[Senate Hearing 109-753]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 109-753
 
     EXPLOITATION OF SENIORS: AMERICA'S AILING GUARDIANSHIP SYSTEM

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

                                HEARING

                               before the

                       SPECIAL COMMITTEE ON AGING
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                             WASHINGTON, DC

                               __________

                           SEPTEMBER 7, 2006

                               __________

                           Serial No. 109-30

         Printed for the use of the Special Committee on Aging


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                       SPECIAL COMMITTEE ON AGING

                     GORDON SMITH, Oregon, Chairman
RICHARD SHELBY, Alabama              HERB KOHL, Wisconsin
SUSAN COLLINS, Maine                 JAMES M. JEFFORDS, Vermont
JAMES M. TALENT, Missouri            RON WYDEN, Oregon
ELIZABETH DOLE, North Carolina       BLANCHE L. LINCOLN, Arkansas
MEL MARTINEZ, Florida                EVAN BAYH, Indiana
LARRY E. CRAIG, Idaho                THOMAS R. CARPER, Delaware
RICK SANTORUM, Pennsylvania          BILL NELSON, Florida
CONRAD BURNS, Montana                HILLARY RODHAM CLINTON, New York
LAMAR ALEXANDER, Tennessee           KEN SALAZAR, Colorado
JIM DEMINT, South Carolina
                    Catherine Finley, Staff Director
               Julie Cohen, Ranking Member Staff Director

                                  (ii)

  


                            C O N T E N T S

                              ----------                              
                                                                   Page
Opening Statement of Senator Gordon Smith........................     1
Statement of Senator Jim Talent..................................    16
Statement of Senator Ken Salazar.................................    41

                           Panel of Witnesses

Ira Salzman, New York, NY........................................     3
Carol J. Scott, Missouri Long-Term Care ombudsman, Jefferson 
  City, MO.......................................................    16
Terry W. Hammond, executive director, National Guardianship 
  Association, El Paso, TX.......................................    30
Barbara B. Bovbjerg, director, Education, Workforce and Income 
  Security, U.S. Government Accountability Office, Washington, DC    47
Hon. Mel Grossman, administrative judge, Florida 17h Judicial 
  Circuit Court, Fort Lauderdale, FL.............................    66

                                APPENDIX

Written Testimony of Ellen J. Henningsen, J.D., Coalition of 
  Wisconsin Aging Groups.........................................    73
Prepared Statement of Elaine Renoire.............................    81

                                 (iii)

  

 
     EXPLOITATION OF SENIORS: AMERICA'S AILING GUARDIANSHIP SYSTEM

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



                      THURSDAY, SEPTEMBER 7, 2006

                                       U.S. Senate,
                                Special Committee on Aging,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10 a.m., in room 
SD-562, Dirksen Senate Office Building, Hon. Gordon H. Smith, 
Chairman of the Committee, presiding.
    Present: Senators Smith, Burns, Talent, Carper and Salazar.

     OPENING STATEMENT OF SENATOR GORDON H. SMITH, CHAIRMAN

    The Chairman. Good morning, ladies and gentlemen. The hour 
of 10 has arrived, so take your seats, be at home. We 
appreciate each of you taking the time to join us in what I 
believe is a topic that needs both light and heat. We have 
entitled this hearing ``Exploitation of Seniors: America's 
Ailing Guardianship System.''
    I recently learned of an interstate guardianship dispute 
that has tied up the courts, conservators, attorneys, 
hospitals, police, ambulances, nursing homes, adult protective 
services, family and friends in three different States, all 
because a native New Yorker fell ill while at the Connecticut 
home of his daughter. The ensuing year-long battle over his 
guardianship, which continues today, has cost thousands of 
dollars, torn apart the family, drained taxpayer dollars and 
administrative resources, and illustrates how ill-equipped the 
courts are to handle such disputes.
    Regrettably, this situation is far from unique. Horror 
stories abound in the press regarding the plundering of assets, 
physical neglect, and the indignity with which elderly wards 
have been treated by their guardians. As we have learned from 
the highly publicized Brooke Astor case, no matter your age, 
finances or social status, none of us in this room today are 
beyond potential abuse or neglect and any one of us at any time 
could become incapacitated and in need of assistance.
    We are here today because, sadly, after 20 years of 
congressional hearings on elder abuse, most State guardianship 
systems are still failing vulnerable seniors. Every State in 
the country requires a license to practice medicine, law, or 
even to drive. Unfortunately, the same cannot be said for 
guardians, who in most States remain largely unregulated and 
unsupervised.
    According to a recent L.A. Times series, there are 
approximately 500 professional conservators in California 
overseeing more than $1.5 billion in assets, and these 
conservators are subject to less regulation and oversight than 
a hairdresser or a guide dog trainer.
    Although States have made recent legislative strides to 
reform guardianship laws and ensure better oversight, experts 
feel there has been little progress when it comes to actual 
court practice. What has become clear is that Federal 
leadership is needed.
    Now, Senator Kohl, who is tied up in another hearing--he is 
our ranking member, but he and I, along with members of the 
Aging Committee, are cosponsors of the Elder Justice Act, a 
critical and necessary step in guardianship reform. The Act 
funds public education, data collection, and training for law 
enforcement and elder care professionals. So I urge my Senate 
colleagues and those in the House to very quickly pass this 
important legislation.
    However, States must also step forward and provide courts 
with the necessary staff and resources. Family law, after all, 
is primarily a State law issue. We are not trying to circumvent 
them or overtake them or preempt them, but clearly we need the 
States to do more when it comes to this very important area. 
Individuals also have a responsibility. They must plan ahead to 
ensure that someone they trust is in control of their financial 
and personal decisionmaking, should help be needed.
    This morning, we will hear from guardianship experts, 
including Ira Salzman, an attorney in the Brooke Astor case; a 
long-term care ombudsman, and also a probate judge has joined 
us, and the National Guardianship Association. I hope we all 
leave here today with a better understanding of the protections 
needed by the elderly to grow old simply, with dignity, while 
also keeping their fundamental freedoms intact.
    So let me introduce our witnesses: first, Mr. Ira Salzman. 
Welcome, sir. He is an elder law attorney in New York City and 
currently represents Philip Marshall, the grandson of Brooke 
Astor. Mr. Salzman will share with us the expertise he has 
gained in representing clients with cases involving 
guardianships and conservatorships.
    He will be followed by Ms. Barbara Bovbjerg, who is the 
director of Education, Workforce, and Income Security Issues 
for the U.S. Government Accountability Office. She will provide 
an update on the status of guardianships and conservatorships 
in the United States.
    Then we will hear from Mr. Terry Hammond, who is the 
executive director of the National Guardianship Association. 
Mr. Hammond's testimony will offer input and insight into the 
current state of guardianship in America, as well as the NGA's 
recommendations for guardianship standards.
    We will then hear from the Honorable Judge Mel Grossman. He 
is the administrative judge for the Florida 17th Judicial 
Circuit Court's Probate Division. In 2004, Judge Grossman's 
circuit court was recognized as one of only four exemplary 
guardianship programs in the Nation by the U.S. Government 
Accountability Office. Judge Grossman will offer this Committee 
insight from his years of court experience with guardianships.
    Finally, and certainly not least, Carol Scott, who is the 
Missouri Long-Term Care State Ombudsman, and has been so since 
1989. From 2000 to 2004, Ms. Scott served as the president of 
the National Association of Long-Term Care Ombudsman Programs.
    Carol, you may wonder why you are seated in the middle and 
I read your name last. Senator Talent is between two committee 
meetings and wants very much to be here to hear your testimony. 
So when he arrives, which we estimate at about 10:20, we will 
just go to you next in line. So if everybody is OK with that, 
we will proceed in that order.
    So, Ira Salzman, the mike is yours.

