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Monitoring Guardianships

Steps and considerations following the appointment of a guardian.

Monitoring Guardianships

Courts have an ethical, moral and legal duty to monitor guardianship cases given that establishing a guardianship 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.

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 2010 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:

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:

Judicial actions & monitoring strategies

Judicial officers and the court should consider the following strategies after appointing a new guardian. These actions can take place initially after appointment or throughout the life of a guardianship 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.

The monitoring process begins with the establishment of a guardianship 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.

Guardianship filings

Required at the hearing or within 60 dates:

  • Guardianship plan
  • Report on the respondent's condition

Notices required by the court:

  • 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)

Follow-up reports:

  • Annual updates
The guardian report should include descriptive information on:
  • the respondent's condition;
  • the services and care being provided to the respondent;
  • significant actions taken by the guardian; and
  • expenses incurred by the guardian.

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). 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 guardianship 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.

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) 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 list 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 Resources
  • 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.

Well-being checks

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

Examples:

Florida Court Monitors

ABA Court Volunteer Guardianship Monitoring Handbooks

Needs assessment

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

Tool: Capacity assessment instruments

Electronic filing

Allow court-appointed guardians to submit personal well-being reports and the Affidavit of Service electronically.

Example: MyMNGuardian (MMG)

Court Visitor/Investigator

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

Examples:

Reporting compliance

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

If reports are not filed on time, take action

  • Court orders
  • Hearings
  • Sanctions

Auditing and compliance checklists

Review promptly the contents of all plans and reports.

Forms and checklist examples:

If an examination of the report shows discrepancies, lack of documentation, or suspicious activity, consider:

- Referral for audit

- Assignment of court visitor or guardian ad litem

- Hearings

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

Examples:

NCSC: Finding the Right Fit: Decision-Making Supports and Guardianship

Alaska: requires Education for Guardians and Conservators

Arizona:  Probate Training – Non-Licensed Fiduciaries

Maryland: Guardian Orientation Program

Nebraska: Over the Phone Guardian and Conservator Education

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

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

Examples:

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. Several examples showcase how technology can improve the guardianship process and court oversight.

Example: Florida's guardianship reporting software

Florida's 17th Judicial Circuit (Broward Country) uses guardianship reporting software that includes the following "smart forms", which can be e-filed:

  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
  9. Inventory
  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.

Example: Pennsylvania's Guardianship Tracking System (GTS)

Pennsylvania uses a statewide tool for courts to manage guardianship cases and track guardian 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)

Additional resource

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 Red Flags section here.

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

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

  1. Complexity of issues involved
  2. Large 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

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.

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.

Compensate for inadequate levels of staffing and resources by developing volunteer monitoring programs, overseen by a qualified coordinator, to supplement court staff.

Examples & resources:

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:

The Concept of Eldercaring Coordination

Utilize 'Eldercare Coordinators' in high conflict guardianship 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

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. Prompt hearings are called for when reports are not filed in a timely manner, are inadequate, or complaints suggest concerns related to the respondent's well-being.

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

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

  • Issue: Guardian or conservator has left the court's jurisdiction

Disciplinary action for attorneys

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

Suspension and appointment of a temporary guardian

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

The due process rights of the guardian 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. The court should then order an investigation to locate the guardian and examine the person's conduct, with appropriate sanctions ordered where appropriate.

Resources: