[Senate Hearing 108-728]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-728

                  FORUM ON PROTECTING OLDER AMERICANS
           UNDER GUARDIANSHIP: WHO IS WATCHING THE GUARDIAN?

=======================================================================

                                 FORUM

                               before the

                       SPECIAL COMMITTEE ON AGING
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                               __________

                             WASHINGTON, DC

                               __________

                             JULY 22, 2004

                               __________

                           Serial No. 108-41

         Printed for the use of the Special Committee on Aging


                    U.S. GOVERNMENT PRINTING OFFICE
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                       SPECIAL COMMITTEE ON AGING

                      LARRY CRAIG, Idaho, Chairman
RICHARD SHELBY, Alabama              JOHN B. BREAUX, Louisiana, Ranking 
SUSAN COLLINS, Maine                     Member
MIKE ENZI, Wyoming                   HARRY REID, Nevada
GORDON SMITH, Oregon                 HERB KOHL, Wisconsin
JAMES M. TALENT, Missouri            JAMES M. JEFFORDS, Vermont
PETER G. FITZGERALD, Illinois        RUSSELL D. FEINGOLD, Wisconsin
ORRIN G. HATCH, Utah                 RON WYDEN, Oregon
ELIZABETH DOLE, North Carolina       BLANCHE L. LINCOLN, Arkansas
TED STEVENS, Alaska                  EVAN BAYH, Indiana
RICK SANTORUM, Pennsylvania          THOMAS R. CARPER, Delaware
                                     DEBBIE STABENOW, Michigan
                      Lupe Wissel, Staff Director
             Michelle Easton, Ranking Member Staff Director

                                  (ii)

  
?

                            C O N T E N T S

                              ----------                              
                                                                   Page
Opening Statement of Senator Larry E. Craig......................     1

                                Panel I

Barbara Bovbjerg, director, Education, Workforce, and Income 
  Security Issues, U.S. Government Accountability Office.........     2
Frank Johns, attorney at law, Booth, Harrington and Johns, 
  National Academy of Elder Attorneys, Greensboro, NC............     8
Nancy Coleman, director, American Bar Association, Commission on 
  Law and Aging, Washington, DC..................................    21
Debbie Armstrong, deputy secretary, New Mexico Aging and Long 
  Term Services Department, Sante Fe, NM.........................    34
Robert L. Aldridge, elder law attorney, Boise, ID................    35

                                Appendix

Statement from Edwin L. Walker, deputy assistant secretary for 
  Policy and Programs, Administration on Aging...................    57
Information submitted on behalf of the Michigan Protection and 
  Advocacy Services, Inc.........................................    63

                                 (iii)

  

 
FORUM ON PROTECTING OLDER AMERICANS UNDER GUARDIANSHIP: WHO IS WATCHING 
                             THE GUARDIAN?

                              ----------                              --



                        THURSDAY, JULY 22, 2004

                                       U.S. Senate,
                                Special Committee on Aging,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 2:04 p.m., in 
room SD-628, Dirksen Senate Office Building, Hon. Larry E. 
Craig presiding.
    Present: Senator Craig.

     OPENING STATEMENT OF SENATOR LARRY E. CRAIG, CHAIRMAN

    The Chairman. Well, ladies and gentlemen, why do we not get 
started here? Good afternoon and welcome to the Senate Special 
Committee on Aging Forum on Guardianship Issues. The room will 
probably fill up with a few more folks. We are in the last day 
before the recess by all indications of our leadership at this 
moment, and that, in part, will impact attendance.
    But please view this as a full room, because the record we 
build here today and your participation in building that record 
is going to be extremely important, because what we have 
brought together are a group of expert panelists, and I must 
tell you that I am pleased that among our distinguished experts 
are some familiar faces to the Aging Committee: Barbara, 
Barbara Bovbjerg, from the Government Accounting Office, who 
has agreed to moderate the forum this afternoon is here along 
with others, and she will introduce our panelists, and Barbara, 
we thank you for doing so.
    Today's forum will focus on the monitoring and 
accountability of court-appointed guardians responsible for the 
care and financial management of this country's most vulnerable 
elderly. Hundreds of thousands of older Americans live under 
guardianship in the United States. Those numbers will 
dramatically increase as our aging population continues to grow 
at a prolific and unprecedented rate.
    In February 2003, the Aging Committee held a hearing 
exploring the misuse of guardianships imposed over the elderly. 
Over the course of the hearing, I heard several horror stories 
of elderly Americans put into abusive guardianship situations. 
At that time, I called the Government Accounting Office to 
conduct a study on how Federal funds are managed by court-
appointed guardians.
    The GAO has since compiled significant information on 
guardianship programs nationwide with special focus on three 
key States. They found that while all States have laws 
requiring courts to oversee guardianships, the implementation 
of those laws are varied and sporadic. In fact, most courts 
surveyed by the GAO did not even track the number of active 
guardianships or the number of elderly under guardianships.
    Another finding is the lack of collaboration between State 
courts and Federal agencies. While both are responsible for 
assisting some of the same older adults, they communicate 
little. There is no system in place for Federal agencies and 
courts to notify each other in situations where financial 
exploitation is detected. The failure to coordinate between 
agencies can leave this Nation's most vulnerable senior 
citizens without any protection at a time when they need it 
most.
    In light of these concerns, it is my desire that the panel 
today examine three key issues: first, a review of State laws 
that provide for oversight in guardianship; second, 
identification of State courts that have exemplary training and 
monitoring practices, and third, how State courts and Federal 
representative payee programs serving the same individuals can 
better coordinate their oversight efforts.
    I will now turn the proceedings over to Barbara. Barbara is 
the acting director of education, workforce and income security 
issues at the U.S. Government Accounting Office and is the 
author of a recent reporting examining the collaboration needed 
to protect incapacitated elderly people. Her background and 
expertise are impressive, as is that of each of our panelists.
    Once again, I want to thank all of you for being with us 
this afternoon as we face the important issue of the most 
vulnerable amongst us, and I look forward to today's discussion 
and the record that you are about to build.
    So, Barbara, I will turn this forum over to you and to the 
panelists who have gathered with you. Thank you very much.

         STATEMENT OF BARBARA BOVBJERG, DIRECTOR, EDUCA
 TION, WORKFORCE, AND INCOME SECURITY ISSUES, U.S. GOVERNMENT 
                     ACCOUNTABILITY OFFICE

