicators of abuse and neglect, and the court should develop a system that will ensure that these cases are brought to the attention of the judge for immediate response.

Enforcement of Orders and Graduated Sanctions.  Orders are effective only when enforced.  Courts should have procedures in place that guide them on how to respond when reports are overdue or missing.  For instance, the first step might be a notice of noncompliance, followed by an order to show cause, and finally, an arrest warrant.  Procedures should also take into account responses to possible criminal activities.  In addition, the court should have established procedures for removing and replacing guardians.

Re-evaluation of the Necessity for Guardianship.  Capacity (link to capacity section) fluctuates over time and from situation to situation.  Annual reviews should consider changes in the incapacitated person’s condition that require a change in the guardianship conditions.  Minnesota’s Fourth District, serving Hennepin County, notes in its “Bill of Rights for Wards and Protected Persons” the right to petition the court for termination or modification of the guardianship or conservatorship.  In addition, they require guardians to notify protected persons of their right to seek restoration of rights.

Community Coordination.  Guardianships impact individuals as well as a variety of government agencies.  Courts should work toward developing multidisciplinary committees to discuss alternatives to guardianship, community resources, the guardianship process and protections, and issues specific to local practices.  A resource coordinator could be designated to serve as court liaison with community groups working on guardianship and mental health issues.

Key and Additional Online Resources

Guarding the Guardians: Promising Practices for Court Monitoring
Guardianship Monitoring: A Demographic Imperative
Guardianship Monitoring in Florida: Fulfilling the Court’s Duty to Protect Wards
American Bar Association - State Statutes on Guardianship Monitoring