             STATEMENT OF IRA SALZMAN, NEW YORK, NY

    Mr. Salzman. Thank you, Senator, and thank you very much 
for the opportunity to testify before you.
    As you said, I am the attorney for Philip Marshall, who is 
the grandson of Brooke Astor, and who has brought the petition 
to have a guardian appointed for his grandmother. But I think 
in terms of understanding where my testimony is coming from 
this morning, I think it is also important for you to know that 
I also represent a number of not-for-profit corporations in New 
York City that serve as guardian where there is no one else 
available to serve. These are publicly funded not-for-profits 
and are essentially New York City's equivalent of a public 
guardian program.
    Now, a lot of people have read a lot of the allegations 
that have been made in the Brooke Astor case in the newspapers, 
and many, many people have walked up to me and told me they 
have found these allegations to be shocking. I believe that the 
sense of outrage that this case has engendered is fully 
justified.
    But having said that, I think there is a really important 
point that needs to be made, and you made it in your opening 
statement, Senator. The Astor case is not unique. In the Astor 
case, my client is alleging that a power of attorney has been 
misused to misappropriate money. My firm has been involved in a 
lot of cases like this. This is not uncommon.
    Similarly, in the Astor case it is alleged that money has 
been misspent or not spent for needed care. Again, this is not 
an uncommon situation. My firm has been involved in a lot of 
cases where this has happened. In the Astor case, we were lucky 
enough to be able to document the allegations of abuse so well 
that the court in New York was able to determine that the 
immediate appointment of temporary guardians was necessary.
    There is an important lesson from this. Guardianship can be 
a powerful weapon in the battle to stop elder abuse, and when 
we talk about the regulation of guardianship, it is important 
not to lose track of the fact that it is an important tool to 
stop elder abuse, to prevent financial exploitation, to assist 
people who otherwise cannot manage for themselves.
    The goal should be regulation with an appropriate balance. 
In terms of looking at that, I think one has to look at this 
also from not only the point of view of the regulator, but from 
the point of view of the guardian because the truth of the 
matter is being a guardian is hard work for which you are 
rarely adequately compensated. Supervising the care of an 
incapacitated person can be very time-consuming.
    As I was outside, in front of this building this morning, 
my cell phone rang and it turned out that my mother-in-law's 
Lifeline alert system had gone off and it was the Lifeline 
people calling me to tell me there might be something wrong 
with my mother-in-law. Now, it turned everything was fine. 
There was a glitch in the phone system, but if you are a 
guardian, you may have a whole number of these systems. There 
may be a lot of Lifeline calls that you are going to get. If 
you get this kind of thing, you have stop what you are doing--
it doesn't matter what it is--and you have to fix it. It takes 
an extraordinary kind of person to be willing to do this and to 
do it right.
    You are not only managing personal affairs; you are also 
managing money, and you have to manage money with the knowledge 
that the court may come to you after the fact and says 
challenge you did, which means you have to be unafraid of being 
second-guessed by the court.
    Being a guardian can be difficult particularly in abuse 
cases because sometimes abused elderly people oppose the 
elimination of the abuser from their lives. Therefore, those 
who want to intercede in abuse cases frequently have an 
extraordinarily difficult decision to make. What is going to 
cause more harm: allowing the abuse to continue or separating 
the incapacitated person who is being abused from his or her 
loved one?
    If there is no one available who is willing to serve as a 
guardian without receiving the fair market value of the 
services that need to be rendered, then even the simplest of 
guardian cases can be expensive. Under New York law, for 
example, a guardian has to visit a ward at least four times a 
year.
    Let's assume that a person is in a residential care 
facility and in stable condition. This is the simplest of 
simple care plans. Let's assume a visit takes 3 hours, 
including transportation. Let's assume further that the 
guardian only has to spend an hour a month paying bills and 
filing insurance claims, and another 3 hours a year filing 
reports for the courts. That means at a minimum, in the 
simplest of cases, you are talking about 27 hours a year, and 
that assumes nothing has gone wrong.
    If someone is living at home, then the amount of time that 
a guardian has to spend is always going to be substantially 
more than that because especially when you are using a 
guardianship to manage a care plan at home, what you are doing 
is you are buying family, and family doesn't come cheap.
    This is a particular problem for lower-middle-class and 
poor people who are incapacitated and therefore need guardians, 
because guardianship for the lower middle class and the poor 
can be critical in order to prevent homelessness or unnecessary 
institutionalization. Guardianship, as time-consuming and as 
expensive as it may be, is often a crucial part of the equation 
that allows people to live out their lives at home.
    In the context of what I have said so far, I would like to 
make six points. First, guardianship is a really important tool 
that can be used to implement a care plan for incapacitated 
persons, stop elder abuse, and prevent self-neglect.
    Second, being a guardian and doing it right is time-
consuming, hard work. Third, if there is family involved and 
enough money to pay for the care plan, plus legal and 
accounting expenses, a guardianship can work well.
    Fourth, even committed and caring people can be scared off 
by having to be involved in a legal system and being required 
to file what appear to them to be complicated reports when 
there isn't enough money to pay for legal and accounting 
assistance and the guardian can't afford to pay for this 
assistance with his or her own funds.
    Five, oversight is important, but oversight of guardians is 
expensive. The more oversight you have, the more complex the 
system becomes. By expensive, I don't just mean the cost of the 
people doing the oversight; I also mean the cost of the 
professionals necessary to help the guardians deal with the 
oversight. People don't like to go to court for a compliance 
conference in front of a judge without a lawyer. This is not an 
unreasonable position. How does that lawyer get paid?
    Now, I am certainly not saying there shouldn't be 
oversight. What I am saying is the system needs to be user-
friendly. Oversight should not just mean supervision; it should 
also mean technical assistance to help guardians so they don't 
trouble with the people doing the oversight.
    Last, as baby-boomers age and find that their children do 
not live near them, there is going to be an increased need for 
public guardianship. Poor people needs guardians, too, and as I 
said, guardianship done well is expensive. But in many cases, 
public guardianship will be the only alternative for some 
people if society wants to avoid having them become homeless or 
being unnecessarily institutionalized.
    Thank you very much for the opportunity to testify before 
you.
    The Chairman. Thank you very much, Ira. As I listen to your 
testimony and I consider this whole category of guardianship 
and I think of the baby-boom generation that is going to double 
the size of the elder population in the next few years, I 
wonder if there isn't some level of increased 
professionalization that ought to take place in the whole 
category of being a guardian.
    We don't set fees in government for lawyers, except as to 
public defense and things like that, but I am just troubled by 
anybody can be a guardian. There is no standard, apparently. 
There is no schooling, there is no level of qualification that 
can prepare a guardian for dealing with all the things you have 
just cited.
    In your view, are there sufficient standards for 
guardianship in this country?
    Mr. Salzman. Well, I can only speak for New York, and in 
New York guardians are required to go through training before 
they are permitted to serve. I actually chair one of the 
training programs in New York.
    The Chairman. So New York is, but how about other States? 
Through your own knowledge, do they have such systems?
    Mr. Salzman. I don't know, but I think there is a further 
point, if I can make it, Senator.
    The Chairman. Yes.
    Mr. Salzman. You first have to distinguish between lay 
guardians and professional guardians. I think that there has to 
be a bias in the system in favor of letting family members take 
care of their own, and the goal there should have them not only 
go through training, but have available technical assistance 
for them.
    The Chairman. For lay guardians?
    Mr. Salzman. For lay guardians, for family members.
    The Chairman. Does that exist adequately, in your view?
    Mr. Salzman. No, it does not. We have one experimental 
program going on in Brooklyn, which I understand is going very 
well, but it is specially funded and it is only in Brooklyn.
    I think that in New York, we have two kinds of professional 
guardians. We have not-for-profits who serve as community 
guardian programs or their equivalent. They are not licensed, 
per se, but they serve under contract with government agencies 
and are audited by the government agencies and supervised 
directly by the government agencies as part of the contract 
process.
    In addition, the courts will appoint lawyers who serve as 
guardians from time to time or social workers who will serve as 
guardians from time to time. They are required to go through 6 
hours of training in order to serve. In addition, they are 
required to file accounts which are reviewed annually.
    The Chairman. Do they take an examination? Do they get a 
license?
    Mr. Salzman. There is no examination, there is no license.
    The Chairman. You spoke about how costly it is to be a 
guardian. Whether you are a professional or a lay guardian, 
there are fiduciary responsibilities attendant to that 
position, and taking time costs money. Yet, I am wondering if 
the lack of standards doesn't incentivize some of the financial 
malfeasance that seems to be reported with such regularity; 
that someone might feel justified in raiding the corpus of an 
elder's estate feeling like, well, they are entitled to it. 
That creates all kinds of litigation, I am sure, because some 
would regard it as excessive or in some cases even criminal.
    Mr. Salzman. I have been involved in some of these cases, 
and you look at the financial records after the fact and you 
can see all kinds of different stories that pop up. I remember 
one of the first ones I saw was there was a guardian who was 
short of money. He took $200 out and then he put it back, and 
you could see it in the records; he put it back. Then a month 
later, he was short and he took another $300 and he put it 
back, and he repeated this half a dozen times. Then there was 
the first time that he didn't have the money and he couldn't 
put it back.
    When people run into hard times, then the great quote from 
``Lady Windermere's Fan'' becomes applicable: ``I can resist 
anything except temptation.'' So, certainly, you want guardians 
who are financially stable. People get into trouble and they 
look at this pot of money and say, ``Oh, it is only going to be 
a loan, no one is ever going to notice, I will take it and I 
will put it back.'' That is a common story, that is a common 
story.
    There are some people who are just plain dishonest and do 
it immediately. There are lot of people who are just sloppy. 
There are a lot of people who think, well, it is just a little 
bit, nobody is going to notice. I just finished an audit of a 
guardianship account where they just ran up credit card bills 
to go out to dinner. There was a few million dollars involved 
and they ran up, over 3 years, $40, $50,000 worth of really odd 
credit card bills. They figure, you know, I am doing the work, 
it is really for her benefit, we are talking about here. It 
would be deductible in the income tax, so I am going to take it 
under the same rule. There are varying levels of venality.
    The Chairman. Should it be more formalized either in 
regulation or statute at the State level?
    Mr. Salzman. Well, I think the laws are pretty clear. The 
issue is what do people do about it.
    The Chairman. People are afraid to break the law. I mean, 
you are right.
    Mr. Salzman. Yes.
    The Chairman. But I guess I am just wondering if, in your 
view, in your experience, a lot of this goes away if someone 
does sufficient estate planning and provides for reasonable 
compensation for a guardian.
    Mr. Salzman. Yes.
    The Chairman. Yet a lot of people die intestate with no 
planning. You speak of the poor who need guardianship, just as 
someone who is wealthy, and I am just wondering if the 
difference between someone who is prepared--I mean, I have to 
believe Brooke Astor was prepared, and I don't want to ask you 
any details on a case. I know you have a responsibility there 
not to do that.
    But it does seem to me that such a range of financial 
abilities, such a range of financial planning for one's later 
years--maybe there ought to be some general sorts of statutes 
in every State, and perhaps even the Federal Government, to 
give some guidance, some legal structure to this relationship.
    Mr. Salzman. I think that in terms of cases where there are 
assets, when there is money around, there is always going to be 
somebody there who is going to complain. Ultimately it is going 
to pop up because ultimately the heirs are going to take a look 
at it and they are going to say what happened here.
    My concern in terms of guardianship and in terms of where 
guardianship is going down the road is what happens with the 
people who don't have money and still need guardians. My 
clients have had extraordinary successes in keeping people home 
simply by virtue of the fact that the guardianship was in place 
and homes were preserved.
    What I would hope that the Federal Government would do 
would be to look toward establishing best practices for 
guardianships, in general, and funding for public guardianship, 
in particular. I guess that leads me to the Elder Justice Act, 
which I think is an important first step by the Federal 
Government--should it pass, would be an important first step by 
the Federal Government to establish a national platform for the 
discussion of these issues, to establish funding for best 
practices, to deal with the data collection issues, because one 
of the things that I believe was pointed out in the GAO report 
is that we are really not sure as to what the nature and extent 
of the abuse is.
    I don't think we want to regulate to the point where we 
squeeze family members out of the system and we don't want to 
regulate to the point where doing the job becomes prohibitively 
expensive.
    The Chairman. Those three things you mention--data 
collection--well, it escapes me the other points you just made, 
but they are on the record. You are familiar with the Elder 
Justice Act?
    Mr. Salzman. I am.
    The Chairman. Do you think we have sufficiently addressed 
those concerns?
    Mr. Salzman. I do.
    The Chairman. So you would suggest we get it through?
    Mr. Salzman. Without question, without question.
    The Chairman. But you would add dollars for best practices 
to incentivize States?
    Mr. Salzman. Absolutely.
    The Chairman. Well, thank you very, very much. It has been 
very helpful to have your comments on the record.
    [The prepared statement of Mr. Salzman follows:]