    Ms. Bovbjerg. Thank you very much, Mr. Chairman.
    I did have remarks that I wanted to make at the beginning, 
and then I thought I would introduce each of our panelists; I 
thought what I would do today as facilitator I know that they 
too have remarks that they would like to make. I will have a 
few general questions for them, and, because this is a forum 
and a little different from a hearing; we will invite the 
audience. I will invite the audience to ask questions after we 
have been through a couple of general ones.
    I am really pleased to be here to discuss guardianships for 
the elderly, and I really appreciate the Senate Committee on 
Aging's request for this kind of work and support of our report 
by holding this forum. As people age, they become incapable of 
caring for themselves in some cases, and although family 
members can often provide assistance, sometimes, a State court 
will need to appoint a guardian to act on the incapacitated 
person's behalf.
    There have been instances, however, in which guardians have 
taken advantage of the elderly people they were supposed to 
protect. Such cases of abuse and neglect are the very things 
that prompted questions about the oversight of these programs. 
Indeed, that is why GAO did this work. Chairman Craig and the 
Senate Special Committee on Aging asked us to study 
guardianships for the elderly, and the results of our work are 
being released in a report today.
    It covers the three areas that Senator Craig mentioned as 
our focus today: what State courts do to ensure that guardians 
fulfill their responsibilities; what exemplary guardianship 
programs look like; and how State courts and Federal agencies 
work together to protect incapacitated elderly people.
    To do this work, we reviewed guardianship statutes 
nationwide and conducted surveys of courts in the three States 
with the largest populations of elderly: California, New York 
and Florida. We also visited courts in eight States, and we 
interviewed Federal officials responsible for representative 
payee programs.
    First, let me talk about State courts and guardians. All 50 
States and the District of Columbia have laws requiring courts 
to oversee guardianships, and at a minimum, most State laws 
require guardians to submit a periodic report to the court, 
usually at least once annually, although not always, regarding 
the well being of the incapacitated person. Many State statutes 
also authorize measures that courts can use to enforce 
guardianship responsibilities. However, court procedures for 
implementing guardianship laws appear to vary considerably. For 
example, most California and Florida courts responding to our 
survey require guardians to submit time and expense records to 
support petitions for compensation, but both States also have 
courts that do not require these reports.
    We also found that States are generally reluctant to 
recognize guardianships originating in other States. Few have 
adopted procedures for accepting transfer of guardianship from 
another State or recognizing some or all of the powers of a 
guardian appointed in another State. This complicates life for 
an elderly person needing to move from one State to another or 
when their guardian needs to transact business on their behalf 
in another State, for example, a property transfer.
    In addition, data on guardianships are scarce. Most courts 
we surveyed did not even track the number of active 
guardianships, let alone maintain data on abuse by guardians. 
Although this basic information is needed for effective 
oversight, no more than a third of the responding courts did 
this sort of tracking, and only a few could provide the number 
of guardianships for elderly people, the subpopulation of the 
larger group of guardianships.
    Let me now turn briefly to what we call the exemplary 
programs. We sought particular courts that people in the 
guardianship community considered especially effective. Each of 
the four courts so identified distinguished themselves by going 
well beyond minimum State requirements for guardianship 
training and oversight. For example, the court we visited in 
Florida provides comprehensive reference materials for 
guardians to supplement their training.
    On the oversight side, the court in New Hampshire recruits 
volunteers, primarily retired senior citizens, to visit 
incapacitated people, their guardians and care providers at 
least annually and to submit a report of their findings to 
court officials. Exemplary courts in Florida and California 
also have permanent staff that investigate allegations of 
fraud, abuse and exploitation. The policies and practices 
associated with these courts may serve as models for those 
seeking to assure that guardianship programs serve the elderly 
well.
    Finally, I would like to turn to the role of the Federal 
Government in guardianship. Federal agencies administering 
benefit programs appoint representative payees to manage the 
benefits of incapacitated individuals. The Federal Government 
does not regulate or provide any direct support for 
guardianships, but State courts may decide that the appointment 
of a guardian is not necessary if they know that a 
representative payee has already been assigned.
    In our interviews of Federal and court officials, we found 
that although courts and Federal agencies are responsible for 
protecting many of the same incapacitated elderly people, they 
generally work together only sporadically, on a case-by-case 
basis. Courts and Federal agencies do not notify other courts 
or agencies when they identify someone who is incapacitated, 
nor do they notify them if they discover that a guardian or a 
representative payee is abusing a person. This lack of 
coordination may leave incapacitated people without the 
protection of responsible guardians and representative payees 
or, worse, with an identified abuser, in fact, in charge of 
their benefit payments.
    To conclude, the number of elderly Americans is expected to 
grow dramatically in the future. The need for guardianship 
arrangements seems surely to rise in response, and ensuring 
that such arrangements are safe and effective will become 
increasingly important. Emulating exemplary programs such as 
the four we examined would surely help, but we believe more can 
also be done to better coordinate across States, Federal 
agencies and courts. That is why we recommend establishing an 
interagency study group, including representatives from State 
courts and all the Federal programs with representative payees 
to consider how better to share information among these 
entities.
    We also concluded that guardianship arrangements would 
benefit from the collection and analysis of consistent national 
data on numbers and types of arrangements and the incidence of 
problems. Thus, we have recommended that the Department of 
Health and Human Services work with national guardianship 
organizations and States to develop cost-effective approaches 
to compiling such information. With these measures, 
guardianship programs could better serve incapacitated 
individuals and would be better prepared for the growth in 
demand that we anticipate in the future.
    This concludes my remarks. I am really looking forward to 
hearing what our other panelists have to say. They are people 
whom I know have contributed in various ways to the debate in 
guardianship, and I would like to take the opportunity to 
introduce them now. I want to say that the panelists sitting 
around me all have considerable expertise in a number of 
fields. Their expertise is not limited to guardianship, but 
when I talk about their qualifications, I am going to limit 
myself to that piece, so I want you to know that they are even 
more accomplished than what you will hear about today.
    We will start with Frank Johns, sitting to my left. Frank 
Johns is an attorney. He is a partner in the firm of Booth, 
Harrington and Johns in North Carolina, and he concentrates on 
elder law. He is a fellow and past president of the National 
Academy of Elder Law Attorneys and a charter board member and 
president-elect of the National Guardianship Association, an 
association that we consulted in the course of our work.
    Nancy Coleman is here as the director of the American Bar 
Association Commission on Law and Aging. She was appointed to 
the National Legislative Council of the AARP in 2002. Notably 
to our topic today, in 1995-96, she also served as chair of the 
Federal Advisory Committee for the Social Security 
Administration to Review the Representative Payee Program. I am 
looking forward to some of her reactions to some of the things 
we have said about that program. She has also served on the 
board of directors of several national aging organizations.
    Deborah Armstrong has come to join us from New Mexico. She 
is an attorney, and she is also currently the deputy secretary 
of the New Mexico Aging and Long-Term Care Department, formerly 
the State Agency on Aging, and prior to becoming deputy 
secretary was director of the Elder Rights and Health Advocacy 
division.
    I am looking forward to hearing all of your comments. I 
hope Mr. Aldridge will be joining us shortly; perhaps we could 
start with you, Mr. Johns.
    [The prepared statement of Barbara Bovberg follows:]

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STATEMENT OF FRANK JOHNS, ATTORNEY AT LAW, BOOTH, HARRINGTON & 
               JOHNS, NATIONAL ACADEMY OF ELDER 
                   ATTORNEYS, GREENSBORO, NC

    Mr. Johns. Thank you. To participate in a forum such as 
this is an honor in and of itself.
    While Barbara described our credentials, there are as many 
other experts with whom we always collaborate who make it 
possible to share the kind of depth and anecdotal information 
about guardianship that is brought forward in a forum like this 
one. I also want to thank Chairman Craig, who, in his wisdom 
and foresight did something more than I thought would be done 
after the hearings that were conducted in February 2003.
    In academic writings that I have published over the years, 
one thing I have mentioned is that between 1960 and the middle 
1990's, there were no less than 30 major studies done with 
recommendations that carried very little weight. There were 
numerous hearings that had been held that ended with nothing 
going further than the transcript of the hearings themselves.
    With some degree of tenacity and a conviction that supports 
his interest in this area, Senator Craig, on behalf of this 
Committee, sought out and received the involvement of the GAO, 
and for a year now, a study has been ongoing, the likes of 
which is, quite frankly, somewhat of a landmark in this field. 
The potential of this study is that it will target ways by 
which coalitions of funding sources and agency authority will 
join with groups like the National Guardianship Network to 
truly deliver some of the required needs that we see coming in 
the future.
    On that premise, then, my remarks both oral and in writing 
that are shared with you are requested to be made part of the 
transcript, and I further request authorization to extend those 
remarks where appropriate when given the opportunity after the 
hearing is over.
    In terms of a target, I was not sure exactly what would be 
produced in the study at the time I did my writing, although I 
did have the benefit of being interviewed by representatives of 
the GAO who shared with me how they went about the process of 
their investigation, what States they targeted and where they 
focused their inquiry. With that benefit, I primarily focused 
my writing on what is written in the GAO study.
    Basically, it is what we do not know that is going to hurt 
the people we serve. What we do not know is developed in two 
primary areas: what we do not know about those who are 
guardians serving wards and incapacitated elders; and what we 
do not know about the statistics in each and every State and in 
the Federal agencies that are involved with guardianship in 
terms of the numbers of alleged incompetent adults, the numbers 
of incapacitated adults, merged with the problem that there are 
incapacitated minors who are also part of the mix in terms of 
the guardianship analysis.
    What we do not know is honestly what will hurt us in the 
years to come. Actually, the truth of the matter is, what we 
don't know is hurting the people we serve now as we conduct 
this forum. The terribly difficult stories, like the Orshansky 
case that was presented in February 2003, is representative of 
hundreds of anecdotal commentaries and written investigations 
like the one published in the Detroit Free Press in 2000 and 
the one that was published by the Washington Post.
    There are many other investigations going on where, in a 
specific case or a few cases, guardians are found to have 
committed literal criminal acts of stealing from the estates of 
wards and even going so far as to commit criminal acts of abuse 
and physically harming or neglecting the very persons they are 
charged to protect. Couple that with the fact that our public 
agencies are going to be saddled with a significant number of 
vulnerable adults who have no network in the years to come and 
to whom they can only look or the agencies they can only look 
to are the Department of Social Services or Mental Health or 
the agency that the State Government will decide is the literal 
dumping ground of our impoverished, vulnerable elders who need 
a protection much better than that.
    But the problem is we do not have a clue on what the 
numbers are. The report will share with you that they find the 
numbers are increasing, and there is some data to reflect that, 
for example in the largest county in North Carolina, 
Mecklenburg County, where Charlotte, North Carolina is, the 
judge of guardianships there, Martha Kern, will share with you 
that in the last 3 years alone, their docket numbers have 
mushroomed to three and four times what they were for 
guardianships. She knows nothing more than that fact, and that 
fact was garnered by an assistant clerk going through the 
stacks and counting files, because there is no data being 
collected, no systemwide process by which the numbers of 
guardianships are being examined, much less what is happening 
in the guardianships themselves.
    So, if you will, Barbara, my focus is on the fact that we 
do not have good data, and it is just critical that we find a 
source by which funds could be made available where we 
integrate a task force that is not just driven from a Federal 
perspective, but it involves each and every State with a 
commitment to design a model by which data can be collected in 
these States, so that on that foundation, we can give better 
discourse on what is to come and the kind of dollars we are 
going to need to serve them.
    The other piece of that is this: the laws are written for 
monitoring and accountability of guardians. The truth of the 
fact, as I write in my remarks, is truly a matter of virtual 
reality. What you see on the book, you think is real, but when 
you go out to find it, you find it is not real at all. There is 
literally little if any monitoring and accountability, 
especially for guardianship of the person. We are pretty good 
at making people account for the money. What concerns many of 
us is the quality of the life of all of our people, whether 
they are poor or not, needs to be accounted for in delivering 
that which is needed to protect their interests.
    With that, I will close, and I will be glad to help in 
answering any questions. Thank you.
    [The prepared statement of Mr. Johns follows:]

