[Senate Hearing 112-147]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 112-147
 
                  PROTECTING SENIORS AND PERSONS WITH 
       DISABILITIES: AN EXAMINATION OF COURT-APPOINTED GUARDIANS

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

                                HEARING

                               before the

                     SUBCOMMITTEE ON ADMINISTRATIVE
                        OVERSIGHT AND THE COURTS

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                           SEPTEMBER 22, 2011

                               __________

                          Serial No. J-112-44

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 CHUCK GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
CHUCK SCHUMER, New York              JON KYL, Arizona
DICK DURBIN, Illinois                JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island     LINDSEY GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota             JOHN CORNYN, Texas
AL FRANKEN, Minnesota                MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware       TOM COBURN, Oklahoma
RICHARD BLUMENTHAL, Connecticut
            Bruce A. Cohen, Chief Counsel and Staff Director
        Kolan Davis, Republican Chief Counsel and Staff Director
                                 ------                                

        Subcommittee on Administrative Oversight and the Courts

                   AMY KLOBUCHAR, Minnesota, Chairman
PATRICK J. LEAHY, Vermont            JEFF SESSIONS, Alabama
HERB KOHL, Wisconsin                 CHUCK GRASSLEY, Iowa
SHELDON WHITEHOUSE, Rhode Island     MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware       TOM COBURN, Oklahoma
         Paige Herwig, Democratic Chief Counsel/Staff Director
           Danielle Cutrona, Republican Acting Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Klobuchar, Hon. Amy, a U.S. Senator from the State of Minnesota..     1

                               WITNESSES

Baldwin, Robert N., Executive Vice President and General Counsel, 
  National Center for State Courts, Williamsburg, Virginia.......    10
Brown, Kay E., Director, Education, Workforce, and Income 
  Security, U.S. Government Accountability Office, Washington, DC     4
Hollister, Michelle R., Managing Partner, Solkoff Legal, Delray 
  Beach, Florida.................................................    11
Holtz, Deb, State Ombudsman for Long-Term Care, Minnesota Board 
  on Aging, St. Paul, Minnesota..................................     6
Karp, Naomi, Senior Strategic Policy Advisor, AARP Public Policy 
  Institute, Washington, DC......................................     8

                       SUBMISSIONS FOR THE RECORD

Baldwin, Robert N., Executive Vice President and General Counsel, 
  National Center for State Courts, Williamsburg, Virginia, 
  statement......................................................    27
Brown, Kay E., Director, Education, Workforce, and Income 
  Security, U.S. Government Accountability Office, Washington, 
  DC, statement..................................................    34
Hollister, Michelle R., Managing Partner, Solkoff Legal, Delray 
  Beach, Florida, statement......................................    45
Holtz, Deb, State Ombudsman for Long-Term Care, Minnesota Board 
  on Aging, St. Paul, Minnesota, statement.......................    49
Karp, Naomi, Senior Strategic Policy Advisor, AARP Public Policy 
  Institute, Washington, DC, statement...........................    22
National Association to Stop Guardian Abuse (NASGA), Elaine 
  Renoire, President, Loogootee, Indiana, September 21, 2001, 
  letter.........................................................    53
Ring, Latifa, President, National Organization To End 
  Guardianship Abuse (NOTEGA), and Founder of the National Elder 
  Abuse and Guardianship Victims Taskforce for Change, statement.    56
Susman, Thomas M., American Bar Association, Washington, DC, 
  statement......................................................    68
VandeNorth, Deanna S., Saint Paul, Minnesota, September 22, 2011, 
  letter.........................................................    82


  PROTECTING SENIORS AND PERSONS WITH DISABILITIES: AN EXAMINATION OF 
                       COURT-APPOINTED GUARDIANS

                              ----------                              


                      THURSDAY, SEPTEMBER 22, 2011

                                       U.S. Senate,
   Subcommittee on Administrative Oversight and the Courts,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:30 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Amy 
Klobuchar, Chairman of the Subcommittee, presiding.
    Present: Senators Klobuchar, Franken, and Blumenthal.