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    The Chairman. I see Senator Talent has just arrived. So as 
I mentioned in the beginning, what we will do is jump now to 
Carol Scott, who is from Missouri, and depending on where you 
are from in Missouri, you might say Missoura.
    How do you say it, Senator Talent?
    Senator Talent. Well, that is a question I never answer. 
[Laughter.]
    Either pronunciation is commonly used by fine Missourians 
all over our State. Am I recognized for my statement?
    The Chairman. Yes, you are recognized for your statement 
and then we will go to your witness.

            OPENING STATEMENT OF SENATOR JIM TALENT

    Senator Talent. Speaking of fine Missourians, Carol Scott 
is with us today. I want to thank you first, Mr. Chairman, for 
calling this hearing. There is just no question that we as a 
society need to commit ourselves, and I think we are committed, 
to helping our most vulnerable citizens. This certainly 
includes seniors who are subject to physical or financial 
threats, in some cases from those who ought to be close to 
them, who ought to be looking out the most for them. 
Guardianship is a great legal tool. It has benefited many, many 
people. It is an important tool, but if it is not carefully 
used and administered, it can hurt people as well.
    So I am glad you are holding this hearing and I am pleased 
that my old friend, Carol, is with us today. Carol Scott and I 
met when I served in the Missouri legislature. She has served 
as the Missouri Long-Term Care Ombudsman for almost 20 years. 
She is the past president of the National Association of Long-
Term Care Ombudsman Programs. Her service also includes the 
Medicare Fraud Prevention Program and the Missouri End-of-Life 
Coalition.
    I will just say, Mr. Chairman, she really knows her stuff, 
so you picked a good witness. I am looking forward to hearing 
her testimony and the testimony of the other witnesses as well, 
and their recommendations about what we can do to help educate 
seniors and their communities about guardianship and how to use 
it in the right way to preserve seniors' physical and financial 
integrity.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Talent.
    Carol Scott.

  STATEMENT OF CAROL J. SCOTT, MISSOURI STATE LONG-TERM CARE 
                 OMBUDSMAN, JEFFERSON CITY, MO

    Ms. Scott. Senator Smith, Senator Talent, good morning. In 
Jenny Joseph's poem ``Warning,'' she writes ``When I am an old 
woman, I shall wear purple, with a red hat which doesn't go and 
doesn't suit me.'' At the end, she ends with, ``But maybe I 
ought to start now so people who know me are not too shocked 
and surprised when I am suddenly old and start to wear 
purple.'' It seems that there is a never-ending battle to 
debunk stereotypic notions of older and disabled adults. Often, 
the labeling of an individual is tantamount to presumption of 
the need for guardianship. Finding yourself under a court-
appointed guardian can happen quickly. There was a gentlemen in 
Missouri who was driving his pickup down the street and, within 
2 weeks, was in a nursing home with a guardian. Within 6 weeks, 
all of his belongings were thrown away and all his real estate 
was sold. Within that time, he got better, and with the help of 
the ombudsman's program, the nursing home and the physician he 
asked the court to overturn his guardianship and the request 
was denied.
    In another Missouri case, the guardian of seven residents 
of one nursing home moved these individuals because the 
guardian was mad that the nursing home was requesting payment. 
One of these residents had lived in that nursing home for over 
25 years.
    From across the country, ombudsman stories remain the same 
that the system is not working as it should in all cases. It is 
far too easy to take advantage of people. There is a lack of 
training and there are few standards in place to protect these 
vulnerable people.
    In Ohio, the ombudsman learned that an agency planned to 
move all their wards from their nursing home without even 
talking to them. The ombudsman visited and notified the court, 
but they were moved anyway. One resident died after that move. 
The agency then wrote a letter to the new nursing facility 
telling them not to allow the ombudsman to visit their 
residents without the guardian being present. Well, this is 
against Federal law, so the ombudsman program is not complying 
with that request.
    In New Jersey, a case of an attorney who was appointed 
guardian. The guardian applied for Medicaid when the ward had 
$49,000, or should have had $49,000 in the bank. This case is 
now under investigation. In Michigan, two cases where the wards 
were placed in locked Alzheimer's units in the nursing home. 
Neither had dementia and in both cases the facility and 
physicians felt the individuals did not need a guardian.
    While family members and friends assume the role of 
guardian or conservator, in Missouri there are no training 
requirements and only a yearly accounting of finances which is 
sent to the local probate court. Low-income family members face 
difficulties because of the cost of establishing a 
guardianship. In these situations, family members who are 
willing to be guardians should be encouraged, not discouraged 
and punished by the cost of becoming a guardian.
    The Chairman. Should they be compensated, Carol?
    Ms. Scott. That is a hard question. I don't know. I don't 
know where the money would come from.
    The Chairman. I just ask that question because it leads 
back to this whole incentive for abuse. I am sorry to interrupt 
you.
    Ms. Scott. No, that is OK. That is a tough question because 
I mean as Mr. Salzman says, there is a lot of time and energy 
put in. So I am not sure that paying is the right thing, but 
some incentive--in Missouri, it costs about $1,000 to get a 
guardianship established and that is what the beginning issue 
is, is just the cost of doing it.
    There are many best practices across the States and I think 
States need to look at and make appropriate changes. As far as 
the role of the Federal Government, I have four ideas.
    One is there is a need for coordination between the Social 
Security Administration, the VA representative payment programs 
and State courts handling guardianships. This issue is 
described in the 2004 GAO report. In the Older Americans Act, 
there is a need for beefing up the legal services program. In 
many States, this program is floundering due to lack of 
attention and funding.
    The National Conference of Commissioners on Uniform State 
Laws has convened a committee to address interstate issues. It 
would be great if Congress could somehow promote the 
portability of guardianships created in other States.
    Fourth, the Federal Government could conduct a study of the 
connection between guardianship and the inappropriate 
institutionalization of individuals in nursing homes. When 
guardianship works well, it is fine to have control at the 
local probate court level. When it is not working, there is a 
need for some other type of oversight. There may be a need for 
someone to have oversight to review the financial dealings, the 
living arrangements of the ward, and other quality-of-life 
issues. Training, education and oversight are solutions that 
can happen, but will take time and money.
    In addition to my testimony, I have submitted some other 
ideas for recommendations for actions. I look forward to going 
back to my State, and I hope everyone in this room does to 
their own States, to see if we can't make some changes.
    Thank you very much.
    The Chairman. Thank you, Carol. This question is not a 
criticism of Missouri, but just a question. Is the State 
legislature there taking this issue up?
    Ms. Scott. We are identifying State legislators that are 
very interested in this case. We have a situation right now 
where in Missouri we have public administrators that are 
elected within each county, and we currently have in the news 
one of those that is under investigation for possible financial 
dealings. I think that case will result in there being a lot of 
interest in this topic in the next legislative session.
    The Chairman. In Missouri, do public guardians get 
training? Are they licensed?
    Ms. Scott. No, they are not licensed. They do have a 
requirement to receive training, but it is less than 30 hours. 
I mean, they have written it themselves and so it is 
information that is kind of passed on. It is not any kind of a 
certified training.
    The Chairman. How about private guardians? If the public 
ones don't have any more than that, the private guardians have 
nothing?
    Ms. Scott. It depends on the court as to how much 
information is even given on what the job is. From court to 
court, it is very much a good old--what is that called, the 
buddy system, so depending on the county and the judge on how 
much oversight is given. It could be that the paperwork is sent 
in and it is just filed in a filing cabinet and not ever even 
reviewed.
    Senator Talent. Mr. Chairman, can I ask----
    The Chairman. Yes, Senator Talent.
    Senator Talent. Thank you, Mr. Chairman, because as is 
often the case, as you know, we have a lot of different things 
going on at the same time and I am not going to be able to stay 
for the whole thing.
    I wanted to ask Carol--and with your permission, Mr. 
Chairman, if anybody else wants to chime in. To me, the 
guardian is one officer who is supposed to be looking out for 
seniors. The other person who is always supposed to be doing 
this is the judge.
    Now, in my limited experience, because I never practiced in 
this field, judges are not just supposed to accept 
representations that are made to them when somebody seeks 
guardianship. I mean, you are supposed to ask questions 
particularly if the person has no attorney representing them, 
if it is an ex parte proceeding.
    Is it your experience that people will falsify, say, 
affidavits to judges or testimony to judges about the mental 
state or condition of the senior in order to get guardianship 
rights? I am reading your anecdotes and I know this happens 
where people are treated as if they have Alzheimer's when they 
don't. Well, this is a factual question. I mean, you can't just 
go in to a judge and say, you know, my aunt has Alzheimer's, 
when she doesn't.
    Is anybody holding these judges accountable for their 
decisions, or what is fouling up at this point?
    Ms. Scott. Somebody else here might be able to answer.
    Senator Talent. I notice Mr. Grossman reacting to my 
question, so if he would like to add something.
    Ms. Scott. I will tell you that my experience in Missouri 
is, again, in my counties there is that good old buddy system. 
We see instances where the ward is not even notified that there 
is a court hearing. We see instances where the family member is 
not even notified that this is happening. We see where the 
judge and the guardian, whether it be public or private--I 
don't know what the reason is.
    The gentleman that was driving down the street and ended 
up--the only explanation we have is that he happened to own 
some lake property that some people wanted to get a hold of to 
do a development, and unfortunately this was a 70-some-year-old 
sailor who talked like he was still out on the sea and they 
absolutely took advantage of him. I have no understanding why 
the judge didn't do something different, other than didn't want 
to rock the boat, didn't look at it.
    We actually did some training with The Missouri Bar to get 
the attorneys to do something, because we have attorneys who 
aren't even visiting their wards before they represent them in 
court.
    Senator Talent. Does anybody else want to comment on that?
    Judge Grossman. If I could respond?
    The Chairman. Please, yes, go ahead.
    Judge Grossman. Florida is a little different because 
Florida for about 40 years has seen an influx of retirees whose 
children are up north, and a lot of them in Mr. Salzman's neck 
of the woods, and so we do have some history.
    In 1989, the Florida legislature enacted some comprehensive 
statutes on guardianship, and then just this past session, as a 
result of recommendations from the State legislature, created a 
guardianship task force, on which I served representing the 
circuit court of the State. We had a bunch of recommendations 
and they were successfully passed this last session.
    There is also, Senator Talent, a line of cases principally 
out of Maryland that takes the position--and it is a position I 
am comfortable with--that says that the person that we call a 
guardian is not really the guardian. Ultimately, the guardian 
is the judge and the court, and the person we appoint as a 
guardian is, in fact, acting as an agent for the court.
    We have in my circuit especially--and there are 
disagreements even among my colleagues in Florida, but every 
time there is a petition for incapacity in Florida, the first 
thing that happens is I enter an order appointing an attorney 
to represent that alleged incapacitated person and I appoint a 
guardianship examining committee composed of three people who 
go out and make a report back, and then there is an evidentiary 
hearing.
    Ms. Scott, I will be happy to give you the cites that are 
here so that you can put some of those together with the State 
of Missouri. But once you get past the appointment process, I 
have to tell you all that we have a requirement that 
professional guardians, and if they are corporate guardians, 
that any employee that has a fiduciary duty to a ward have a 
background investigation done. In my circuit, we do it 
annually. It has to be done every 2 years under the statute, 
and we check for criminal, we check for credit, and we check 
with our Department of Children and Families for any reports of 
exploitation, abuse, or neglect before anybody is appointed.
    Once they are appointed, there are educational 
requirements. We require 8 hours for family, generally, in 
terms of the elderly for a family member. Our bar association 
puts those on. For professionals, they have to be registered 
with the statewide public guardianship office, and if they are 
not on the registry, they can't be appointed and they can't get 
paid.
    Then we have codified in State legislative provisions--we 
have the ability to appoint court monitors. In my circuit and 
in one other circuit, we have actually an in-house capability. 
In my circuit, we have a full-time in-house court monitor with 
a clerical staff, and we have probably the most robust set-up 
of any circuit in Florida. If there is any indication that 
comes to a judge or a magistrate that there is something that 
is not quite right, or even if we get a letter in the mail and 
even if it is anonymous, the first thing we will do is we will 
send out that in-house court monitor to check.
    Now, 90 percent of the time----
    Senator Talent. No problem.
    Judge Grossman [continuing]. There is no problem, but it is 
that troublesome 10 percent. So we decided, after some negative 
newspaper series--nothing gets the attention of the judiciary 
more than a 5-day mini-series in a major newspaper in the area 
that appears at the top of 1A, and above the fold, as well, are 
the recommendations that say Broward judges do a poor job of 
oversight. So we took that very seriously and basically we 
default to worst-case scenario in terms of our operating 
procedures. Now, does that cost money? Mr. Salzman, you are 
absolutely right; it costs money, but we have been fortunate 
enough to get some resources.
    The other thing, and it is really not directly related to 
this, but let me just touch on it anyway is we have an Office 
of Public Guardian. It is modestly funded, but what we did was 
I created a public-private partnership with Barry University, 
which is in south Florida, which has an excellent school of 
social work. Essentially, the university provides for our 
public guardian operation. So you don't have any education with 
that, but I do think education and I do think that there needs 
to be some funding.
    Senator Talent. Thank you, Mr. Grossman. Can I just make a 
final point for the record?
    The Chairman. Of course.
    Senator Talent. I am glad you mentioned, Mr. Grossman, and 
I am sure you probably did also, Mr. Chairman, that there are 
thousands and thousands of devoted children and relatives out 
there caring everyday. I have staff members in this situation 
with an aged relative, and we should say that. I mean, the love 
that you see in this kind of a setting is just--you just never 
see it repeated.
    We do have these abuses, and I congratulate you and Senator 
Kohl because this is one of the things this Committee is for. I 
suspect that if the Committee just issued a paper with some 
recommendations to some State supreme courts and some county 
public administrators, that publicity alone probably would 
light a fire under people to do what they are already supposed 
to be doing a little bit better. I would suggest that the 
Chairman consider that.
    The Chairman. I am encouraged, Judge. I forget the Justice 
of the Supreme Court that made the comment in one of his 
opinions that judges read newspapers, too.
    Senator Talent. Not that we ever do, of course.
    The Chairman. There is nothing like the court of public 
opinion to make modifications.
    [The prepared statement of Ms. Scott follows:]