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    Ms. Bovbjerg. Thank you very much, sir.
    Ms. Coleman.

STATEMENT OF NANCY COLEMAN, DIRECTOR, AMERICAN BAR ASSOCIATION 
          COMMISSION ON LAW AND AGING, WASHINGTON, DC

    Ms. Coleman. Thank you.
    I want to look at--I have a written statement which will be 
incorporated, but I want to look at several of the questions 
that were raised here and see if we can move forward with them. 
I think that the General Accounting Office, whatever you are 
called now----
    Ms. Bovbjerg. Government Accountability Office.
    Ms. Coleman. Government Accountability Office; thank you. 
OK; I am going to just call you the GAO.
    Ms. Bovbjerg. It is easier.
    Ms. Coleman. I think that the study is really quite good, 
and I agree with Frank that it pushes the envelope, and I think 
that we needed that. I do not disagree that the issue of data 
is important and, in fact, over 3 years ago, in some work that 
the ABA Commission had done, we had posited that you needed to 
have, in the same way that you do in the field of child abuse 
prevention and in a number of other areas, a taxonomy and a 
data set in order to be able to collect this information.
    The only State that collects data on a routine basis is 
Ohio, and they have it for all of their jurisdictions. Now, why 
would Ohio be able to do it and no other State? That is the 
question. I guess this comes back to the question that Frank 
posed: where is the incentive?
    Now, it turns out, if one looks at child abuse reporting, 
before 20 years ago, there was no systemic reporting there 
either, and it was because of some Federal funds and some 
Federal requirements and some sort of battering over the head 
that we now have that. What makes us think that we cannot use 
those similar vehicles to get at this same issue?
    The second area that I think is important to look at is the 
monitoring. I think that Frank hit it on the head in the sense 
that while it may exist in law, and there are the four 
jurisdictions that you looked at that went beyond what the 
State law is, there are several reasons why the current 
processes are flawed. One, the reporting is poor; two, the 
review and investigation is not there on all parts; three, the 
funding is not there, so that even though you have a good 
statute, you have no funding for it; four, the training, and 
even in those States where you have mandatory training, the 
training can be weak; and fifth, you have the lack of 
relationships to the community organizations and the community 
links. So I think that those are the issues troubling 
monitoring.
    I want to look at coordination now. It is absolutely true 
that the Social Security representative payee program leads the 
way in the number of people that are in it: 7 million people. 
Not all of those, of course, are old people. I must say that in 
the work that we did in the mid-nineties, there are still some 
major issues that they are not addressing, that is, Social 
Security is not addressing. The issue of how people are chosen 
to be representative payees still remains a problem, and there 
have been a number of IG reports on that issue.
    We had a grant, that is, the ABA Commission on Law and 
Aging, had a grant that was a joint grant from the State 
Justice Institute and Social Security to look at that 
coordination. In that report, we stated something similar to 
what is in the GAO report, which states very specifically you 
need to have coordination. You need to share information. You 
need to share when you have people who are bad representative 
payees. In fact, the ABA, as a whole, adopted that provision, 
which overcame the privacy and confidentiality provision, in a 
recommendation that we took before the ABA House of Delegates 3 
years ago. So it is there. It is clear. Social Security is 
balking at it, and they are the only ones.
    Now, the third area, and I think it is important. We took a 
look recently at some of the VA representative payee fiduciary 
relationships, and in those, you still have some problems about 
ownership, about appointment, and about monitoring. I do not 
think that monitoring of guardianships, monitoring of Social 
Security representative payees, and monitoring of VA 
fiduciaries, are all in the same ball park. There is poor 
management of oversight in all three. We have dealt with a 
little of that in the provisions of the recent legislation.
    Now, the fourth area is the interstate question. The 
National College of Probate Judges has a model that is now 
incorporated into their model standards and is part of the ABA 
model standards on transfers of guardianships. It does not deal 
with the question of original jurisdiction, which is something 
that still needs to be looked at. However, in some work that I 
was fortunate enough to participate in, there is an 
international agreement--of course, the United States has not 
signed this agreement--at the Hague. It is called the 
Convention on International Protection of Adults.
    What is important about this to this particular issue is 
that if, in fact, a guardianship or a power of attorney is 
recognized in one jurisdiction, it can be transported to a 
second jurisdiction. That is, the papers that said Frank Johns 
is the guardian for Charlie Sabatino, and Charlie Sabatino has 
some property in Virginia, but this was given in North 
Carolina, Frank can walk into Virginia and use that. So the 
international way of looking at this, while the U.S. has not 
adopted it, is a manner in which we, in the United States, can 
begin to look at it.
    Finally, and the last point that I will make, is that while 
there is still an issue that exists around the use of powers of 
attorney, and while all of us here can go out and establish who 
we want to have as our powers of attorney either for finances 
or for health care, there is a Treasury rule that exists that 
says that a person who is not able to handle their own Social 
Security funds must have a representative payee. That flies in 
the nature of somebody having the ability to name who they want 
to have or to have a joint bank account or a direct deposit.
    Now, while the numbers of older people and probably the 
numbers of disabled people are increasing, the numbers of 
people represented as having representative payees have been 
stable for the last 15 years. The only way that I can see how 
this is true is that people are using direct deposit of Social 
Security checks into their bank accounts, as Social Security 
would have us do it, and negotiating from those joint accounts 
or direct deposit accounts or using powers of attorney.
    In fact, to this end, I went in and asked my friendly 
banker--our office happens to be above a bank--and I asked the 
branch manager, ``What do you do, and how do you find out when 
somebody is no longer able to negotiate their own Social 
Security check? Do you report this to Social Security so that a 
representative payee would be appointed?'' She said she did not 
know anything about that law.
    So there is this conflict that exists that if, in fact, I 
am an attorney, as Frank is, or as others might be, who is 
counseling older people and I say, ``Okay, you need to do this 
planning in advance so that you will not have to have a 
guardian or a representative payee,'' the conflict exists 
because the Federal law around representative payees and the 
Treasury rule says that that person must have a representative 
payee.
    But I think that those are the kinds of things that the 
interagency proposal that was made in the GAO report can deal 
with, and I think that these are the kinds of questions to look 
at.
    Thanks, Barbara.
    [The prepared statement of Ms. Coleman follows:]

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    Ms. Bovbjerg. Thank you very much.
    Ms. Armstrong.

  STATEMENT OF DEBBIE ARMSTRONG, DEPUTY SECRETARY, NEW MEXICO 
     AGING AND LONG TERM SERVICES DEPARTMENT, SANTA FE, NM

    Ms. Armstrong. Thank you. First of all, I am very honored 
to be here. I was a last-minute substitute, so I do not have a 
written statement. I will provide that later. But I am going to 
talk a little bit about the experience we have with 
guardianship in New Mexico. I think what I have to say is that 
it follows right along with the findings in the GAO.
    A couple of things that we have done: first of all, along 
the same lines as has been discussed, there is no accounting, 
no data or information about who all has guardianships or how 
many, unless it is a public guardian; we have some information 
about that, because we are funding them. But otherwise, there 
is only a requirement to do an annual report. There is no 
requirement in the law that that report get reviewed by anyone. 
So, it is completely dependent upon the judge as to whether 
they have the interest, the time, the staff to do that, and to 
the most extent, I do not believe it is done in hardly any 
court.
    So, there really is no accountability, nor do we have a 
mechanism to assess fines or so forth that other States may 
have for failing to file that report or to perform the duties 
as expected. But a couple of things that we did in New Mexico, 
and with good intentions, still are not working well, and that 
is the creation of a public guardianship program. We did it in 
the late eighties, and--the startup funding to create a 
separate nonprofit entity to do this work was provided through 
legislative appropriation.
    The budget that goes toward public guardianship has grown 
in the late eighties from about $250,000 to a little over $2 
million. We have about 380 wards of public guardians and about 
200 that have treatment guardianship. Most of those public 
guardian situations go to one contracted entity, that one that 
was started, and there are lots of allegations against that 
entity about fraud, about exploitation, about inappropriate 
placement of their wards, and it is because they are 
essentially a monopoly, and it has become very difficult to 
control.
    We have tried moving contract oversight, actually, from the 
AG's office, who was not acting on a lot of the issues as 
advocates thought that they ought to. Contract oversight was 
moved to an advocacy organization, the Developmentally Disabled 
Planning Council.
    There are still problems with the representative payee 
situation. In New Mexico, we have separate provisions to do a 
guardianship or a conservatorship. In the public guardian 
situations, the courts determine that the ward does not have 
the money to pay for a guardian. That is why they need a public 
guardian. So the court assumes that there is no need to appoint 
a conservator. So, the public guardian, by default, often 
becomes the representative payee and essentially the 
conservator of whatever little income there might be; and there 
are reports of potential exploitation, even in that limited 
circumstance.
    Among the nonpublic guardians, issues still arise with 
coordination between the representative payee and the guardian 
where even if the guardianship has been removed, that person is 
still the representative payee. So, there are still issues 
going on.
    There is also no requirement for training. So, other than 
in the public guardianship context, with contract requirement 
that they utilize appropriately-trained staff, there is not a 
required training in statute. In setting up guardianships, we 
have tried to do some things to protect, to the greatest extent 
possible, the appropriateness of guardianship by having both a 
guardian ad litem representing the proposed ward and a court-
appointed visitor doing an independent assessment of the need 
for guardianship.
    We still find, and I am speaking a lot from my experience 
with the ombudsman program and their dealing with residents of 
nursing facilities who may have guardianship, that some 
guardianships seem inappropriate. We have fought the guardian 
on a number of occasions from inappropriately moving a 
resident. We had an instance last year where the publicly-
funded guardian moved, against the wishes of the resident, who 
was very well-established in a facility and happy there, moved 
to one closer to where the guardianship office was, which meant 
completely leaving the community and any friends and support 
systems that were there.
    So, as you have reported in the GAO study, we find the same 
things happening in New Mexico. Thank you.
    Ms. Bovbjerg. Thank you very much.
    I want to welcome Robert Aldridge. I was introducing 
everyone before he arrived, and I held off introducing him so 
he could hear the nice things I said about him. Robert Aldridge 
is an attorney in Idaho. His practice is focused on estate 
planning, taxation, probate and elder law. He is past chairman 
and current legislative chairman of the Taxation, Probate and 
Trust Section of the Idaho State Bar, and he represents the bar 
on the Idaho Work Force Investment Board and is vice president 
of the board and the one-stop chairman for the Work Force 
Investment Board.
    He is also the long-term chairman of Retirement Jobs of 
Idaho, which provides nonprofit training to allow the elderly 
to reenter the workforce. He serves on the Legislative 
Oversight Committee, created by the Idaho Legislature, that is 
currently studying the guardianship and conservatorship system 
of Idaho by providing expertise and technical assistance to the 
Governor, the legislature and the supreme court.
    He brings a wealth of perspective on this issue, and we 
look forward to his comments.

 STATEMENT OF ROBERT L. ALDRIDGE, ELDER LAW ATTORNEY, BOISE, ID

    Mr. Aldridge. Thank you. When I was here in February 2003 
with Mr. Johns, we were primarily talking then about the 
horrors of the system on the appointment side, what was 
happening on the intake. What, really, I have tried to focus on 
in my written remarks is now what happens after appointment? 
How do you monitor? How do you control? That is somewhat 
counterintuitively still involved in the preappointment process 
in many cases. By doing certain things at the front end, you 
eliminate a lot of the problems at the back end.
    So, we have tried to create in Idaho a very detailed 
statutory requirement for the initial filings, for the contents 
of those. Our bar section has published a set of forms books in 
terms of guardianship and similar types of proceedings that is 
extremely detailed, has charts, flows and so forth that could 
lead literally anyone through that process.
    We also have worked hard to maintain the independence of 
the guardian ad litem, the court visitor, from the process, to 
make sure they are not in some way controlled by the 
petitioning parties and also to make sure that the guardian ad 
litem is a continuation after the appointment. The guardian ad 
litem acts on as almost, in a sense, a second look acting on 
behalf of the person throughout the entire process.
    Also, we do a lot of front end requirements for reporting 
through the court visitor and so forth to establish initially 
what are the assets. We require written plans from the proposed 
conservator/proposed guardian so that in advance, we know what 
is supposed to be happening. This gives a basis, then, for the 
monitoring system to know whether things are being followed.
    We also recently adopted a statute based, in part, on some 
of the ABA statistics and other statistics showing that in many 
cases, felons were a disproportionate percentage of those who 
were abusing, either physically or financially or otherwise, 
the elderly. A requirement that a court could appoint a felon 
as a conservator or guardian but only after finding by clear 
and convincing evidence that it was in the best interests of a 
ward, et cetera. So, at the front end, you have to very clearly 
keep track of how the system sets up its initiation.
    After the appointment has been made, a series of things: 
No. 1, we try to have very strong volunteer committees on our 
bar section with AARP and et cetera. We have outside entities 
that help in the monitoring process and in training. We also 
have created permanent staff attached to the court but paid 
through State funds that actually monitors every single 
guardianship, every single conservatorship, looks at all the 
status reports, reads all of the financial reports; goes out 
and, with the guardian, visits or sometimes without the 
guardian, visits.
    We also have created very detailed requirements for the 
reports themselves so that somebody just doesn't turn in a 
check ledger and say that's my report. Those are extremely 
detailed, and they are in the form books online and so forth. 
We have also given the court the ability to, on its own 
initiative, if no one else acts, to impose all sorts of fines, 
to make people disgorge funds, to undo what has been done.
    We have also done a great deal of work on training. It is 
mandatory that the people who act as guardians who especially, 
if not professionals in that area, have to have training. So we 
have created videos; we have extensive handbooks that we have 
created for each of those offices; and those are mandated to be 
gone through, and especially with some help from AARP, we have 
been able to do that in some detail.
    The thing that I think has worked best, and it has been 
referenced several times, is the tracking of cases. We started 
at the top at the Idaho Supreme Court and completely rebuilt 
what we call the ISTAR system, which is the court case tracking 
system. We can now tell you exactly how many cases of 
guardianship and conservatorship there are; what kind they are; 
which ones are developmentally disabled, which ones are minors, 
which ones are adults; which ones are active, which ones are 
closed; which ones have reports, which ones do not, et cetera, 
and that has tremendously helped in terms of monitoring these. 
We are not having to have, as was referenced, clerks wander 
down and dig through dusty paper files to find out which cases 
are even there for the things that have been filed.
    We have also tried to do information sharing. We have 
coordinated with the VA, which has independent requirements for 
those who are in the VA system and tried to get uniform methods 
of reporting and sharing of information with them. We also 
share with the equivalent of your office with the Ombudsman for 
the Elderly and the Commission on Aging, with health and 
welfare, all of the abuse statistics we can and try to get 
those into the system as quickly as possible.
    So, our emphasis has been trying to make the job easy, so 
that it does not require a tremendous amount of money or staff 
to do; that it takes the efforts spread over a number of 
different areas at as little cost as possible.
    I would like to echo what has been said about the problems 
with Social Security. We continuously have cases in which there 
is an appointment of a conservator. They are then made the 
representative payee. The next day, the person who has been 
abusing the elderly fiscally walks in, changes it back to 
themselves and off goes the money again. It is a huge problem.
    We have gotten together with the VA and solved that 
problem. We have not solved it with Social Security. I think 
that is one of the main things we still see as a problem, 
because for many of our elderly under conservatorship, that is 
the money. That is all they have is Social Security. When that 
disappears, now, we see increased societal costs in Medicaid, 
Medicare and others.
    [The prepared statement of Mr. Aldridge follows:]

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    Ms. Bovbjerg. Thank you very much.
    I wanted to start off by asking some general questions. One 
of the general things I wanted to observe is that what we see 
both in terms of collection and information of data and on 
monitoring is you have, at the Federal Government level, issues 
within the Federal programs, the benefit programs that appoint 
representative payees. If there had not been such monitoring 
issues at the Social Security Administration, we would not have 
seen the legislation that became law last January, the Social 
Security Protection Act, which took on the management of the 
representative payee program.
    This is also true in terms of sharing information. GAO can 
make recommendations to Federal agencies about how they should 
interact with each other, share information and coordinate. But 
one of the things I wanted to ask this panel, since I am really 
the only one from the Federal level participating, is how best 
can the Federal Government support an interaction between the 
States and the Federal Government, and also among the States?
    Frequently, at GAO, when we are thinking about these 
things, we run into unfunded mandate issues or run into just 
simply the diversity of the States, which make us not want to 
be prescriptive in any particular way. Because you each have 
somewhat different perspectives on this, I wondered if each of 
you could take that on a little bit.
    Mr. Aldridge. I am not shy on that issue.
    What I think we need initially is the ability to have 
funding for unusual, innovative programs. In Idaho, we have 
been able to do that more easily because we are small, and we 
can do that largely through volunteers, but trying to get an 
individual program through the legislature is very difficult.
    So, we need first of all funding to get the program in 
place. When it is in place, we need to be able to show 
statistics and data, and that is where that needs to be shared 
across State boundaries; not just within us, but we know what 
wheels have already been invented. So, we can use that to get 
eventual legislative funding.
    We also need data bases on who has abused the elderly. 
Right now, when somebody comes in and petitions, it can be very 
difficult to find out whether, that person, we passed the nice 
felon statute. We may not be able to get that information, 
especially if it involves abuse of the elderly. So, all those 
central areas need to be there so that we can track people as 
they go across the system.
    We also--we created from our end, at least, some pretty 
good tracking of transfers of cases, but I think that could be 
better coordinated in some ways through the Federal level, so 
that you have some central way to find out where people are, 
and if you transfer, how do you get courts together? How do you 
get them to discuss where is the proper jurisdiction?
    Ms. Coleman. Can I ask--I mean, it seems to me that there 
are both questions of transfer, and then, there is the question 
of where is the proper venue for this to take place, and who is 
then going to monitor it?
    In the transfer question, the issue is if both ward and 
guardian or conservator are moving to another State, or you 
have a second possibility, and that is for those who live along 
borders i.e., you know, along a State line. If you are going to 
place somebody from Ohio in a Kentucky nursing home, how is it 
that you have the authority to then make decisions about that 
person, given that these are mostly State issues?
    OK; I agree with you that those are the kinds of questions 
that need to be addressed. They are partially addressed in the 
National College of Probate Judges model. However, it does not 
deal with original jurisdiction, so you go back to the 
Orshansky case or some of the other infamous cases.
    The Hague answered that question by presence and choice of 
law. Now, according to the Hague Convention, Mrs. Orshansky is 
in the district at the time that that original petition was 
made, then, they ought to look at it there. However, there were 
some other issues. If Ms. Orshansky was in New York, then, it 
should have taken place in New York, and that is who should 
hold the ground as to where it is.
    Because Ms. Orshansky had stated her choice of who she 
wanted to make decisions about where she wanted to be, the 
court should have looked at that. Again, I think those are 
issues.
    I think that the major question that Barbara poses is one 
of asking how should the Federal Government agencies interact 
with State agencies, and where does the flow of information 
occur? I think that is a much harder question. In the case of 
where you have, as you have in Idaho, figured out a way to work 
with the VA in their appointments, we need to have better ways 
of working with Social Security, because it is the gorilla. It 
has 7 million people who have representative payees. Nobody 
else has that.
    The question here is, and there are some civil liberties 
issues, whether or not you can maintain lists of people in a 
State who may have abused or been convicted of abuse or, as in 
the case in Pennsylvania recently, the State said you cannot.
    So, let us look at the kinds of questions of what 
information you can keep and what you cannot keep and whether 
or not there is a choice for somebody to have been 
rehabilitated.
    Mr. Johns. Single shots at any given problem may focus on 
the answer and the narrow focus. However, I think, Barbara, 
your request was for what the broader view would dictate in 
terms of how larger bodies of those who can study what is wrong 
and deal with the answers and come up with models by which 
implementation might occur; I think that is where you were 
focusing.
    Let me suggest two things: first, out of the Wingspan 
Conference of 2001 came a series of 75 recommendations, and I 
must acknowledge Charlie Sabatino as being one of the co-chairs 
of that conference with me. What we found was that with those 
recommendations, we are at a loss to see how we might implement 
them. So what we have focused on is the organization of the 
National Guardianship Network.
    What we did was to bring together several significant 
national players, organizations like the ABA Commission on Law 
and Aging, the National College of Probate Judges, and two of 
the judges who are renowned, including current sitting 
president Irv Condon, who will be sharing remarks at this 
forum, are participants in this network; including the National 
Guardianship Association, people that you interviewed, and my 
organization, the National Academy of Elder Law Attorneys.
    The focus of that network is to come together periodically 
to ask, ``Have we done anything?'' If we have done something, 
what is it? Is there a source from which we might be given some 
monies, like a Federal foundation that would then open up 
additional task forces beyond just a Federal agency design.
    What we are realizing is this is a difficult way to deal 
with it, because you are almost in a vacuum. When that network 
comes together and talks, the organizations that are 
represented there are saying, ``Well, we cannot keep it moving 
in the organizations in which we are currently functioning. We 
need something else, something more.''
    We have identified that something else, and it is a 
conference that is set for this November in Colorado Springs, 
where representatives of the GAO will present your study. The 
point is in this conference there is going to be a Wingspan 
Implementation Session where invited delegates will 
specifically design a framework by which we go to each and 
every State and say, ``Here is the basis by which change might 
occur in your State. Here are the people that we have worked 
with in your State at this conference who are going to help us 
show you how to take these steps.''
    Part of what the GAO could do is help design, or at least 
look at, ways by which we talk to Federal agencies that you are 
saying need to be talking among themselves. We believe they 
need to be talking with us as well.
    Ms. Bovbjerg. They think that, too.
    Mr. Johns. Yes, and we have extended that to asking the 
chief justices of the supreme courts of all the States to send 
representatives as participants to this conference, because we 
know that the hierarchy and the leadership of these judiciaries 
are the ones who look at how they are going to gather data, how 
they are going to deal with the issues.
    If we can at least make them aware of the fact that this is 
a crisis in the offing, that in the next few years, they are 
going to have to deal with it one way or the other, then, they 
may well come to the table with us and accept our models and 
begin implementation.
    Ms. Bovbjerg. I just wanted to add that GAO did recommend 
that Social Security convene an interagency study group that 
would include representatives from States and from courts. We 
thought the sharing among Federal agencies was the easy part, 
frankly, but it is being done in bits and pieces. However, we 
thought that the real question was how federal agencies could 
share data back and forth with the courts.
    I do not really want to make SSA's argument, because they 
disagreed with us, as you will see in this report, but they 
cited a couple of things as being barriers to this. The main 
one was the Privacy Act. They felt that they do not have a 
routine use agreement under the Privacy Act, and we believe 
that this is why they should convene an interagency task force.
    I think one of the concerns that I know that Social 
Security will have is that there are 50 States and the District 
of Columbia, and there are all of these courts, and they will 
feel that they have to have separate agreements with each. So 
for them it will be a complicated and potentially time-
consuming thing to do. It is the same process that they use to 
get death information, for example, from States. They have to 
have special agreements with each one.
    But we think that perhaps there is future work to be done 
on how SSA and states reach these agreements and how, perhaps, 
to think about them, differently. But certainly, they need to 
take this on in the area of guardianship. As you were talking, 
I was thinking about the diversity of States, and also the 
courts within each State. Perhaps Ms. Armstrong could talk 
about this a little bit as it relates to New Mexico. The State 
says ``These are our standards for guardianship, and, we are 
not seeing courts not meeting those standards.'' GAO did not 
perform a compliance review.''
    But we did see quite a range in the way that state 
standards are implemented. So, I wonder even if you could get 
to a point where there is agreement upon the kinds of data to 
collect, and how to share the data back and forth. How would 
this really work on the ground? Do you have a feeling for that?
    Ms. Armstrong. You are right that in New Mexico, like many 
other States, it is very different in every court, because it 
is largely dependent on the judge. I do not have any great 
ideas. I think that as a State that is struggling, we would 
like to see models be developed that can be adopted by courts 
rather than each one doing their own thing. Recognizing that it 
is a national crisis would be persuasive in regard to adopting 
those models.
    Dealing with the issues with representative payees and 
Social Security and their interaction and the jurisdictional 
issues you raised are definitely issues in New Mexico. We have 
border communities where that is an issue. So I do not have a 
great answer, but recognizing that it is a national problem and 
developing models that can be replicated and give courts 
something to work with would be very helpful.
    Ms. Coleman. Barbara, I want to add a piece of history to 
this. In 1987, the Associated Press did an unprecedented set of 
investigations that resulted in the fall of 1987, in a week in 
September, that all of the AP reporters did pieces on 
guardianship. That was used to push and push and push a whole 
lot of other investigative and legislative changes that we have 
seen over the last 25 years. I believe--I am going to give you 
credit--no, no, I truly mean this right now, that the fact that 
you have taken your study and targeted it at what I believe are 
the five most important issues will, in fact, raise that 
visibility in a way that I am hopeful, given that we have 
pending the Elder Justice Act; given that Frank's program has 
invited, lo and behold, not under his guidance, all of the 
chief justices or their representatives, because it is the 
chief justices, if they agree to it, who can order States to 
put into place common definitions and basic data collection.
    I believe that if we looked at the computerization of 
courts--you know, yesterday, we talked about, the press talked 
about, the computerization of medical records, we will be able 
to more or less, given the impetus of this report and this 
study, push people in that direction. So, I think that is the 
way that we can look to move forward and push on these kinds of 
issues.
    Now, again, I think that when the ABA did its study on the 
privacy question that Social Security disagreed with us on, and 
that it still disagree with you on today--I brought in two 
experts on privacy; we had a paper written on that, which I 
will share with you. We really did come to the conclusion that 
it could be overcome, and it is overcome in a variety of ways.
    You know, Social Security shares its data base with a lot 
of people. So, it is not as though it cannot do it with courts. 
It is not as though it does do it with a lot of other folks. I 
think it is overcomeable, and I think it is an issue which they 
have to be pressed on, and your report will press them 
publicly.
    Mr. Johns. Barbara, if I might, I believe that Nancy is 
exactly right on the point she makes. I think, too, however, 
that we are actually talking about something that may be two or 
three steps beyond where we are. All I would like to do is just 
talk to them generally. All I would like to hear is that some 
groups met for discussion. We are not talking about sharing the 
data yet. Let us just talk about what the problems are. Let us 
find a forum to which these agencies are invited; at which our 
courts are represented.
    I must ask that you add one other identified group to those 
who are going to be talking together. You said the State 
agencies, and you mentioned the State agencies, the Federal 
agencies and the State courts, but there are major consumer 
group organizations, including the National Academy, including 
the ABA, including NGA that should be at the forum.
    Ms. Bovbjerg. I did not mean to leave them out.
    Mr. Johns. Many groups in the private sector would love to 
be in the room just to talk about it. I think what we have 
missed is that significant pieces of empirical data have been 
collected, and reported, the last one being the one out of the 
Center for Social Gerontology in 1994, which was 2 years late 
in developing the actual data so that it could be published.
    So really, we are probably--this report is only 12 to 14 
years after real data has been looked at it all. The beauty of 
the report that you have done is that it is current, and it may 
produce dialog. I think the great benefit that could come from 
today is that we identify those who would come together and 
identify a place and then say, ``Will you please come and set 
an agenda by which we begin talking about what we need to do 
together.''
    Mr. Aldridge. I would like to say amen to that. The only 
way we were able to build things was to create very, very broad 
groups to come before them. For example, right now, we have 
currently a grant fund proposal that we are working through 
Senator Craig's office to try to fund some innovative ways of 
doing training. But that training is going to involve 
everything from AARP to Kin Care Coalitions to National Academy 
of Law Representatives, whoever we can get to be in that. We 
try to pull in hospital associations, nursing homes, whoever 
might be there. The broader that coalition is, the broader that 
base, the more likely you are going to get things done.
    Ms. Bovbjerg. Let me ask you about burden, because one of 
the things we heard, and I think you brought this up, Robert, 
earlier on is the states and courts would do more monitoring if 
they had the funds. I was wondering about the data collection 
and the data sharing as well, because you have all been, and I 
am gratified to hear this, very positive about our 
recommendations addressing these things. But I wonder what 
might this represent at the point of collection? Is that 
something we have to worry about? I am thinking about 
implementation.
    Mr. Johns. Yes, but even then, to say that it is too great 
a burden, you are putting too much paperwork on us; there is no 
way that we are going to be able to go out there and do this, 
there is a great way to excuse yourself from beginning at all. 
So you are right. It is a good question to ask: well, how much 
of a burden do you think it might be?
    Let me answer in one way. When North Carolina, revised its 
statute in 1987, the reformers were up against the guardianship 
judges who were really trying to impede reform. In the end, we 
maneuvered a way that created a very simple, one-page data 
gathering statement that the guardian of a person must file. 
The truth of the matter is that the burden of that component of 
data gathering is not great at all.
    The fact that none of the administrative offices cared to 
follow through on collecting the data from the guardians is 
part a cultural, part historical explanation of what 
guardianship is--partially a political quagmire.
    Ms. Coleman. Barbara, you know, one of the questions which 
Social Security often asks about is the purpose of the 
representative payee program. The purpose of the representative 
payee program in 1939, when it was created, was a way to pay 
benefits. To a large extent, the representative payee program 
still is that. Yet, it has become and is traded upon as sort of 
a stepchild or less-intrusive guardianship.
    Now, if you are listening to what Frank just said, you have 
the sense that people do not want to change. They do not want 
to accept the responsibility in the court system in North 
Carolina that once you've made somebody a guardian, you do not 
need to worry about it anymore. So you have the same sort of 
lack of responsibility both in the Social Security 
representative payee program and in many of the guardianship 
programs where the courts say that they already put somebody in 
that place, so they do not have to worry about it any more.
    So let us look at it together and ask the questions: Which 
States currently do not know how many people are under a 
guardianship? How many are alive? How many are dead? How many 
are actually in institutions? How many are living in the 
community? If you cannot answer those questions, what is it 
that would allow people to be able to answer those questions 
fairly quickly?
    Well, you would if, in fact, you had a computerized data 
base. In Idaho, you know where those people are. You must be 
able to account for them. So was it burdensome, Robert?
    Mr. Aldridge. No, it was not burdensome at all. We did a 
series of things. One, again, we tried to build a coalition so 
that the burden was shared. Information came from a lot of 
different areas, and so, we enlisted the nursing homes and 
assisted livings and so forth to be a part of the reporting 
system. We also went out to the financial institutions and, No. 
1, gave them statutory definitions of potential fiscal abuse 
and then immunity if they reported it, very much along the 
lines of child abuse reporting.
    We also did the actual training. We went through the State. 
I went all over the State with a group of people, and we 
trained bank tellers and vice-presidents how to recognize 
fiscal abuse, where to report it. So you can enlist a lot of 
players to come in. If you do that, it is not burdensome at 
all. Again, the resistance to change is hard to overcome, but 
if you tell them we will do 90 percent of it, and we will put 
your 10 percent at the end, a lot of times, you can get it 
done.
    Mr. Johns. An anecdotal comment, Barbara. In the Baltimore 
County area, there is a significant advocate named Joan 
O'Sullivan. Joan is a professor of law in that community and 
has been a passionate advocate for individuals caught in 
guardianship processes. Joan, on her own, with a professor 
colleague of hers, knew that there was very little data about 
guardianships in Baltimore County. They designed a fairly 
simple survey, and on their own, with students they had, went 
out and surveyed all of the community and looked at all of the 
guardianship files in that county, and the compilation of it 
and then some of her conclusions drawn from it was not a 
significant difficult task to do.
    Compare that with the fact that I took that survey with her 
blessing. I went to North Carolina to the Office of 
Administrative Courts, explaining that I would go find some 
funding help from a private source if the AOC would just give 
me the blessing to go to the major metropolitan counties in 
North Carolina to do this survey to gather the data.
    The response from the administrator of the court system was 
that our computer system was such that there was no way we 
could integrate the data you gather, and it was so low a 
priority that they did not care to try. That was the literal 
answer that was given, and we are still without the 
information. So it is not that it is a burden, but Nancy 
certainly hits it correctly: based on history and based on the 
fact that inertia is hard to come by, you cannot get them 
moving in any direction at all. They would rather sit on what 
they have, until the firestorms and horror stories mount in 
such a way that the AP Gulag stories of late 1987 erupts again 
to show that too many of our elders are being harmed.
    The numbers are going to be so great--in fact, they may 
already be that great--that we are really losing time, and that 
is the painful part of this.
    Ms. Bovbjerg. This is a frustration; it brings me to the 
frustration of this project. We started off when Senator 
Craig's staff came to us and said, ``What about these reports 
surfacing about abuse, especially after hearing last year? We 
are hearing about Ms. Orshansky's story for example.''
    So, GAO was planning to look at the incidence and the 
frequency of abuse in guardianships and discovered that we 
could not even find out how many guardianships there were, let 
alone the frequency of abuse, which we were hoping was low. We 
were hoping that these were horrifying but anecdotal stories. 
So we ended up recommending that, to manage an effective 
guardianship program, even though it is not one program but 
many programs nationwide, you really need basic information.
    But in looking at the monitoring side, where we looked at 
what we called the exemplary programs? Many of you told us 
these were the programs that do some of the things that you 
folks have been talking today, getting people out there to 
actually see the person under guardianship and evaluate their 
condition.
    I guess the question I wanted to pose to the panel is how 
prevalent do you think abuse under guardianship is? That is one 
thing. Is there something that could be done, is there 
something at the Federal level that we could do to reduce and 
prevent abuse? Perhaps, I don't know, it is a legislative 
solution, or perhaps it is something that we can try to get 
agencies to think about, but is there something that we could 
do that would help address what we think is the problem, even 
if we do not know how big it is?
    Mr. Johns. Yes.
    Ms. Bovbjerg. I should stop with these long questions.
    Mr. Johns. To follow up with the yes answer, the 
explanation is that the probability is that because you get to 
go see how the exemplary programs are run, and then, when you 
see them, you see that there are few, if any, reports of abuse, 
it leads to the logical conclusion that the horror stories are 
few and far between.
    Ms. Bovbjerg. Or perhaps prevented from becoming horror 
stories.
    Mr. Johns. In those communities. But those are a very small 
percentage of the total number of communities in which you are 
going to find the data--we believe that is going to be 
difficult. Let me say on behalf of the National Guardianship 
Association that to paint guardians generally as the bad guys 
is really a simplistic sound bite that is unfair and improperly 
fired in terms of a round.
    Many, many guardians educate themselves, and through the 
NGA, they conduct education and training, the likes of which we 
really have not seen before. That is really new. However, there 
are the unscrupulous profiteers and those who would be 
predators, and we really have no way to be sure who they are, 
and that is truly the problem.
    Mr. Aldridge. We went through a process that identified 
that for us. When we started all this in 1989, I undertook it 
as a project of our bar section working with the local probate 
court. We started with the situation where there was absolutely 
no monitoring whatsoever. We had no way to identify anything, 
et cetera. So we started in that condition. We then built a 
system, found out who was there, et cetera, and now had a data 
base of cases. We were able to go directly to those and see how 
many of those did have abuse.
    Now, abuse is difficult, because there is a tendency to 
look only at the guardian, but there may be other abuses: the 
petitioning attorney or others may be charging exorbitant fees 
or acting inappropriately, et cetera. It is a broad spectrum. 
But nonetheless, in those cases, there was a very high 
percentage that had some form of abuse in them.
    Now that we have the system in place, the amount of abuse 
is extremely small. So, it tells at least to me in our system, 
it said to me that yes, there is a lot of abuse out there, and 
it can be easily prevented with the right techniques.
    Mr. Johns. The one other answer I had, if I might, is this. 
For example, in North Carolina, when there is a guardianship, 
and there is very little money, and there is only a Social 
Security check, the clerks have the discretion to disregard any 
accounting for that Social Security check and the funds and how 
they are spent for that ward. They just say, ``Well, what we 
are going to do is just give you Letters of Guardianship the 
Person, for which we ask little or no information about.''
    The guardian then goes to get the Social Security check as 
representative payee. Now, Social Security may think because we 
have anointed the person with Letters of Guardianship, there is 
some oversight somewhere. But the truth of the matter is that 
the guardian is getting that check, and there is no 
accountability.
    Now, in fairness to North Carolina's view of it, the more 
experienced judges will control that expense to that family, 
dragging it through a process that requires accounting and then 
some form of audit just to see to it that they get that check 
is so burdensome that we believe that for these people who, No. 
1, are vulnerable, and No. 2, are of such modest means that 
that is about all they get, we felt it was easiest to just give 
it to the person standing as representative payee, because the 
Federal Government is watching them.
    Ms. Bovbjerg. I would say on the representative payee 
program that generally, the Social Security Administration 
program is watching the big players--the representative payees, 
many of them nursing homes, that have many wards--and that it 
reviews their use of the funds regularly. You are right about 
the single ones. Just so everyone here knows, the SSA IG is 
embarking on a study sampling the single representative payees 
and taking a look at what conditions are there, which may be, 
as far as I know, really the first time something like that has 
been been done. But there is a lot of concern, I know, as they 
go out and do this that they will be sending investigators out 
to descend on a family who is acting as the representative 
payee for a disabled child or that will frighten people 
unnecessarily and make them do unnecessary paperwork.
    So they are really trying to balance the need for better 
information against burdening individuals. They are struggling 
with it, but they are just getting started.
    I wondered if we should open up for any questions that 
anyone in the audience might have. I know we are doing 
everything miked for the record, and so, if anyone does have a 
question, I would invite you to come over here to the podium 
where we have a mike that you could ask the panelists. You do 
not have to, but I thought because this is a forum, perhaps we 
should open it up to audience participation.
    Do you have a question?
    Ms. Coleman. Perhaps while people are thinking of questions 
let me just comment on the issue that I think is a cross-issue. 
Social Security asks a person who is a representative payee to 
send in a report annually and to say how the money that the 
person received was spent. But it does not ask it in a way that 
says, ``I as the representative payee, spent $250 on clothes 
and $650 on food'' or that the representative payee had 
anything in their back pocket to substantiate that. They ask 
for percentages.
    So it does not even know, nor does it look back to see 
whether or not the reporting happens. This is the crossover 
issue: when you have a guardian and a representative payee, you 
have one agency telling the other agency that the other one is 
watching, and nobody is watching. I think that the issue still 
remains even with those triennial look-sees that Social 
Security does of the institutional and, now, large payees. I 
think that there is still the potential for a whole lot of 
abuse.
    There is double-dealing, according to Social Security. One 
of the representative payees that we looked at in 1995, 1996, 
charged a fee. They legitimately could charge a fee. But they 
also charged a fee because they were out of state. In order for 
the beneficiary to get a check, they had to make a long-
distance phone call, have a check sent to a rural post office 
box, pay for the Federal Express, and then pay for the check 
cashing.
    Now, how much money do you think they lost from their 
benefit check paying those service charges. What kind of 
protection was that for the beneficiary? So you have just got 
to look more at that or an agency that charges itself for 
services.
    Mr. Aldridge. One other thing we have not talked about that 
we have tried to enlist as another player is the criminal 
investigation side. We are in the midst of setting our abuse of 
the elderly to include being a misdemeanor up to $1,000, but a 
felony for anything above that or which involves physical 
abuse, even if they are acting as conservator, guardian, 
trustee, power of attorney, whatever. Then, we are setting a 
method to train police officers how to investigate that, 
because right now, they do not know how. They know how to 
investigate physical abuse, but they do not know fiscal.
    So, I think that is something where we can list some 
players, because I think right now, most people who are 
representative payees, et cetera, just are not afraid. They are 
not worried about what is going to happen to them from Social 
Security or from the court systems. But if they know that 
regardless of whether those people are satisfied, there is 
potentially a police officer out there waiting to put handcuffs 
on them if they have made off with even a dollar on and a 
felony if it is over $1,000, you may see more compliance.
    Ms. Bovbjerg. Well, let me ask the two of you who are in 
the trenches in the States: What about the VA? My understanding 
is that VA has a field examination requirement where they send 
folks out to see the person who is the beneficiary and to talk 
to the financial fiduciary. Do you think that they are 
achieving better results, that VA is acting to prevent and 
deter abuse by doing that? Do they have a better record than 
SSA?
    Ms. Armstrong. Yes; I am not sure I know the detail how it 
works in New Mexico. What we have seen is that the VA system, 
is separate, and they do their guardianships, and I think, when 
the VA budget gets crunched there is less and less monitoring 
of the guardianships and less involvement just because of a 
budgetary issue.
    Mr. Johns. They have made it so complicated in North 
Carolina, where they have absolutely insisted on a separate 
statutory design for a veteran guardianship process that 
everybody runs away from them, because when you are caught up 
in their process, you cannot even get through the dialing 
problem of tracking somebody down. You will never speak to a 
human being in the VA. If they do actually go out and check, we 
have never seen them, and we have done literally hundreds and 
hundreds of VA cases over the last 26 years, and talk about 
making something much more difficult for the consumers when you 
are trying to do something which will protect their interests, 
the VA is doing that.
    Mr. Aldridge. We have kind of gone the opposite way in 
Idaho. Kim Tisch and I are on a first-name basis, and we 
routinely split up duties. Very often, they are heading out to 
someplace, and so, we will tag into that and get the 
information from them, or they know that we are in the middle 
of a guardianship, and we are going to be getting info, and so, 
we feed that back to them. They have been very cooperative.
    Now, that may be the function of a small State compared to 
a large one, where the numbers are more manageable, but it has 
been the direct opposite where we are, and it has been a very 
profitable alliance.
    Ms. Coleman. Last month, the veterans benefits committee on 
the House side had a hearing to look at similar legislation to 
the Social Security Protection Act. The VA itself objected and 
said it does not have problems in that regard. It does not have 
fiduciary problems. Yet a year ago, the VA IG said, ``In fact, 
it does have problems of financial abuse.`` So again, you are 
asking one part of the VA versus another part of the VA, and I 
think representative Susan Davis from San Diego who has 
sponsored some legislation on that.
    Ms. Bovbjerg. It also sounds like from what Frank is saying 
and what you are saying, Robert, that it may also be based on 
relationships that have been formed between a particular State 
and the particular region of the Federal agency, which is kind 
of discouraging too, I guess.
    Mr. Aldridge. Well, another thing, too, that I think that 
any solutions we come up with have to recognize is that there 
is a huge disparity between the urban side and the rural side. 
I am on the Work Source Board for Idaho. Technically, our 
entire State for Federal Work Source is rural, including our 
capital city. It is deemed to be rural. We have entire counties 
that are bigger than a number of States and have less than 
5,000 people in them.
    The solutions to work there are very different than when 
you have, you know, the downtown boroughs of New York City, and 
I think that any ultimate solution that comes up would have to 
take that into effect.
    Ms. Bovbjerg. Well, we have talked a lot about what GAO 
recommended, which I am very gratified by, being from GAO. 
We've talked about data collection and about the need for 
better coordination across States, coordination between States 
and the Federal Government, and within Federal agencies. What 
other reforms should we be thinking about at the Federal level? 
I recognize that guardianship is not a Federal program, but the 
Federal Government still has an interest; certainly has pieces 
of programs that intersect but with guardianship but, in fact, 
as you say, Nancy, representative payees are not guardians. 
What other reforms should we think about? We have the ear of 
the Senate Aging Committee today.
    Mr. Johns. I have one suggestion, and it has been made 
before. It comes from a published decision in 1999 in a case 
that I cite in a footnote of my testimony titled Rudow v. State 
Medical Services Commissioner in the State of Connecticut. What 
the case addressed was if you are going to advocate the due 
process interests of someone who has no money, then, how are 
you going to find appropriate representative counsel to 
advocate those interests?
    What they realized was that on issues of quality of care 
within nursing home environments where Medicaid patients were 
housed, and they were also the wards of guardianships, but they 
were eligible for Medicaid, therefore, they, by definition, had 
little or no money; and the lawyers asserted that as a due 
process mandate, that Medicaid funding that came out to the 
facility must carve out monies sufficient for legal counsel to 
advocate the due process interests of the ward not just in 
terms of the adjudication of capacity but also in terms of 
monitoring and advocating the interests of those individuals 
under the guardianship throughout the process of the 
guardianship.
    I would suggest that part of those Medicaid dollars be set 
aside for due process and advocacy interests of those who have 
no way to advocate their interests on their own.
    Mr. Aldridge. Absolutely. Our major problem in our State is 
people whom we know are being wronged, and there is no way to 
get that into court. There are simply no dollars to pay for it. 
We do as much pro bono work as we can, but there are limits. 
You can only do so much. If that were a formalized program, 
then, that would be a tremendous help. Again, that reforms the 
system. When the people who are out there know that that is in 
place, then, they change. They take it into effect.
    Mr. Johns. The impact, Barbara, I know that you can sense 
that the fiscal impact would be a tremendous hurdle that we 
would have to overcome, because all of the health care 
interests' lobbies would realize that that would be a carve-out 
of dollars that they are supposed to get in the end. So unless 
you are going to say to them, ``Well, we are not going to hurt 
the reimbursement basis on which you receive your Medicaid 
dollars. You have got to then show in your analysis fiscally 
that there is some increase in budgetary funding that is going 
to cap that out.''
    Ms. Coleman. I cannot tell you exactly, but we did review 
all of the State Medicaid plans, and if, in fact, it exists in 
the State Medicaid plan that you can pay for guardianship 
services, then, the guardian can be paid for. So it exists 
although I cannot pull the number of states off the top of my 
head.
    Mr. Johns. Well, it was in Connecticut, because that was 
the basis on which they could litigate the case.
    Ms. Coleman. I am just saying that we looked at a number of 
other States to be able to look at that.
    Again, I would go back to the example that I used earlier, 
about child abuse reporting. It was the incentive that the Feds 
used to get States to do reporting across the board on child 
abuse, you know, using common definitions; now, States fought 
it, but they would have lost their foster care money.
    I grant you, I can go back and say, ``OK, Nancy, you know 
as well as I do that the Keys Amendment sanction to make sure 
that board and care facilities in 1976 were in compliance with 
those five standards did not work. It is still there in 
Medicaid in the assisted living waiver programs. It still does 
not work.'' On the other hand, there may be some other things 
to think about, because we do not have Title 20.
    Ms. Bovbjerg. What do you think from the State perspective, 
Debbie?
    Ms. Armstrong. I think to see the initiatives that were 
talked about would be wonderful. I think it would be well-
received. I am particularly intrigued with the thought of the 
Medicaid involvement, not just from a funding perspective, but 
I think that would contribute to the overall quality of care 
and decrease of the abuses that we see in the system. Because 
in New Mexico, 70 to 80 percent of the nursing home beds are 
Medicaid.
    Mr. Johns. Well, the tension that we have is the tension 
between your invitation to do that which is right and to make 
the law within our States complicit compared to what Nancy is 
saying, which is to get them to do it if we have to use 
language that promotes enforcement, then, the whole view of a 
federalist mandate on the States, and the States saying--the 
States will come back in today's world with the argument of 
sovereign immunity; you are not going to tell us what to do, 
and you did not carefully pin down in the language of your 
Federal law that this is a mandate to which we have to 
ascribe--the tensions are very clear.
    If we can create a forum in which we talk together about 
how we become more proactive about this, and we invite the 
States to join with us to begin a uniform laws movement, if we 
did it from a perspective that says, ``Well, let us look at it 
in a way in which those who know well how to write the law have 
designed uniform language, then we go to the ABA, ALI uniform 
laws premise and try to construct a way by which that language 
would then be lobbied to the States to invite their agreement; 
at least we have dialog occurring.''
    Above all, I believe that what this forum does for us is 
to, No. 1, make real the documentation and the investigation 
that you and your colleagues have done in the GAO, and then, 
No. 2, give us a way to say let us talk and go out and invite 
the talking. Hopefully, our conference in November will just 
spur that along a bit.
    I will note for the record that we have given Senator Craig 
several formal invitations to be our keynote speaker and that 
we are going to have representatives of the GAO there, because 
that dialog, we believe is so significant.
    Ms. Bovbjerg. Well, I appreciate everything that you have 
brought to the table today, literally. I want to thank the 
Senate Aging Committee and Senator Craig for inviting us all 
today. I want to thank those of you who stuck with us all 
afternoon for coming. I especially want to thank Debbie and 
Robert for coming, really, at quite the last minute, I 
understand. I really appreciate that, and I think we have laid 
out a problem that is only going to become more acute and that 
there is, in fact, a Federal role in working with States and 
courts to try to address some of these issues.
    So thank you, everyone, very much.
    [Whereupon, at 3:43 p.m., the forum concluded.]


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