[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
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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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