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    The Chairman. We are also joined by Senator Burns, of 
Montana. Senator, if you have an opening statement or a 
question of any of the witnesses----
    Senator Burns. Well, no, and I just want to thank you. Just 
listening to this discussion this morning, whenever you appoint 
a guardian, do they also have the power of attorney?
    Judge Grossman. In Florida, there are different degrees in 
terms of guardianship. We have, pursuant to statute, a laundry 
list of rights and powers that an individual is free to enjoy 
in our society and which ones can be taken away and which can 
be delegated to a guardian and which cannot be delegated to a 
guardian.
    If you are talking about a durable power of attorney for 
financial things, a durable power of attorney, if it did exist, 
would cease in Florida when a guardian is appointed and the 
guardian would be taking over the financial aspects of the 
ward. I am not sure that that answers your question.
    Senator Burns. Is that unique to Florida or are there other 
States----
    Judge Grossman. My understanding is it is not necessarily 
unique to Florida, but again more than any other State we have 
been out there a whole lot longer, although you are going to 
see the same situations as they sweep across the Sun Belt and 
this is just the beginning.
    One of the problems with this particular area is that, No. 
1, nobody likes to face their own mortality. No child likes to 
recognize the fact that their parents are in need of 
assistance, and no parent relishes the idea of any kind of even 
limited role reversal. So this becomes a really difficult deal 
for families to work out.
    I agree with what Senator Talent said and, Senator Smith, 
what you said, as well as Mr. Salzman. I mean, most families 
really care about their families and really do everything they 
can to help them. Most professional guardians do the same way. 
But in answer specifically to your question about durable power 
of attorney, that would cease in Florida when a guardian was 
appointed.
    Senator Burns. Do you have the attorneys--do they sort of 
pull back on that?
    Judge Grossman. Well, you see, another difference between 
Missouri and many other States is every guardian, unless they 
are an attorney, has to be represented by an attorney. 
Originally, that was designed as best I can tell to provide a 
backup system for the court. For a good 10 years now, the 
general policy of the State of Florida has been that while the 
guardian is the representative, the attorney who has been 
selected by the guardian to represent the guardian has also a 
third-party beneficiary relationship with the ward, which 
brings on certain obligations.
    In July, the Alaska Supreme Court just ruled in a 
guardianship case where the attorney knew or should have known 
that something wrong was happening as a result of what the 
guardian was doing with the ward's assets that the attorney was 
potentially liable for the losses and the injuries incurred by 
the ward by virtue of his or her not stepping forward and 
essentially blowing the whistle.
    Senator Burns. Well, I can see where there would be a 
little conflict there. I have been through this with my 
parents. Of course, the toughest thing in the whole family deal 
is when you take the car keys away from them. That is the 
toughest part of managing your parents, so to speak, when 
everybody knows they shouldn't be driving. Now, once you make 
it over that hill, everything else falls in place, you know, 
but the toughest part is getting those car keys.
    Judge Grossman. You are braver than I. I told my father, 
may he rest in peace, that the car had been stolen. [Laughter.]
    Senator Burns. Well, my father was fortunate, or however 
you would term it. The first time he had a pain in his whole 
life, he was 86 and then they found there was cancer in his 
liver and they told him he only had 90 days to live. He looked 
at my mother and said, ``Now, ain't that something?'' But my 
mother was a very strong-willed lady and getting the car keys 
from her was a little bit tougher.
    I just want to know the difference because are we saying 
here--and by the way, both of those people that I was talking 
about are buried in Davies County, MO. You know where Davies 
County is?
    Ms. Scott. Yes.
    Senator Burns. This is where Frank James stood trial.
    Are we saying here that we are suggesting guidelines should 
be passed on the Federal level to unify the laws across the 
land, because sometimes caring children are not residents of 
the States in which their parents reside? Are we suggesting 
that?
    Mr. Hammond. Mr. Chair, is it my turn? I will go ahead and 
answer that question and make my comments, if that would be 
appropriate at this time, Mr. Chairman.
    The Chairman. Sure.

  STATEMENT OF TERRY W. HAMMOND, EXECUTIVE DIRECTOR, NATIONAL 
             GUARDIANSHIP ASSOCIATION, EL PASO, TX

    Mr. Hammond. Thank you. My name is Terry Hammond. I am the 
executive director of the National Guardianship Association. I 
am a practicing attorney in El Paso, TX. El Paso County, TX, is 
one of the poorest communities in this country, and so we see a 
lot of indigent guardianship issues where I practice. On behalf 
of the National Guardianship Association, I would like to thank 
Chairman Smith and the Special Committee for allowing the NGA 
to testify on the incidence of guardianship in the aging and 
disabled population in America.
    The NGA was created in 1988 in response to a withering 
report by the Associated Press that exposed inadequacies in 
State guardianship systems. I will note that the theme of that 
report in 1987 was Guardians of the Elderly: An Ailing System. 
Today, in 2006, the theme of this hearing is Exploitation of 
Seniors: America's Ailing Guardianship System--almost exactly 
the same theme 20 years apart.
    NGA membership is comprised of guardians and professionals 
from all walks of life. The mission of the NGA is to establish 
and promote a recognized standard of excellence in the 
guardianship practice. Honored Members, I must tell you that 
despite the best efforts of hundreds of committed guardians, 
judges and attorneys, at this time we have elderly and disabled 
Americans suffering in their homes and in our streets.
    As more Americans age, Federal, State and county 
governments look to each other to meet the needs of a 
generation that has given its all and now is in need of support 
of governmental services to survive. The lack of a coordinated 
response at all levels of government too often leaves our 
elderly to live their final days penniless and in unspeakable 
pain. Simply put, we are not doing senior Americans justice. At 
a minimum, the Federal Government should create an environment 
conducive to successful judicial intervention for those in need 
of a guardian.
    This is a challenging time to be engaged in the 
guardianship process in America. In recent years, we have had 
such high-profile cases as Rosa Parks, Brooke Astor, Molly 
Orshansky and Lillian Glasser, the numbers of which are 
eclipsed by scores of Americans in each of our hometowns. The 
national spotlight has been directed on guardianship often in 
an unflattering manner. The American guardianship system is far 
from perfect.
    Americans may find themselves before a guardianship court 
with a loved one or third party seeking appointment as 
guardian. If the physician indicates there is a medical 
necessity for guardianship, the court may appoint a guardian 
even over the objection of the elderly person. Often, there is 
evidence of abuse, neglect or exploitation necessitating the 
appointment of the guardian.
    The courts are increasingly turning to third-party 
professional guardians where there are family members who are 
not appropriate or not available, or even where distance 
separated loved ones. At this time, no one knows how many 
guardianships there are in America. This is because 
guardianship is a uniquely local process governed by State law 
and administered on a local level, often county by county.
    For example, in Texas alone there are 254 counties, each of 
which administers guardianship slightly differently. There are 
no national standards for guardianship other than the standards 
of practice for guardians adopted by the National Guardianship 
Association. There is no national certification process for 
guardians--and this is, Senator, following up on your 
comments--other than the registered guardian and master 
guardian certification testing process adopted and promoted by 
the NGA's sister entity, the National Guardianship Foundation.
    A recent study on guardianship by the ABA Commission on Law 
and Aging concluded basic data on guardianship is scant, 
offering courts, policymakers and practitioners little guidance 
for improving the system. The 2004 report by the GAO confirms 
these findings. Only a handful of State court systems are 
equipped or even interested in collecting data on 
guardianships. Although guardianships are local in nature, 
there are a number of areas in which the Federal Government's 
policies impact on guardianship. I would like to highlight a 
few of these areas.
    First, the designations of representative payees by the 
Social Security Administration and the Department of Veterans 
Affairs often impede the administration of guardianships. It is 
like you have parallel tracks. You have the Federal 
Government's representative payee system and the guardianship 
system in a State and the two never cross, and so there is very 
little dialog or communication between the Federal agencies 
administering Federal funds to payees and the courts that are 
considering these cases.
    For example, in the court I practice in the probate judge 
has banned the Social Security representatives and the VA 
representatives from testifying in his court because they will 
typically tell him, we are the Feds, we don't have to come to 
your court unless you go through an extensive subpoena process, 
we are not going to participate. In response, our county judge 
has said, fine, I am never going to let you come at all. So 
that is the level of dialog we have in this area.
    Social Security and the VA routinely appoint housing 
providers or other persons with potential conflicts of interest 
as representative payees, sometimes warranting intervention by 
guardianship courts. Adult protective services agencies which 
are funded with Federal block grants are part of the 
guardianship continuum. When APS systems fail, immense pressure 
can be placed on guardianship systems to step in on an 
emergency basis.
    I have cited to you perhaps the most thorough analysis of a 
failed APS system which occurred in Texas in 2004 and 2005 
because the guardianship process highlighted a number of cases 
where the elderly and disabled were left to live in squalor and 
to be exploited while adult protective services came in and 
investigated them. The report by the Texas Office of Inspector 
General revealed a total breakdown of that system, despite tens 
of millions of dollars of taxpayer money being appropriated for 
elderly protection.
    State and local governments often continue to struggle to 
find funding for indigent guardianship services. There may be a 
role for the Federal Government in this area. Courts 
administering guardianship cases often do not properly monitor 
the cases. There may be a role for Federal funding in this 
area.
    Finally, Federal funding to promote the use of alternatives 
to guardianship, properly drafted powers of attorney, money 
management services and other less restrictive alternatives to 
guardianship is essential. The failure of Americans to plan for 
incapacity is the primary cause for intervention in 
guardianship cases.
    Again, the National Guardian Association appreciates the 
opportunity to present testimony before the Committee today. We 
hope that this will be the beginning of a national dialog that 
will lead to the assurance that each and every elderly or 
disabled person subjected to a guardianship proceeding, 
regardless of which State or county that person may live in, 
will be afforded the dignity, respect and civil rights to which 
all Americans are entitled.
    [The prepared statement of Mr. Hammond follows:]

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    The Chairman. That was excellent testimony, Terry. Thank 
you so much.
    I want to assure Barbara Bovbjerg we are not ignoring you; 
we are going to get to you. Judge Grossman, in your full 
testimony we will want to hear anything that you would like to 
add to your comments already. But I do want to acknowledge the 
presence of Senator Salazar, of Colorado, who was formerly the 
State attorney general and probably has a lot of insight into 
these types of issues.
    Senator, if you have an opening statement or want to make a 
comment or question at this point, we would welcome that.

            OPENING STATEMENT OF SENATOR KEN SALAZAR

    Senator Salazar. Thank you very much, Chairman Smith, and 
thank you for holding this hearing on what is a very important 
topic. It may not be the sexiest topic in the world when people 
talk about guardianships, but it certainly is one of the most 
important questions that faces many people across our country.
    During the time that I was the attorney general, one of the 
things that we did in Colorado was we held a summit on the 
financial exploitation of seniors and out of that came a number 
of recommendations, including a no-call telemarketing law and a 
whole host of other things. One of the items that was focused 
on also was needed changes with respect to the guardianship 
laws in Colorado, and as a result of that, in 2001, we in 
Colorado adopted the Uniform Guardianship and Protective 
Proceedings Act and were one of the first States to do that.
    I am very interested in learning some more from the panel 
in terms of what you think we might be able to do at the 
Federal level to address the issues across the Nation and 
perhaps try to bring some uniformity, if that is desirable. I 
am pleased to be a cosponsor with Senator Smith, Senator Hatch, 
and Senator Lincoln, as well, with respect to the Elder Justice 
Act which we have introduced. So your recommendations to us on 
this issue are very important recommendations.
    Mr. Chairman, I have a much longer statement for the 
record.
    The Chairman. We will include it for the record, and thank 
you. We have been getting some tremendous ideas on just what 
you are asking for, as well, on what can we do at the Federal 
level to shore up this growing and emerging problematic area. 
Thank you for your presence here, Senator.
    [The prepared statement of Senator Salazar follows:]

               Prepared Statement of Senator Ken Salazar

    I would like to thank Chairman Smith and Ranking Member 
Kohl for holding this important hearing. Abuse of senior 
citizens by their guardians is a problem facing many seniors 
today. I welcome our panel of witnesses who have come to share 
their knowledge and provide guidance in addressing this 
problem.
    When entering into a court appointed guardianship 
relationship, the financial, physical and emotional well-being 
of seniors is placed in the hands of an individual. Under the 
law, that guardian has a legal obligation to act in the best 
interests of their trustee.
    And because many fundamental rights are lost due to the 
guardian's appointment, significant trust is placed in our 
state courts and social service agencies to ensure that seniors 
are protected.
    While I am certain that many court appointed guardians act 
in good faith to further the best interests of the trustee, the 
system for monitoring these arrangements to identify guardians 
acting in bad faith is severely under funded, and lacks the 
resources necessary to appropriately monitor guardian 
transactions.
    My home state has a record of proactively addressing these 
problems.
    In 2001, Colorado became one of the first states to pass 
the Colorado Uniform Guardianship and Protective Proceedings 
Act. This law codifies procedures, background checks, and the 
oversight responsibility to ensure that seniors are not taken 
advantage of by unscrupulous guardians.
    This law--and other enacted in others states in recent 
years--is a step in the right direction to protect seniors 
against guardian abuse.
    However, unless abuse is detected and reported by the 
Senior or third party, who subsequently brings a complaint, 
there is virtually no way to monitor and prevent abuse.
    Oftentimes, impropriety is difficult to prove since many 
seniors are unaware that guardians are stealing from them and 
do not have family available to help them monitor their 
finances.
    In addition, in many instances, the guardian that commits 
the abuse is a family member or close friend of the guardian--
and seniors are reluctant to be removed from abusive 
environment caused by loved ones.
    The qualification of guardians is also an important aspect 
of this relationship. In Colorado, there is currently no system 
of training and licensing for senior guardians. However, my 
state and others can learn from those who have implemented 
annual training requirements and licensing programs.
    As senior citizens place their trust in the hands of court 
appointed guardians, they should expect that their financial 
matters and personal affairs are being handled by someone with 
a degree of competence and training.
    Hearing the testimony of today's panel of witnesses and 
experts will help to frame the problem of guardian abuse, and 
provide some starting points as to what we at the federal level 
can do to help states and senior citizens to actively address 
this problem.
    While the guardianship program is largely regulated by the 
state, there is one step we can take at the federal level to 
protect seniors from abuse. I believe that Congress should 
enact the Elder Justice Act.
    I am proud to have recently joined the bipartisan group 
supporting this measure--which was unanimously passed out of 
the Senate Finance Committee in July.
    As the findings in this proposal suggest, the estimated 
number of seniors who are abused each year greatly varies. 
Regardless of the figure, any abuse should not be tolerated. By 
creating a federally coordinated effort to prevent abuse and to 
support research and prevention service, passage of the Elder 
Justice Act would allow our federal government to take greater 
steps to eliminate abuse.
    I look forward to today's testimony, and working with the 
members of this Committee to bring creative and lasting 
solutions to this problem.

    The Chairman. We have also been joined by the great Senator 
from Delaware, former Governor of Delaware, Senator Carper. 
Tom, if you have a comment or an opening statement you want to 
make, we welcome that.
    Senator Carper. Just a question or two, if I could.
    The Chairman. Sure.
    Senator Carper. Thanks, Mr. Chairman. Our thanks to all of 
you. As my colleagues know, we are all on a multitude of 
different committees and we have got a bunch of different 
committees and subcommittees meeting this morning, so I 
apologize for not being here for your testimony.
    I tell people I am a recovering Governor. Senator Salazar 
is a recovering attorney general for his State. This is an 
issue we thought about in Delaware, in State government. But in 
our role as Federal legislators, let me just ask each of you to 
just briefly go down the line, if you will, and just share with 
us maybe your one best piece of advice for us at the Federal 
level as to what should be on the top of our to-do list as we 
consider these guardianship issues.
    Mr. Salzman, can I start with you?
    Mr. Salzman. I think the top of the to-do list is make sure 
that public guardianship throughout the country is adequately 
funded because that is the only way poor people who need 
guardians in order to prevent institutionalization and 
homelessness are going to get the care and treatment that they 
need and be able to live out their lives in their homes.
    Senator Carper. Thank you.
    Would you pronounce your name for me?
    Mr. Salzman. Ira Salzman.
    Senator Carper. No, no, I am sorry. Barbara----
    Ms. Bovbjerg. Barbara Bovbjerg. Actually, Delaware is my 
home State.
    Senator Carper. You are kidding. Do you live there?
    Ms. Bovbjerg. I grew up in Wilmington.
    Senator Carper. Really? As a kid?
    Ms. Bovbjerg. Yes.
    Senator Carper. Where did you go to high school?
    Ms. Bovbjerg. Wilmington Friends.
    Senator Carper. Friends School. Great school. All right, 
well, it is nice to see you. Welcome.
    Ms. Bovbjerg. It is nice to be here. I think the most 
important thing the Federal Government can do--and I am from 
the Government Accountability Office--I think the most 
important thing the Federal Government can do is demonstrate 
leadership, which is already happening from this Committee's 
work, the proposal of the Elder Justice Act, some actions that 
have been taken in the Department of Health and Human Services 
in response to some of our recommendations.
    But I think that the idea that the Federal Government can 
foster and model collaboration among the States and the courts 
and can get the Federal agencies who have the representative 
payee programs to devise ways to communicate not only with each 
other, which is an important step, but also with the States and 
the courts, is very important. I think that those steps are 
starting in Congress, but certainly the Federal agencies need 
more of a push.
    Senator Carper. Thank you, and welcome.
    Ms. Scott.
    Ms. Scott. Carol Scott, from the State of--it is Missoura, 
by the way. Senator Talent was a little afraid to pick a side. 
I think a very important thing that the Federal Government 
could do is be supportive of the aging network and the Older 
Americans Act. There is a provision in there about having a 
legal services program that would be set up so that there would 
be opportunities for pro bono work and other networks to 
provide services for the elderly and disabled. So I think 
looking at the Older Americans Act and making sure that the 
Title VII elder rights section was beefed up under the legal 
services section.
    Senator Carper. Thank you.
    Mr. Grossman.
    Judge Grossman. I think that one of the recommendations 
that you all ought to seriously consider is something that has 
been touched on before, which is data collection. If you look 
at, for example, Senator Salazar's State of Colorado, all the 
probate and guardianship matters are now conducted essentially 
by e-filing electronically.
    My circuit actually is putting together a back-end system 
headed toward e-filing where, in addition to the document that 
is filed as a PDF document, there is going to be an envelope of 
XML data so that you can tag certain things. The beauty of the 
Federal Government supporting that--and I am not asking for 
money personally because we have dumped $500,000 in it and we 
will have the system and we are going to make it available to 
every circuit in my State.
    You know, most every decision in the area of guardianship 
tends to be done on the basis of anecdotal information. I have 
stories, these folks have stories, you all have stories. One of 
the things we are looking to do is to tag important data that 
will dump into a database and will provide some real 
quantitative, accurate information as to what is going on 
there. I think that that will be of great benefit to the States 
and to local courts.
    I also think it would be of great benefit to the Congress 
and to the Federal agencies to get a handle on what we are 
dealing with, because again we take anecdotal information and 
we extrapolate from that. But this more than any other thing 
that you all could do would provide a soundly based source of 
data that would provide us all with the information that all of 
us are looking to have.
    Senator Carper. Thank you.
    Mr. Hammond, the last word.
    Mr. Hammond. Thank you, Senator. You know, I think that 
there has to be a rethinking from the ground up of the way that 
the Federal agencies and the State agencies and the local 
courts are interacting and communicating and cooperating or not 
cooperating on guardianship issues.
    In Texas, I referenced the APS investigation over the last 
couple of years. It was found that in 71 percent of the cases 
where mental illness was identified, no capacity questions were 
asked and no clinical assessment was done of the elderly or 
disabled person. It seems to me that the Federal Government is 
devoting resources to elderly protection, but I think with the 
National Guardianship Association there is a question as to 
whether those resources are really reaching the maximum benefit 
to the elderly people they are designed to protect.
    Senator Carper. Let me just say, Mr. Chairman, thanks for 
pulling this hearing together and for our witnesses for being 
here. My mom passed away about a year ago. She had Alzheimer's 
disease and it progressed, as we know it does. My sister and I 
were able to take care of her and make sure she had the help 
and support that she needed. We have probably all have had 
folks like that in our own families and experiences like that. 
But as we know, too often there aren't those supportive members 
of the family to be there when someone needs them. I just 
applaud your efforts to try to make sure that in those 
instances there is a helping hand and someone to provide the 
care and attention that we all deserve.
    Thank you.
    The Chairman. Terry, you heard Judge Grossman speak about 
data collection and what we could do at the Federal level to 
enhance that and nationalize it. I am wondering, in your 
experience, what data we ought to be collecting.
    Mr. Hammond. Good question, Chairman Smith. You know, the 
American Bar Association just came out with this study a few 
months ago, and I have included it in my materials, where each 
State is doing it somewhat differently and many States are not 
doing it at all. I think that if this Committee and the 
appropriate entities could put together a group to work with 
the National Guardianship Association and other stakeholders, 
we could identify that information.
    Certainly, the age of the person, the nature of the 
disability that may cause them to have a guardianship, whether 
there is an indication of elder abuse of some kind--those are 
some of the very key, basic questions that need to be asked. 
But as the GAO report indicated and the ABA report as well, in 
order to even begin to address the issues, we need to know what 
the numbers are, and the NGA is seeking private funding.
    I referenced the Associated Press series earlier. The 
landscape in some ways has not changed in the last 20 years. 
One of the ways that it has changed is that you have had an 
increase in private efforts to shore up where the public 
efforts are failing. So you have the National Guardianship 
Association, you have 20 State guardianship organizations that 
have sprung up in the last 20 years.
    So I think privately we are doing what we can to fill in 
those gaps, but if the private stakeholders could work with the 
Federal Government and the State governments to really devote 
resources and develop the criteria and mandate these statistic-
gathering efforts, that is going to be a prerequisite in order 
to taking the next step further.
    The Chairman. Are you familiar with the Elder Justice Act 
that is before the Congress?
    Mr. Hammond. I am, Senator.
    The Chairman. Do you think it does this sufficiently, or 
ought we to amend it and enhance it?
    Mr. Hammond. I think that it comes close. I think that in 
light of these hearings and recent public scrutiny of 
guardianship systems, perhaps there needs to be a bit more 
emphasis in this area.
    The Chairman. OK. You have given me some work to do and we 
will get on it and get that included because we want to make 
sure that when we pass this, it meets current needs and we are 
identifying a very real need.
    Judge, he made some comments on the data we should be 
collecting. Do you want to add to things that ought to be----
    Judge Grossman. What I wanted to offer you is a few years 
back the Florida Supreme Court created a judicial applications 
development process, and as a result of that process we put 
together in guardianship, as well as probate and every other 
area that the trial courts deal with, a list of items that as a 
consensus we wanted to tag to go into the database. I would be 
more than happy to forward you all that information for your 
consideration.
    The Chairman. We would be very appreciative if we could 
receive that. It would improve the work we do with the Elder 
Justice Act.
    Yes?
    Mr. Hammond. Senator, if I may add, in our reform effort in 
Texas the past couple of years, we had put into the bill that 
ended up being Senate bill 6 an extensive data collection 
effort that would have mandated the 254 counties to report to 
the State information on guardianships. A significant part of 
that legislation was cut from the bill because it was 
considered to be too time-consuming, too expensive. So I think 
that our efforts on a State level, although well-intentioned, 
may not be very successful here and this may be something that 
has to be mandated at a higher level.
    Ms. Bovbjerg. May I jump in, Mr. Chairman?
    The Chairman. Yes, please, Barbara.
    Ms. Bovbjerg. When we did this work for the Committee a 
couple of years ago on guardianship, I was completely amazed by 
how little information is out there, how data are not uniformly 
collected. Even within a single State, there will be 
differences among courts when data are collected. So we 
couldn't tell how many guardianship arrangements there were. We 
couldn't tell how many of them were specifically for elderly 
people, and certainly we couldn't tell to what extent guardians 
are involved in some of these cases of abuse.
    I certainly agree with Mr. Salzman that we hear these high-
profile cases, and there are certainly a lot more things going 
on under the radar. It is therefore very difficult for the 
Federal Government or national organizations to devise 
effective approaches to preventing and detecting abuse when we 
don't know much in any kind of comprehensive way about the 
circumstances of that abuse, or the incidence of that abuse.
    We had suggested that HHS take the leading role in looking 
at how you could compile data, and what kind of data you should 
compile. But another way to think about it is to consider some 
of the databases we have on the criminal justice side and look 
at whether there isn't some way to get the crimes that involved 
guardians uniquely coded. There are different ways to think 
about it and we were hoping that perhaps HHS could take the 
lead.
    The Chairman. Very good, and I have only one other question 
for you, Terry, because you related the experience with this 
one judge and how he doesn't involve the Federal agencies. 
Obviously, there are some competence issues that we ought to 
pursue with some of the Federal agencies, but in your 
experience how competent are the judges that you deal with in 
guardianship matters?
    Mr. Hammond. With all due respect to Judge Grossman, I 
think that by and large the judges are pretty competent to 
adjudicate these cases. The challenge really is when you have 
courts of general jurisdiction deciding guardianship cases. 
Those judges are not well-trained on life-and-death issues, on 
capacity issues. So the Wingspan report from the year 2000 
where there was a national conference of guardianship 
practitioners and experts recommended specialization of judges 
who adjudicate guardianship cases. Unfortunately, sir, that is 
still not very often the case.
    I think where we have Judge Grossman here, any jurisdiction 
in this country would be honored and pleased to have him 
presiding over their cases. It is not very often we see a judge 
with this kind of expertise.
    The Chairman. Well, I think we should stipulate for the 
Senate record the competence of Judge Grossman. [Laughter.]
    Mr. Salzman. If I may say----
    The Chairman. Please, Ira.
    Mr. Salzman. I couldn't agree with that more. We had a 
similar problem in New York for many years where we had 
guardianships in some counties being dealt with in general 
parts and, you know, the judges moving from a negligence case 
to a contracts case to a guardianship case, and it was an 
unmitigated disaster. The improvement that we have had since we 
finally persuaded the court system to set up a specialized part 
is astronomic. It is a really, really important point, which is 
why I asked to cut in here.
    The Chairman. That is very appreciated. I hope you see that 
the Aging Committee--I like to manage these sort of 
conversationally, and I find I and my colleagues usually get 
the most out of it in that way. So as I said to Barbara, we are 
not ignoring you. Let's go to your testimony.

    STATEMENT OF BARBARA D. BOVBJERG, DIRECTOR, EDUCATION, 
WORKFORCE, AND INCOME SECURITY, U.S. GOVERNMENT ACCOUNTABILITY 
                     OFFICE, WASHINGTON, DC

    Ms. Bovbjerg. I appreciate that, Mr. Chairman. I swear I 
won't take my whole 5 minutes because we have had an 
opportunity----
    The Chairman. We have discussed a lot of it and we will 
include your full testimony in the record, but you may want to 
cover some points that perhaps we have not already done.
    Ms. Bovbjerg. Well, I appreciate that. I just wanted to 
remind everyone that we did this work 2 years ago, that we 
discovered that 50 States and the District of Columbia all have 
laws pertaining to guardianships, but the laws vary 
dramatically. Even within States, the way the courts implement 
these laws vary considerably. We also noticed that data are 
scarce on guardianships, something we already talked about 
today.
    We also talked about what we call the exemplary 
guardianship programs, of which Broward County and Judge 
Grossman's was one, not chosen by us, but chosen by 
organizations that we spoke to who deal with guardianship 
issues. We asked them, if you needed a guardian, where do you 
wish you lived, and they told us that Broward County was one of 
those places. So we reported on what we thought were good 
practices among courts.
    Then, finally, we observed that there is little cooperation 
between Federal agencies who have rep payee programs and 
between the Federal agencies and the courts.
    The Chairman. So the comment from Texas wasn't surprising 
to you that they don't even ask the Federal people to come in 
anymore?
    Ms. Bovbjerg. Actually, I was surprised by the comments 
about SSA and VA. I am not surprised by the variability, 
however.
    The Chairman. Just encouragement on the part of this 
Senator if there is something you can do to alert SSA and VA to 
be cooperative and not stand on their prerogatives or 
priorities as a Federal official.
    Ms. Bovbjerg. Well, I would certainly follow up with them. 
I know that the Social Security Administration, which has the 
biggest representative payee program in the Federal Government, 
has focused a lot of effort on that program in the last 2 
years. In 2004, Congress passed the Social Security Protection 
Act and many of the provisions in that Act were focused on 
assuring that representative payees were doing what they were 
supposed to do and not stealing money from the people that they 
were supposed to represent. So Social Security is on the case 
to a much greater extent than in the past, but I will make them 
aware of what has been happening in Texas.
    I do want to provide a little update of our work for you, 
and certainly some progress has been made. About half the 
States in the country have amended their guardianship laws in 
some way since then, some in small ways, others in larger ways. 
New Jersey is now requiring guardians, both public and private, 
to be registered. California has new education requirements for 
guardians and continuing education requirements, which I think 
you were interested in, Senator. Wisconsin requires that 
guardians visit the incapacitated person regularly. This has 
increased attention to strengthening these programs, and so 
these are positive steps, we thought.
    There are other steps that have been taken. The National 
Conference of Commissions on Uniform State Laws recently issued 
a discussion draft containing provisions that would allow 
guardianships to be recognized across States. It is model 
legislation. The National Academy of Elder Law Attorneys, the 
National Guardianship Association and others have a joint 
action plan on guardianships. They have 45 steps that could be 
taken at the national, State and local levels to accomplish the 
recommendations made in 2001 at the Wingspan conference on 
guardianship. This was a high-level effort by the professionals 
in this field, and they are important groups for the Federal 
Government and States to collaborate with; we hope for 
continued progress there.
    We do see areas, however, where much remains to be done. I 
already touched on these. The Department of Health and Human 
Services--we recommended they develop cost-effective approaches 
for compiling consistent national data. They have supported a 
study by the ABA on guardianship practices in the States. They 
also supported including questions about guardians in the 
National Center on Elder Abuse's survey of adult protective 
services.
    Although these actions represent progress, we still, as you 
have heard, do not have nationwide data on guardians and those 
under their care. As I think I may already have stated, the 
cross-agency cooperation needs attention. As you may be aware, 
the Social Security Administration did not agree with our 
recommendation that they form an interagency study group with 
VA and OPM to look at how they might share information with 
each other on rep payees.
    The Chairman. Why?
    Ms. Bovbjerg. Because they don't believe that such action 
is within their purview and they thought it was quite complex. 
Now, they share data regularly with other Federal agencies 
within the confines of the Privacy Act. I think their primary 
concern, honestly, was less with VA and OPM than that we also 
suggested they sit down with representatives of States and the 
courts and try to develop some way the three agencies and these 
other entities could share data.
    They felt that this would not only be out of their purview, 
but that it would also be complicated, and that is true. It is 
complicated if you envision sharing information with the many 
courts there are in the United States. They felt that such 
action would violate the Privacy Act. We did not agree with 
that. We felt that nothing prevents them from considering how 
they might do this. There must be other ways than matching data 
with each individual court. They do have authority to develop 
what are called ``statements of routine use'' that allow them 
to share data with States, for example, which they do for 
detecting prisoners who should not be receiving Social Security 
payments because they are in jail, things like that. They have 
agreements that do that. So we felt that even though it might 
require some time and attention on their part, and take them 
away perhaps from something else, that it was worth exploring, 
and so we are hopeful that we can encourage them to think about 
it.
    I just wanted to say in the end that the number of elderly 
Americans is going to grow dramatically in the future. Clearly, 
guardianship arrangements for the elderly will rise 
dramatically in response. If we are not going to ensure now 
that these arrangements are safe and effective, such actions 
will be much more difficult in the next decade.
    Progress is being made in the States and the courts in part 
because they are emulating strong programs and developing and 
deploying model legislation. But we believe that more must also 
be done to collect meaningful data and to foster continued 
coordination across the States and the Federal agencies.
    The Chairman. Do you feel like if the Social Security 
Administration doesn't have the statutory authority to do this 
that we ought to include that in the Elder Justice Act?
    Ms. Bovbjerg. We believe they have the statutory authority 
to do it, but any encouragement you could provide would 
probably be helpful.
    The Chairman. Well, like a statute? [Laughter.]
    Ms. Bovbjerg. Perhaps.
    The Chairman. OK. Thank you so very much, Barbara.
    [The prepared statement of Ms. Bovbjerg follows:]

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    The Chairman. Judge Grossman, we have probably overused you 
already this morning, but we never actually got to your 
testimony.

 STATEMENT OF HON. MEL GROSSMAN, ADMINISTRATIVE JUDGE, FLORIDA 
        17TH JUDICIAL CIRCUIT COURT, FORT LAUDERDALE, FL

    Judge Grossman. Well, let me just say two things. The 
statement that I prepared is going to be part of the record 
anyway. I think the only thing that I would really like to 
indicate is a profound belief that when the court takes away 
rights of an individual, the kinds of rights that all of us in 
this room enjoy, and appoints somebody as a guardian to make 
sure that that person is protected, we have got not only in 
Florida a statutory duty and a case law duty, but actually a 
moral duty to ensure that we have done the right thing and that 
that person is, in fact, protected. Otherwise, we should be out 
of the business completely.
    Being out of the business completely is not an option, 
especially as the baby-boomers hit. So the kinds of resources 
that are necessary both in terms of data collection and in 
terms of staffing and in terms of education of judges, too--the 
comment was made by Terry that there are some judges that it is 
only part of general jurisdiction and they don't understand it. 
Then Ira had indicated that that had changed now in New York.
    In Florida, 80 percent of the cases in Florida come with 
the 5 most populace circuits. Everywhere else, although that is 
now starting to change, it is only part of general jurisdiction 
of the court. What happens is we do an educational program 
twice a year at conferences, but if 90 percent of their 
workload is doing something else, they never show up for the 
education programs that involve guardianship. It is my belief 
that the new chief justice of the Florida Supreme Court will be 
remedying that.
    But you are absolutely right, and I am prepared to take 
full responsibility for the fact that judges don't always--when 
we did the guardianship task force, the testimony of some of 
the lawyers that were filling out these forms and just having 
the judge rubber-stamp them was, well, we know better than the 
judge does. In some cases, they were probably right, but there 
are certainly serious due process implications to the person.
    I mean, it is very efficient. I file a petition to 
determine Carol Scott's incapacity. I appoint her lawyer and I 
appoint the people examining her. There are some due process 
concerns that really need to be addressed, and I agree with 
these other folks here that part of it is developing 
specialized courts so that you have an in-house understanding 
of the issues and an understanding of what to look out for and 
provide better services than we frequently provide today.
    The Chairman. Very good.
    [The prepared statement of Judge Grossman follows:]

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    Mr. Salzman. Senator, may I add one particular point on the 
specialized courts? What we are finding in New York is having a 
specialized court for guardianship alone may not, in fact, be 
enough because, for example, one of the important things you 
need to do in an emergency is sometimes get an order of 
protection. Now, in New York that is normally not done in the 
same court that the guardianship is done in. There may be 
criminal issues involved. That is another court. So under a lot 
of cases, even with a specialized guardianship part, you can 
have the same case in three different courts or two different 
courts.
    Again, we have an experimental program going on just in one 
county in New York now where we have one State court judge who 
is sitting simultaneously criminal, family, and what most other 
States would call superior and we call supreme, who can do all 
three things simultaneously. I don't practice there because it 
is a county that is some distance from where I am, but 
everybody I know is very enthusiastic about it and it is the 
kind of thing that I mention just because it is the kind that I 
think other places should be thinking about as well.
    The Chairman. Do you find that these different courts of 
jurisdiction are open to that or are there turf battles over 
it, because it does make a ton of sense for some consolidation?
    Mr. Salzman. It requires the involvement of the 
administrative judges. So, for example, in a case we had 
recently where we wanted to start a guardianship and 
simultaneously get an order of protection, since at least in 
New York you can't go in and get an order of protection for 
somebody else--you can only get an order of protection for 
yourself--we had to go into court, into the supreme court, get 
a temporary guardian appointed who would have the authority to 
apply for an order of protection, and then that temporary 
guardian had to go to family court to then make a separate 
application for the order of protection. With the experimental 
part in Suffolk County, that could all get done in front of one 
judge.
    The Chairman. Well, thank you all so very much. We value 
your time and want to assure you that your testimony today and 
your contribution has added immeasurably to our doing our work 
at the Federal level and in the U.S. Senate. I know some of you 
have come a long way, but whether long or short, thank you for 
sharing your time and your expertise with us. It has made an 
immeasurable contribution and we heartily thank you.
    With that, we adjourn this hearing with our appreciation.
    [Whereupon, at 11:36 a.m., the Committee was adjourned.]


                            A P P E N D I X

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