[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
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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
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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.]
A P P E N D I X
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