 OPENING STATEMENT OF HON. AMY KLOBUCHAR, A U.S. SENATOR FROM 
                     THE STATE OF MINNESOTA

    Chairman Klobuchar. I am pleased to call this hearing of 
the Senate Judiciary Subcommittee on Administrative Oversight 
and the Courts to order. Good afternoon to everyone, and thank 
you for being here to discuss this very important issue of 
guardianship. I think we will have some other Senators joining 
us. I hope we do. A little lonely up here. But I know we have a 
number of people that care very much about this issue. We have 
some victims and people in the audience. Thank you for being 
here. We are very glad to have you here. And we also have some 
great witnesses here that are going to shed some light on this 
important issue for all of us.
    One of society's most important obligations is to care for 
those who cannot care for themselves. Whether this is an aging 
parent or a child with a disability, we have a duty to protect 
those who are most in need of care.
    Sometimes that obligation requires courts to appoint a 
guardian or a conservator to make financial and other decisions 
for people who are not capacity of managing their own affairs, 
typically the elderly and people with disabilities.
    In my home State of Minnesota, over 20,000 people have 
court-appointed guardians or conservators. These guardians are 
charged with looking out for the best interests of the people 
under their supervision, but sadly, too often that does not 
happen.
    I know these cases are devastating for the victims and the 
family members involved, and over the last few weeks, our 
office has heard from victims and advocates, some of whom are 
in this room, across the country who had heart-breaking stories 
to tell. These experiences should be shared, and that is why, 
in addition to our staff collecting them or asking if people 
are interested in writing them down and submitting testimony 
for the Congressional Record, we will leave the record open for 
1 week. And so please, if you have any questions about that, 
you can also talk to our staff, to Craig or to Elizabeth back 
here as well after the hearing.
    While the vast majority of court-appointed guardians are 
undoubtedly professional, well-meaning, and law-abiding, there 
is mounting evidence that some guardians use their position of 
power for their own gain at the expense of the very people that 
they were supposed to be looking out for.
    Now, I had a number of cases when I was county attorney--
which is like being the D.A.--in Hennepin County, which 
represents about a fourth of the population in Minnesota, and 
one of the things that I saw there was just the abuses of power 
that you would see every single day.
    One of the cases that we had was a case involving a judge--
now, this was not a guardian; it was a trustee. But it was a 
very similar--hello, Senator Franken.
    Senator Franken. Hi.
    Chairman Klobuchar. It was a very similar position of trust 
that had been violated. In this case you had a judge on the 
second highest court in Minnesota, the court of appeals, who 
was a trustee for a young woman who had severe disabilities. 
She lived in her 20's in a world of dollars and stuffed 
animals. Her father had asked this man, who was at the time a 
lawyer, to become her trustee. He had set aside hundreds and 
hundreds of thousands of dollars.
    The trustee then became a judge, was promoted to the second 
highest court in Minnesota, and 1 day--we will never forget 
it--the guardian and the trustee came to see the lawyers in our 
office and claimed that this very famous judge had been ripping 
off the trust. At first we actually did not believe it, and we 
sent out an investigator, and we looked into it. And I still 
remember my lawyer calling me on Christmas Eve Day, crouched 
down in his car, looking at this judge's house, and said, 
``There is no way this guy can afford this on a judge's 
salary.''
    What we found out was that he had gone through every penny 
in the trust that he had been claiming that he was basically 
putting in new equipment, a bed in her house, and he was buying 
gold statues in L.A.; that he was putting in floors in her 
house when he was putting in marble floors in his own house. He 
went to prison for 5 years, and those are the kinds of cases 
that have made me very interested in this issue and realize 
that we cannot just trust the system to work on its own.
    A 2010 report by the Government Accountability Office found 
hundreds of allegations of neglect and improper actions by 
guardians across the country. GAO looked closely at 20 of those 
cases and discovered that $5.4 million had been improperly 
taken by guardians from 158 victims.
    Now, when we are in Washington here dealing with billions 
of dollars, this may not seem like large sums of money in 
Washington talk. But to the victims, as you all know, the 
consequences can be devastating.
    I read one account of a guardian accused of improperly 
paying herself thousands of dollars while failing to provide 
for the basic needs like food and housing of the person she was 
overseeing. The victim had to be removed from his home by 
social workers because of the poor conditions in his apartment.
    In some cases, the guardian may not necessarily be corrupt. 
They may just be incompetent or negligent. But the results can 
be just as harmful for the person under their supervision.
    Given the evidence of the widespread problems, I believe it 
is a moral imperative that we take action. Clearly, the 
responsibility for these abuses is with those guardians who do 
not fulfill their role properly and lawfully, but it falls to 
the rest of us to make sure that we are doing all we can in 
terms of oversight and putting the proper policies in place.
    Currently, the rules for screening guardians before they 
are appointed and monitoring them afterwards vary from State to 
State. For instance, the GAO found that only 13 states conduct 
criminal background checks of guardians, if you can imagine. 
Also, State and local court systems often do not have the 
resources to improve their guardianship procedures, although 
some courts have been taking steps to do so.
    For example, Ramsey County in the Twin Cities has 
implemented electronic filing for guardianship accounting 
reports which can potentially improve the oversight. And 
Hennepin County, where I worked for 8 years, has a data-sharing 
agreement with the VA because the VA appoints fiduciaries for 
some of the same people who have court-appointed guardians, so 
they are able to double-check on their credentials.
    In order to bolster these efforts in Minnesota and 
elsewhere in the country, I have been working on legislation 
that would promote criminal background checks and e-filing and 
allow State courts to improve their practices and policies with 
respect to guardianships.
    So I am eager to hear from our witnesses today about the 
problems that we face, and about the potential solutions to 
ensure that we are on the right track to provide some increased 
accountability and oversight of this issue.
    Before we swear the witnesses in, I do not know if you 
wanted to say a few words, Senator Franken. We have a witness 
here from Minnesota, Deb Holtz.
    Senator Franken. I know Deb, and she testified in Maple 
Grove in a hearing we had on the Older Americans Act, and I 
thank you for being here. I, too, want to hear all your 
testimony, and then I will subject to grueling cross-
examination.
    Chairman Klobuchar. It will be kind of like the Google 
hearing yesterday, just so you are ready.
    OK. Why don't you stand to be sworn in. Do you affirm that 
the testimony you are about to give before the Committee will 
be the truth, the whole truth, and nothing but the truth, so 
help you God?
    Ms. Brown. I do.
    Ms. Holtz. I do.
    Ms. Karp. I do.
    Mr. Baldwin. I do.
    Ms. Hollister. I do.
    Chairman Klobuchar. Thank you.
    I am going to introduce our witnesses and then have each of 
them speak for 5 minutes, and as I mentioned, we also have 
testimony from victims, and I will be submitting that for the 
record.
    [The information referred to appears as a submission for 
the record.]
    Chairman Klobuchar. We are first joined by Kay Brown, who 
serves as the Director of Education, Workforce, and Income 
Security at the Government Accountability Office, known as GAO.
    Next, from my home State of Minnesota, we have Deb Holtz. 
Deb serves as Minnesota's long-term care ombudsman and is the 
top consumer advocate for seniors. And I know you have been a 
tireless advocate, Deb, for countless victims of guardianship 
fraud and abuse, and I look forward to hearing about your work 
and also the stories of working with victims' family members in 
Minnesota.
    We will also hear from Naomi Karp, who is a strategic 
policy advisor at AARP.
    Next we have Robert Baldwin, who is the executive vice 
president and general counsel at the National Center for State 
Courts. I just threw you in so that they would know we do not 
have a glass ceiling with our witnesses since the rest of them 
are women. It is sort of an affirmative action thing.
    [Laughter.]
    Chairman Klobuchar. OK. And then finally we have Michelle 
Hollister, who is managing partner at Solkoff Legal in Delray 
Beach, Florida. Michelle was the former executive director of 
the Florida Statewide Public Guardianship Office.
    So thank you very much, all of you, for coming, and we will 
start with Kay Brown from the GAO.

