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Monitoring Conservatorships

Steps and considerations following the appointment of a conservator.

Monitoring Conservatorships

Courts have an ethical, moral and legal duty to monitor conservatorship cases given that establishing a conservatorship is a significant curtailment of civil rights. The National College of Probate Judges Court Standards on monitoring state, “The safety and well-being of the respondent and the respondent’s estate remain the responsibility of the court following appointment.”

Monitoring practices in many state and local courts are problematic.

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 Elderlyand 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."

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 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:

The 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;
  • 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

Potential judicial actions & strategies

Judicial officers and the court should consider the following strategies after appointing a new conservator. These actions take place initially after appointment or throughout the life of a conservatorship case. There may be overlap in the time period in which some of these responses are implemented and some may not be applicable at all.

Also read NCSC Background Brief No.3: Detecting Exploitation by Conservators - Court Monitoring

The monitoring process begins with the establishment of a conservatorship and the submission of initial reports. 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.

Conservatorship filings

Required at the hearing or within 60 dates:

  • Inventory of the respondent's assets
  • Plan on how resources will be allocated to meet respondent's needs

Notices required by the court:

  • Submit for court approval amended plans if there are any anticipated or real deviations from the approved plan.

Follow-up reports:

  • Annual accountings or updates

The conservator report should include:

  • Statement of all available assets
  • Anticipated financial needs and expenses of the respondent
  • Investment strategy and asset allocation to be pursued, if applicable, considering the purposes for which funds are to be managed
  • Services and care provided to the respondent and their costs
  • Significant actions taken
  • 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 New Mexico's form for the conservator's report, or those provided by the California Judicial Council (see probate forms). The Minnesota Judicial Branch has online portals for guardianship and conservatorship reporting. 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.

Resources

Review each Conservatorship based on circumstances.

DCM is 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.

Examples:

Arizona: Improving Protective Probate Processes for Probate Case in Maricopa County Superior Court in Arizona (Also see below)

Idaho: Idaho courts utilize a Differentiated Case Management tool that triages Guardianship cases into three monitoring tracks: low, medium, high. It is a questionnaire (download here) that is to be completed on each guardianship case to assist in assigning monitoring efforts to the highest risk cases. Instructions can be found here.

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.

The following table summarizes features of DCM noted in the article and Maricopa County assessment.

Phase DCM & actions

Pre-Appointment

Uncontested Petitions:

  • Appointment of Fiduciary

Contested Petitions:

  1. Hearing on a Contested Petition
  2. Alternative Dispute Resolution
  3. Settlement Conference
  4. Trial on Contested Petition
  5. Appointment on Fiduciary
Post-Appointment

Minimum Risk:

Biennial telephone interview with respondent

Moderate Risk:

  • Annual in-person visit with respondent

Maximum Risk:

  • 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 the 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. Unfortunately, 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.

Resources

  • 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.

Filing compliance

Ensure that plans, reports, inventories and accountings are filed on time by using checklists and tracking tools.

If reports are not filed on time, the court may take action through:
  • Court orders
  • Hearings
  • Sanctions

Auditing and reporting checklists

Review promptly the contents of all plans, reports, inventories and accountings.

Forms and checklist examples:

Well-being checks

Assure the well-being of the respondent and the proper management of the estate. Consider a court volunteer monitoring program.

Examples:

Needs assessment

Assess the functionality, trajectory and protection needs of the existing conservatorship. The conservatorship may no longer be needed or may benefit from a restoration of rights with supported decision-making.

Tool: Capacity assessment instruments

Court Visitor/Investigator

Court visitors independently investigate the well-being of the respondent and the status of the estate, as needed.

Examples:

  • Provide printed and/or online training materials on the duties of a conservator.
  • Provide in-person training by court staff or professional conservators.

Examples:

For more information, see our section "Guardianship/Conservatorship Qualifications & Training."

Require conservators to file a bank acknowledgment of any court-imposed restrictions.

Example: Utah Restricted Accounts

Provide conservators with a list of the court’s expectations written in plain English with translations as appropriate.

Examples:

Require conservators to file an inventory and appraisal of the respondent’s assets and an asset management plan to meet the respondent’s needs and allocate resources for those needs, with annual accountings and updates thereafter.

Read: National Probate Court Standards 3.3.16 Reports

Require conservators to provide copies of reports and accountings to family members and other interested parties. This keeps family members informed and allows family members to raise concerns with the court.

Be prepared to spot evidence of financial abuse in court records. In particular, be aware of missing accounts, as they tend to be an early signal. For more information, see Enforcement of Orders below and the section on Red Flags here.

When abuse, neglect or exploitation is suspected, please refer to the Judicial Complaint Response Protocol.

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 and conservatorships."

Recommendations from the Third National Guardianship Summit (Recommendation #2.5) encourage courts to use available technology to:

  • Assist in monitoring conservatorships
  • Develop a database of conservatorship 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.

The Fourth National Guardianship Summit (2021) reiterated the need (in Recommendation 4.1):

"Develop and implement technology that includes mechanisms to validate reports, flag potential problems, and track monitoring."

While many state courts are unable to properly monitor and document conservatorships, 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 conservatorship process and to identify conservator 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.

Online accounting software

The Minnesota Judicial Branch implemented a mandatory statewide web-based program for conservators to enter their account information online to the courts —— MyMnConservator (MMC). Conservators are required to submit an inventory to establish the assets and estate of the protected person, as well as annual accountings reporting each transaction, online. There are features in MMC that help balance accounts with bank statements and track categories of spending.

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.
  • MMC helps balance accounts with bank statements and track categories of spending.

A centralized, statewide Conservator Account Auditing Program (CAAP) is utilized in addition to auditing first annual accounts and then every four years. Automation in MMC places the accountings in the applicable queue for audit by CAAP or review by staff reviewers. See Appendix A and B, Modernizing Conservatorship Guide for more information on the establishing and implementing of the MMC and CAAP initiatives.

View technical requirements and a description of the system architecture here. The source code is freely available to interested states. A software usage agreement can be submitted to Minnesota Judicial Branch Audit Manager Jamie Majerus.

Pennsylvania's Guardianship Tracking System (GTS)

Pennsylvania uses a statewide tool for courts to manage guardianship cases and track compliance with annual reporting. It combines several critical functions:

  1. E-filing for guardians
  2. Statewide repository of guardians
  3. Compliance tracking and electronic notifications (reminder and overdue notices)
  4. Statewide alerts about guardians (in cases of abuse, neglect, or financial exploitation)
  5. Automated flag logic
  6. Statistical reporting (with data on caseloads,  petitioners, attorney representation, guardian compensation and asset protection)

Resources

Factors to consider when determining how often and in what manner to review a case:

  1. Complexity of issues involved
  2. Size of estate
  3. Degree of family conflict at the initial hearing
  4. Number of complaints received
  5. Number of red flags indicated in accountings
  6. Social isolation of ward

Courts alone cannot fully detect conservator exploitation. A broader set of “eyes and ears” and robust court community partnerships may raise detection to a higher level.

Consider an interdisciplinary team approach to addressing abuse, neglect and exploitation. There are two common types: case-based and systemic review.

Examples of collaboration models are described in this Court Guide to Effective Collaboration on Elder Abuse.

NCSC Background Brief No.4: Detecting Exploitation by Conservators - Systematic Approach

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 and for courts in a number of states that 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 according to standards.

Court staffing

Train specialized court staff to raise guardianship monitoring standards.

Establish "court examiner specialists" to "monitor court examiner performance, review work product, ensure that all required accountings are being filed timely and expeditiously examined, and target cases that are out of compliance." This was recommended by The New York State Supreme Court Report of the Commission of Fiduciary Appointments.

Ensure staff who review conservatorships have sufficient financial expertise.

Examples & Resources:

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

Volunteer Monitoring Programs

Compensate for inadequate levels of staffing and resources by developing 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:

Program Coordinator's Handbook Trainer's Handbook Volunteer's Handbook

Additionally, NCSC 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:

The Concept of Eldercaring Coordination

Utilize 'Eldercare Coordinators' in high conflict guardianship/conservatorship cases.

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.

In 2014, the ACR Task Force published its guidelines for eldercaring coordination, which includes qualifications and resources for individuals who serve in the capacity of Eldercare Coordinators.

Additional Resources

There may be situations in which a loved one or other interested person questions whether the finances/property for the person under conservatorship are being managed appropriately. The National Probate Court Standards (Standard 3.3.18) directs courts to establish a process for these individuals to notify the courts of their concerns and for courts to review these complaints and determine whether the conservatorship should be modified or terminated.

The Standards instruct courts to ensure that the process is developed with the user in mind - as litigants seeking this assistance are typically unrepresented - and allows for emergency/urgent situations.

The Standards offer the following considerations when developing a complain/grievance process:

Submission of the complaint/grievance:
  • A written submission may help reduce frivolous requests that can take up a great deal of time and resources.
  • Courts can simplify this process by assigning a specific staff member to receive and process the forms, establish a designated email address for submission, and a standardized form available online.
Reviewing the complaint/grievance:
  • Upon review of the complaint/grievance, courts can take a variety of actions including but not limited to:
    • Referrals to services
    • Investigation by a court visitor
    • Ordering the conservator to address the concerns raised in the complaint/grievance
    • Mediation
    • Setting a hearing
  • This Judicial Response Protocol can help courts identify strategies for addressing these concerns.
Resources:

Without enforcement, conservatorship orders hold little authority. Enforcement can take a number of forms, including suspension, contempt, removal and appointment of a successor 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 where the respondent's estate is endangered. The Standards urge courts to remove the conservator and appoint a successor when a 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'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:

Contempt citation

  • Issue: 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

  • Issue: Indications of theft or mismanagement of assets

Notice of a show cause hearing to probate court in new jurisdiction

  • Issue: Conservator has left the court's jurisdiction

Disciplinary action for attorneys

  • Issue: Attorney conservator may have violated their fiduciary duties to the respondent

Suspension and appointment of a temporary conservator

  • Issue: Failure to perform duties. Welfare, care or estate of the respondent require immediate attention

The due process rights of the 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 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.

Resources