STATEMENT OF KAY E. BROWN, DIRECTOR, EDUCATION, WORKFORCE, AND 
    INCOME SECURITY, U.S. GOVERNMENT ACCOUNTABILITY OFFICE, 
                         WASHINGTON, DC

    Ms. Brown. Chairman Klobuchar, Senator Franken, thank you 
for inviting me here today to discuss guardianship, a very 
important issue that affects the well-being of some of the 
Nation's most vulnerable individuals.
    When courts appoint guardians to protect an individual's 
personal and financial welfare, it is not without risk. 
Although many guardians faithfully carry out their duties in 
the best interest of their wards, we know from our work that in 
some cases guardians have stolen or otherwise improperly 
obtained assets and sometimes neglected and abused their wards.
    Today I will cover two issues: the importance of screening 
and monitoring to reduce the risk of abuse by guardians, and 
ways in which the Federal Government may be able to help.
    First, regarding screening and monitoring, most States 
require courts to follow specific procedures for screening 
prospective guardians. However, requirements differ among 
States. For example, 13 require guardians to undergo an 
independent criminal background check, 9 prohibit convicted 
felons from serving as guardians, and 2 prohibit convicted 
criminals; 13 offer guardianship certification.
    However, these screening procedures are not always 
effective. For example, using two fictitious identities, one 
with bad credit and one with a Social Security number of a 
deceased person, GAO was able to obtain guardianship 
certification or meet certification requirements in the four 
test States where we applied.
    Once guardians are appointed, most States require their 
performance to be monitored in some way, most often by 
requiring annual reports. However, these reports are not useful 
unless they are submitted on a timely basis and reviewed. From 
our work we know this does not always happen.
    For example, we have identified cases where the courts 
failed to oversee guardians after their appointment, allowing 
abuse and exploitation to continue over a period of years.
    In a 2004 GAO survey of courts in three States, most 
indicated they did not have sufficient resources to adequately 
oversee guardians. AARP reported similar results in a 2007 
report. So what can be done?
    AARP and the American Bar Association have identified a 
number of promising practices to strengthen court monitoring, 
such as ways to improve reporting, flag likely problems, and 
increase in-person visits to incapacitated persons. Some State 
courts have begun to adopt these practices, but more can be 
done. Given limited resources for monitoring, courts may be 
reluctant to invest in new practices without evidence of their 
feasibility and effectiveness.
    On my second point regarding ways the Federal Government 
could help, we have gone on record in the past encouraging the 
Social Security administration to take steps so its staff can 
make certain information available to State courts upon 
request. For example, courts may find it useful to know whether 
an SSA fiduciary has misused benefits in the past. However, SSA 
does not believe it has authority to do this and has not taken 
steps to obtain it.
    Regarding HHS, its Administration on Aging established the 
National Legal Resource Center in 2008 to improve the delivery 
of legal assistance and enhance elder rights protections. The 
center has supported State courts and national guardianship 
organizations through training and technical assistance.
    Although screening and selecting potential guardians are 
State responsibilities, the Federal Government has an 
opportunity to help by contributing to provide technical 
assistance and support evaluations of promising monitoring 
practices. We recently recommended that HHS support pilot 
projects to evaluate the feasibility, cost, and effectiveness 
of such promising practices, and HHS agreed and noted that it 
could run these pilots under existing demonstration grant 
authority.
    In conclusion, governments at all levels are facing severe 
fiscal constraints. However, the problem of guardianship abuse 
is real and likely to grow as the number of older adults grows. 
Actions such as identifying cost-effective, promising practices 
can help States make the best use of their limited resources 
and still focus on improving protections for this vulnerable 
population.
    This concludes my prepared statement. I am happy to answer 
any questions.
    [The prepared statement of Ms. Brown appears as a 
submission for the record.]
    Chairman Klobuchar. Thank you very much.
    Ms. Holtz.

  STATEMENT OF DEB HOLTZ, STATE OMBUDSMAN FOR LONG-TERM CARE, 
         MINNESOTA BOARD ON AGING, ST. PAUL, MINNESOTA

    Ms. Holtz. First I need to push the button, and then I can 
talk.
    First, I just need to say Minnesota is so honored to have 
you and Senator Franken represent us. I just need to thank you 
for your work that you do for us. And thank you for the honor 
to be here and talk about what we do in the ombudsman office.
    We are a unique Federal program. We have a mandate to 
listen to people who have concerns or complaints if they live 
in nursing facilities or board-and-care homes. And in 1989, 
Minnesota actually expanded that mandate to include home-care 
recipients. We are one of only 12 States that does that.
    At this point in my notes it says to thank Senator Franken 
for something that he is working on with home care, but since 
he is going to grill me later and use up my time, I am just 
going to skip that paragraph.
    [Laughter.]
    Ms. Holtz. Last year, over 21,000 people had personal 
contact from our office, either through our staff or 
volunteers, and almost 2,500 complaints were responded to. 
Among those complaints are also systemic issues that we have 
been looking at, and guardianship is one of them. In 2009, 
actually, we moved some legislation that reformed some of our 
State guardianship laws.
    We are very supportive of your efforts, Senator Klobuchar, 
to take a look at this and determine what can be used across 
the country. You took some of my words I was actually going to 
talk about with the new mandate in the State of taking the 
pilot project that started in Ramsey County with e-filing for 
conservatorships that is now going to be statewide. But one of 
the things that I wanted to share today are some of the stories 
of the victims.
    Many of the victims or many of the survivors that we work 
with in our office are too frail to travel or to tell their 
stories or have passed away. But I want to emphasize a couple 
stories today primarily about--you have already heard about 
some of the abuses that professional guardians take. One of the 
encouraging things that I think, Senator Klobuchar, you are 
focusing on also is the speed at which the court reviews cases 
and how they actually review cases and monitor cases.
    We are working with an individual right now who is a 
veteran. He is a veteran who actually is legally blind, and he 
has some brain injuries, so he really does not understand the 
whole case that we are working on. But his brother--and some of 
you may have seen this in the recent media--is disputing a 
$1,000 bill from the veterans' home that happened several years 
ago, and because of his refusal to pay that and the interest 
that has now compounded, this bill is over $100,000, and this 
veteran is at risk of being discharged from the veterans' home. 
There is no need for this to have gotten this far, and I do not 
understand how it gets this far if we have a court process that 
is supposed to be monitoring and looking at these issues.
    We had another case several years ago that probably is the 
saddest case that I have ever encountered in my entire history 
of working with people with disabilities or people who are 
seniors, and this was not a professional guardian. This was a 
family member. And this is not the first time this has 
happened. Dad had remarried, so it was his second wife, and the 
daughter just did not like this second wife. And so she was 
able to get guardianship, and this was before our laws changed 
in Minnesota. She was able to state that for the best interest 
of her father, the second wife should not visit the father. The 
father, unfortunately, was beginning to slip away in dementia, 
and as he still had some lucid moments, he would question us 
why his wife was not coming to visit him. ``Why doesn't she 
love me anymore? Where is she?'' And there was no court review 
to actually see what decisions the guardian was making and how 
this was harming this gentleman. He slipped into the final 
stages of dementia thinking that this woman that he loved and 
that he had chosen for his second wife did not love him anymore 
and did not come to visit.
    I have about 30 seconds, so I guess I have to talk a lot 
faster.
    The other case that I wanted to tell you about is just the 
timeliness of the court. We are working with an individual 
woman who, in March, showed some signs of dementia, so she was 
appointed a professional guardian. But family members are 
arguing about who can visit on what days. Believe it or not, 
these are the kinds of things that make it to the court. The 
court has been bringing in experts to determine what would be 
beneficial for her. Our office came up with a visitation 
schedule that everyone agreed to except one attorney--one 
attorney of the entire family members--because it was informal 
mediation instead of formal mediation. So she is still left 
without visits from the family. This started in March.
    I have 1 second--OK. You know, so what I want to say is 
that the idea of looking at things that have happened in 
Minnesota and in other States, such as the Bill of Rights for 
People under Guardianship, when we reformed the guardianship in 
2009, one of the best things that we did pertained to these 
visits. The law used to read that guardians could make a 
decision about who could visit whom based on the best interest 
of the ward. Now the burden of proof is switched. We got 
language in there that says you can only restrict a visitor if 
you can show that there was harm with this visitor coming 
there.
    So what that means is that you and I are entitled to have 
mom or that brother or that friend that gets into an argument 
with us and it is just part of that routine that we have. Maybe 
it is just an argumentative relationship, or it is the ups and 
downs. How many of us get along with our family members 100 
percent of the time? What this law will allow us to do is to 
enable people to have the visitors, people that mean the most 
in their lives, come and visit them, and the burden of proof is 
switched to be now on the guardian.
    I guess I am going over, so now would be a good time, if 
you want to grill me, because then I can go into more----
    Chairman Klobuchar. We will do that at the end of the 
panel.
    Ms. Holtz. OK.
    Chairman Klobuchar. As fun as that is going to be, we will 
do that at the end.
    Ms. Holtz. All right.
    [The prepared statement of Ms. Holtz appears as a 
submission for the record.]
    Chairman Klobuchar. Thank you very much. You just cannot 
wait for it.
    We will go on to Ms. Karp. Thank you so much.

STATEMENT OF NAOMI KARP, SENIOR STRATEGIC POLICY ADVISOR, AARP 
            PUBLIC POLICY INSTITUTE, WASHINGTON, DC

    Ms. Karp. Thank you. Chairman Klobuchar, Senator Franken, 
thank you for giving AARP the opportunity to address the 
critical topic of protecting older adults with court-appointed 
guardians.
    Guardianship is a powerful legal tool that can bring good 
or ill for an increasing number of vulnerable adults. It 
provides necessary decisionmakers for people with diminished 
capacity and protects them from abuse--yet it also removes 
fundamental rights and may increase the opportunities for abuse 
of the very people we strive to protect.
    As you know, a State court judge appoints a guardian who 
steps into the shoes of an incapacitated adult and makes 
judgments about property, medical care, living arrangements, 
lifestyle, and potentially all personal and financial 
decisions.
    And the number of these guardianship appointments will 
continue to grow dramatically, as we know, due to the 
increasing incidence of Alzheimer's disease, the extended life 
span of people with developmental disabilities, and the rising 
incidence of elder abuse because guardianship can be a remedy 
for elder abuse. The data are scarce, but the National Center 
for State Courts recently estimated that about 1.5 million 
adults nationally have guardians. In other words, there are as 
many people with court-appointed guardians as there are 
residents in U.S. nursing homes at any given time. And as you 
also know, our Federal and State governments have longstanding 
and comprehensive structures in place to protect nursing home 
residents. But who is guarding the guardians?
    AARP has long advocated that individuals subject to 
guardianship receive full due process rights, and that once 
guardians are appointed, courts fully monitor cases, identify 
abuses, and sanction guardians who demonstrate malfeasance.
    When a guardian is abusive, he or she is cloaked in the 
court's authority and can really be a wolf in Little Red Riding 
Hood's cape--often with no one protecting grandmother. The 
victim may not be able to seek help. Abusers often isolate 
their victims, and people with cognitive impairments are easier 
to isolate. The majority of guardians are family members, and, 
of course, many of them do a great job and are very well 
meaning. But a national elder abuse study found that 5.2 
percent of older adults experience financial mistreatment by a 
family member, and that is only the tip of the iceberg.
    As mentioned by the GAO, AARP's Public Policy Institute and 
the ABA Commission on Law and Aging spent 2 years studying how 
courts monitor guardians. We found many troubling signs, 
although there are some bright spots. In our 2006 survey of 
judges, lawyers, guardians, and others in the system, we 
learned that we have a long way to go.
    For example, we found that although almost all States 
require guardians to file annual reports and accounts, one-
third of survey respondents said that no one at all at their 
court verifies these records; and even more troubling, 40 
percent of our respondents said that no one is assigned to 
visit the wards, which is really the only real way to see how 
they are faring.
    These are not deliberate failings. The fact is that most 
courts simply lack the staff, the resources, the knowledge. and 
the time to effectively monitor.
    So in 2007, we wanted to look at what was the good news out 
there, what were the promising practices, and we found that 
some dedicated courts are making great strides by harnessing 
technology, using volunteers, and working with the aging 
network. Some of the key practices are requiring that guardians 
file prospective plans so that the courts can then later, you 
know, go back and measure whether they are doing what they said 
they would do. They have visits to the incapacitated person at 
home either by staff investigators or trained volunteers who 
serve as really the eyes and ears of the court, and random 
audits of accounting and so forth.
    Senator Klobuchar, as you mentioned already, one of the 
most promising practices we found back in 2007 was the system 
of electronic filing in Ramsey County, which was very 
impressive. And just to explain it a little bit more, the 
software allows guardians to submit their annual accounting in 
a uniform online format. The system does the math, thereby 
avoiding common accounting errors. But more importantly, the 
system can be set up to have red flags automatically built in, 
so that, for example, if the closing balance in one year's 
report does not match the opening balance the next year, or if 
something extraordinary shows up, automatically a red flag can 
pop up that is showing that maybe this guardianship has gone 
bad. And then a human being on the court staff can investigate 
and, you know, perhaps find a case like the one you described, 
Senator Klobuchar. So we should encourage the replication of 
practices like that.
    I know my time is running out. I just wanted to mention 
also the criminal background checks you cited, the statistics 
that so few States are recommending them. We support the notion 
of criminal background check screening. We think that that is 
extremely important.
    In closing, I would just like to quote Judge Steve King, 
who is a Texas judge with a very comprehensive monitoring 
program, and Judge King said: ``People will not always do what 
you expect, but they will do what you inspect.'' And AARP looks 
forward to working with Members of Congress on both sides of 
the aisle to help give hard-working courts the opportunity to 
inspect where needed to protect vulnerable older people.
    Thank you so much.
    [The prepared statement of Ms. Karp appears as a submission 
for the record.]
    Chairman Klobuchar. Very good. Thank you very much.
    Also now we have been joined by Senator Blumenthal, former 
Attorney General of Connecticut, who I know has done work in 
this area as well.
    Please, Mr. Baldwin.

 STATEMENT OF ROBERT N. BALDWIN, EXECUTIVE VICE PRESIDENT AND 
      GENERAL COUNSEL, NATIONAL CENTER FOR STATE COURTS, 
                     WILLIAMSBURG, VIRGINIA

    Mr. Baldwin. Madam Chair and members of the Subcommittee, 
the National Center for State Courts is a private nonprofit 
corporation formed 40 years ago at the behest of then Chief 
Justice of the United States, Warren E. Burger. The mission of 
the center is to promote the rule of law and to improve the 
administration of justice in the State courts, and we 
appreciate this opportunity to testify today.
    Each year, the center produces a report that tries to set 
forth some of the trends that will be affecting and are 
affecting the State courts. In 2008, that report highlighted 
the fact that, in less than 25 years, the senior population--
those over 65 in this country--would more than double to over 
70 million people. The report went on to talk about some of the 
challenges that this demographic shift would bring about and 
some of the needed actions.
    Pursuing those challenges and responding to them, the 
National Center has been working with the National College of 
Probate Judges to try to update and expand the national 
standards for probate courts. Given the fact that practice and 
procedure vary from State to State, these standards provide an 
opportunity for greater uniformity, consistency, and hopefully 
continued improvement of the probate practices of our Nation's 
courts.
    In addition, the National Center created within its own 
organization a Center for Courts and the Elderly. That center 
provides the opportunity for research, for training and 
educational tools, as well as a forum for judges and aging 
experts from around the country to get together and talk about 
these issues, and obviously a website to provide resource 
information.
    In 2009, the center conducted a survey, the results of 
which led to recommendations by the Conference of Chief 
Justices and the Conference of State Court Administrators Task 
Force on Courts and the Elderly. Those recommendations are very 
consistent with the findings of the GAO report and with some of 
the things that have already been mentioned here today. They 
include that each State should, in fact, collect information on 
the number of guardianships, the number of conservatorships, 
the number of elder abuse cases that are filed, pending, and 
concluded each year; that each State should adopt and implement 
procedures to more effectively monitor the performance of 
conservators and guardians; that each State experiment with 
technology, in order to document, track, and more effectively 
monitor these types of cases; and, finally that both Federal, 
State, and private funds should be sought to support the 
collection and analysis of national information on guardianship 
cases and best court practices.
    This latter point, the need for credible data in this 
regard, is particularly important. It is very difficult to 
solve a problem you do not understand or do not have much 
information about. And as has already been said, we at this 
point in time can only estimate the number of open guardianship 
cases and that estimate is 1.5 million.
    We commend the Senator on your efforts to assess the 
effects of conducting background checks on prospective 
conservators as well as introducing the electronic filing of 
accountings and other reports. These are steps in the right 
direction.
    We especially commend the proposed possibility of a 
Guardianship Court Improvement Program modeled after the Court 
Improvement Program for Abused and Neglected Children. That 
program has been exceptionally successful in raising the 
awareness of this issue, creating collaborations, improving 
training and collection of data, and improving outcomes.
    The Conference of Chief Justices and the Conference of 
State Court Administrators last year endorsed the creation of a 
Guardianship Court Improvement Program. In addition to 
assessing the State laws and practices, such a program could 
also be very effective in leading to the creation of statewide 
guardianship task forces in those States that do not already 
have them, to the development of local data collection systems, 
to the creation of statewide court guardianship coordination 
positions, and to the development of State court action plans. 
Implementation of such action plans that were developed under 
the CIP program for abused and neglected children has been very 
successful and has contributed to reducing the number of 
children in foster care. We are confident that such a 
Guardianship Court Improvement Program would have equally 
positive benefits for those adults with diminished capacity and 
for the public in general.
    We appreciate the opportunity to testify today. Thank you.
    [The prepared statement of Mr. Baldwin appears as a 
submission for the record.]
    Chairman Klobuchar. Thank you very much. I appreciate it.
    Ms. Hollister.

 STATEMENT OF MICHELLE R. HOLLISTER, MANAGING PARTNER, SOLKOFF 
               LEGAL, P.A., DELRAY BEACH, FLORIDA

    Ms. Hollister. Good afternoon. My name is Michelle 
Hollister. Currently, I am an elder law attorney with Solkoff 
Legal, P.A., in Delray Beach, Florida. Prior to my joining the 
Solkoff firm, I was appointed by Governor Bush and continued 
under Governor Crist as executive director of Florida's 
Statewide Public Guardianship Office. Thank you for the 
opportunity to speak to you this afternoon.
    I begin by asking that everyone in this room consider what 
happens if you do not make it home tonight. Nobody likes to 
think about unexpected life-altering injuries, but they occur 
every day to many people, and these events leave permanent 
damage. We live good lives, and we try not to think about bad 
things. We fail to plan because planning means admitting to our 
own frailty.
    If you needed assistance, who would you turn to? If 
something happened to you, who would take care of those who 
depend on you? We really have two choices: One is to self-
delegate so that we pick the people who can do for us if we 
cannot do for ourselves. The second choice is to do nothing. If 
we do nothing, every State has provided a system of 
guardianship.
    Guardianship is expensive, time-consuming, and very 
intrusive. Because people often do not do the planning 
themselves, the demand on the social services and judicial 
systems continues to grow. Guardians do for others what others 
can no longer do: make sure doctors are visited, there is a 
roof over your head, food on the table, clothes on your back, 
medicines are available, money is in the bank. And the list 
goes on and on. And with all this responsibility, many States 
have little or no oversight over guardians.
    With problems have come attempts at solutions. In the 
1980's, the South Florida media began an investigative series 
on the lack of guardianship oversight. As a result, legislation 
was adopted that required courts to conduct credit and criminal 
history reviews of professional guardians and allowed courts to 
exercise discretion for non-professional guardians.
    The recognition of this need for guardianship monitoring 
was significant. Broward County, home to one of the largest 
populations of older Americans, was compelled to take action 
though no resources were available. They implemented an 
investigation fee, along with charging the applicant for the 
actual costs of the investigation. The program was implemented 
for all professional and non-professional guardians in Broward 
County. That was almost 15 years ago. The investigation fee, 
along with some county dollars and space, funds two full-time 
staff. This has become one of the few court monitor offices in 
our State. The office also supports independent contractors 
that are appointed to provide oversight on an as-needed basis 
and who are compensated from the assets of the ward.
    Shortly after establishing legislative authority for the 
background screening and court monitors, the Florida 
Legislature created the Statewide Public Guardianship Office. 
The original purpose of the office was for the State to appoint 
and oversee public guardians--guardians that serve indigent 
people that have nobody to assist them. Upon recognition of the 
need to implement professional guardian oversight, the 
Statewide Public Guardianship Office was charged with the 
responsibility to oversee all of the professional guardians, 
whether for the indigent or not.
    The goal of the statewide office became to assist the 
courts in identifying professional guardians who are competent 
to assume the responsibilities of managing the person and 
property of others.
    The basis for the Florida statewide program evolved from a 
2003 study done by a Subcommittee of the Florida Supreme Court 
Commission on Fairness. The report provided guidance on the 
components of a guardianship monitoring program, and it 
specified four areas, the foundation being the ongoing 
screening of guardians.
    Every professional guardian in Florida must be registered 
with the Statewide Public Guardianship Office. Registration 
includes a State and Federal criminal history every 2 years 
unless the person is electronically printed. There is a review 
of the professional guardian's credit history every 2 years. 
Florida was one of the first States to require professional 
guardians pass an examination in addition to its mandatory 40 
hours of instruction.
    In order to create and implement the exam, the State issued 
a request for proposals that indicated no monies were available 
for the initiative. The Center for Guardianship Certification 
already had an exam in place and, therefore, was able to 
provide the test at no cost to the State by charging the 
applicant $250. The professional guardian also pays a small 
registration fee, currently $35, to the statewide office.
    In addition to the above, the professional guardian must 
complete 16 continuing education hours every 2 years and 
annually submit proof that they have a bond. The Statewide 
Public Guardianship Office maintains a real-time data base on 
its website for the judiciary as well as the public to confirm 
a professional guardian's licensure is current.
    The remaining components of Florida's monitoring program 
fall within the purview of the presiding judge. Those areas 
include: the annual reporting on the well-being of the ward, 
the annual reporting on the protection of the ward's assets, 
and ongoing case administration. Florida continues to strive 
toward guardianship monitoring innovations. Earlier this month, 
the Palm Beach County Clerk of Court unveiled a guardianship 
fraud hotline with Florida inspector general staff dedicated to 
conducting high-level financial audits upon the request of the 
public and the judiciary.
    I am conflicted to be here touting Florida's 
accomplishments because those that work within the area are 
aware that there is much left to do. Although I am proud of 
what we did with little resources, please know there is still 
much more work in this area.
    I began by asking what would happen if you did not make it 
home tonight. Accidents happen all the time. The bottom line is 
that if you do not have advance health care directives and 
power of attorney documents, chances are great that you will 
end up the subject of a guardianship. And if so, is anybody 
watching over your guardian?
    Thank you for the opportunity to testify.
    [The prepared statement of Ms. Hollister appears as a 
submission for the record.]
    Chairman Klobuchar. Well, thank you very much. That was 
very interesting testimony, and helpful. I guess I will start 
where we ended here with you, Ms. Hollister, and just ask you 
if you think this has improved things. Are there actual 
statistics? It sounds like Florida--which we all know has a 
major population of seniors, many of them from Minnesota who 
like to go down there for the weather. Do you have numbers to 
show that there was improvement with that coming in?
    Ms. Hollister. That is one of the challenges that we do not 
have----
    Chairman Klobuchar. You probably did not have a baseline.
    Ms. Hollister. No. 1, not a baseline, and the technology 
that is available is not able to capture--we can tell you 
anecdotally that the courts have reported that there is a 
decrease similar to the words, I guess, of the Texas judge that 
now they know they are being inspected. And so anecdotally we 
know. But to facts and figures, the technology exists, but we 
do not have the resources to implement.
    Chairman Klobuchar. And then the public data base that you 
talked about, what is on there exactly? The credentials or 
the--what is that?
    Ms. Hollister. It lets the public as well as the judges 
know that a professional guardian's licensure is current, so 
that means that they have passed their credit and criminal 
history, they have maintained their CEUs, their continuing 
education, passed the State exam, their bond is current, and 
that they could be appointed on a case.
    Chairman Klobuchar. And it sounds like--and maybe we will 
go to some of the other people, to you, Ms. Karp. I think the 
statistics that Ms. Brown brought up, that only nine States do 
the criminal background checks, and so this must be a little 
more advanced in some of the other States. Or do you have any 
opinion of what other States are doing?
    Ms. Karp. My sense really is--oh sorry. I mostly know about 
what is in their statutes, and it is very surprising to me. I 
believe it is only 13 States require the background checks. We 
do not even have an idea how many of them are actually doing 
them, what systems they have, how they are paying for them, 
because there is a cost for them. So I do not think we have a 
picture of what the reality is. We just know what laws are on 
the books.
    Unfortunately, in many cases the guardianship laws in 
general that are on the books are great. There are monitoring 
requirements. There are a lot of due process requirements. But 
it is really where the rubber meets the road. How is it being 
implemented and is anyone really investigating? And with very 
few resources, in many cases they do not seem to be.
    Chairman Klobuchar. So is that why--maybe you, Ms. Karp, 
and Ms. Holtz could chime in, Mr. Baldwin. Is that why that 
Ramsey County program we talked about where they do the e-
filing--I am trying to think of how you--I am sure there are 
legislative changes that can be made. We have some ideas here 
that we are working on. But does the e-filing--I would guess 
with the trigger system, maybe it is a more efficient way of 
catching these things than having a court monitor every single 
thing. I do not know if one of you wants to--the court gets 
involved after there is a trigger, or someone does.
    Ms. Holtz. Madam Chair, members, it is important to 
remember with the e-filing that it is only for conservators in 
Minnesota, so it is only looking at financial accounts. It does 
not take into account any of the guardianship and the things 
that actually happen to the person. But I think it has got 
potential to do that with flags that could be written into a 
software program for the same thing.
    Chairman Klobuchar. OK. Ms. Karp?
    Ms. Karp. And if I could add, I think one of the beauties 
of it--my understanding, at least when it was developed 
initially in Ramsey County--was developing the software itself 
was not that expensive, in the area of $50,000. The problem 
most courts have is that they do not have the personnel to 
monitor, to actually read the reports and do any verification 
and visit. So the benefit of this is it really could save 
dollars because of the automated feature. And so then when the 
red flags do pop up, that is when we could put our human 
capital into really investigating the cases, but we can have 
those automatic red flags popping up in every case because of 
the automation of it.
    Chairman Klobuchar. Mr. Baldwin, the legislation that we 
are working on would allow for State courts to assess and 
improve their practices and procedures for appointing and 
monitoring the guardians. We based this idea to some degree on 
a court improvement program for child welfare. Could you tell 
us is there any information about how these court improvement 
programs have been beneficial?
    Mr. Baldwin. Yes, I think the Court Improvement Program for 
Abused and Neglected Children, as I indicated earlier, has been 
widely accepted as being effective. First of all, they had 
several national summits that brought together State teams that 
were charged with creating State individual plans. These were 
interdisciplinary teams that returned home with an action plan 
to work not only in the courts but with the social service 
agencies to improve the processing of those cases which 
included improving the laws, improving court practices and 
procedures, and creating a forum for collaboration.
    So there is a good history, I think, behind how that has 
worked, so it is, I believe, an exceptionally good model for 
the program you are talking about, and we believe that would be 
a very effective way to proceed.
    Chairman Klobuchar. Very good. We will be working with you 
moving forward.
    Ms. Brown, I know that the GAO has issued several reports 
over the years. You mentioned them in your testimony. Since 
issuing these reports, what changes have you seen in the way 
that State courts oversee guardianship procedures? And do you 
believe that the conditions have worsened for those because of 
budget constraints across the country for those involved in 
guardianship? I was just thinking we know--I think the number 
of seniors in our State are doubling by the year 2030. Maybe I 
used those stats 10 years ago, but clearly we are seeing--what 
did we call it?--the ``silver tsunami'' that there is going to 
be a lot more seniors, and I would think that the needs to make 
sure that we are monitoring these effectively are going to 
increase. Ms. Brown?
    Ms. Brown. When we did this most recent report, one of our 
tasks was to look back and see what kind of changes the States 
that we had looked at earlier had made, and I think the bottom 
line there is the changes were in fits and spurts. States are 
picking up one idea that they think is good, or they are making 
a couple changes and then the next year making a few more 
changes. But the idea of having a set of good practices or a 
set of standards for courts to follow I think is something that 
can be really helpful in a situation like this where we have so 
many different situations because these are State-administered 
courts.
    Chairman Klobuchar. Very good. Mr. Baldwin, do you want to 
add something? Then I am going to turn to Senator Franken.
    Mr. Baldwin. Yes, I would just add to that I think this is 
an excellent example of where impetus can be provided by 
introduction of Federal funds. I know that everyone----
    Chairman Klobuchar. Federal legislation.
    Mr. Baldwin. Yes, right.
    Chairman Klobuchar. And maybe some funds.
    [Laughter.]
    Mr. Baldwin. I know everyone says that, but what the States 
and the courts many times are in need of is that spark, sowing 
that seed. There are plenty of good ideas that are out there, 
and they need that little impetus to get started, and then the 
momentum builds. I think then you would see some significant 
improvements.
    Chairman Klobuchar. I agree. We saw that with everything 
from domestic abuse with the VAWA bill and that it did training 
and other things. We see it with everything from seat belt 
rules that have crossed the States, but just there is still 
something to setting some standards our federally. Even if they 
are suggested standards, that can make a difference, and then 
tying hopefully pilots to them and other things that we can try 
out. So it just puts it in a bigger way for the other court 
systems to look at. Thank you.
    Senator Franken.
    Senator Franken. Thank you, Madam Chair, and I want to 
commend you for convening this hearing and for raising 
awareness on these issues and for your suggestion of pilots, 
which is a way of getting programs started without across-the-
board funding around the country.
    Many Minnesotans work very hard every day to ensure that 
our seniors receive the care that they need and deserve, and 
those people, I believe, are unsung heroes.
    Unfortunately, we have recently been reminded of instances 
of elder abuse and that they still occur, and obviously that is 
unacceptable. And that is why I am planning to introduce 
legislation to expand the long-term care ombudsman program to 
serve seniors in the home and community-based setting, in both 
of those.
    Ms. Holtz, this is where the grilling starts. As 
Minnesota's long-term care ombudsman, do you see an opportunity 
for ombudsmen to have more involvement in protecting vulnerable 
seniors both in nursing facilities and at home?
    Ms. Holtz. Absolutely, and I think we have an obligation as 
more and more people state that they want to remain in their 
homes and in their communities. So, yes, we have great 
opportunities and an obligation for it.
    Senator Franken. Now, all these recent reports of abuse in 
the State guardianship system demonstrate how important it is 
for seniors to have explicit rights and protections written 
into the law. Minnesota has a home care bill of rights, as you 
mentioned, to protect seniors who receive home care services, 
and recently passed a bill of rights to address some of the 
abuses in the guardianship context. What can we all learn from 
Minnesota's experiences with these bills of rights?
    Ms. Holtz. You know, we had good success in 2009 getting 
the bill of rights into legislation, and actually I want to 
give credit publicly to MAGIC. That is the trade association in 
Minnesota that looks at--it is the Minnesota Association for 
Guardianship and Conservatorship, and they really had all of 
these rights listed already. And when it was suggested that it 
be put into law, actually some people had questions about it 
because that makes it a little stricter, and then you have to 
enforce it.
    But we came together and we got them into law, and I think 
one of the things that does, even if you do not have enough 
funding for enforcement and monitoring, it gives people 
information, it gives people the power to know that they have 
choices and they have rights. If they are involuntarily 
discharged from home care or if they are facing abuse from a 
guardian, they know that they have rights in the law. They can 
call our office. They can call others. So it is a first step. 
It has to be followed by enforcement and monitoring, but it is 
a good standard to have. And I believe with some of these pilot 
projects we can do a great service working together across the 
Nation to look at either some standardized bill of rights or 
just the idea that every State should have a bill of rights for 
people.
    Senator Franken. And not only does the person who--the 
senior, say, understand these rights, but also their family 
members, et cetera.
    Ms. Holtz. Correct.
    Senator Franken. And that makes a difference.
    Ms. Holtz. Absolutely. Absolutely.
    Senator Franken. Ms. Karp, in your testimony you mentioned 
the importance of identifying local models that can provide 
best practices for the rest of the country. In Hennepin County 
in Minnesota, which the Chair was the chief prosecutor of, the 
local adult protective services program screens guardians and 
provides them with ongoing training to make sure they are 
acting in the best interest of seniors and other vulnerable 
adults.
    The legislation I was discussing just now with Ms. Holtz 
recognizes the importance of adult protective services programs 
and encourages more coordination between adult protective 
services and the ombudsman program. Do you agree that there is 
a role for adult protective services and the ombudsman to play 
in protecting seniors from maltreatment by guardians?
    Ms. Karp. Absolutely, and we know that adult protective 
services sometimes is called in to investigate a case when 
there is no guardian and there is abuse, and then they identify 
the fact that the person does no longer have the capacity to 
make decisions for themselves, and they may be the ones to 
initiate or trigger a guardianship which can be protective. So 
that is one very important role they can play.
    On the other hand, when we have a guardian appointed and 
then there is some evidence that there is abuse by the 
guardian, adult protective services can be brought in to 
investigate, and that can lead to sanctions or removal of the 
guardian.
    So on many fronts, adult protective services plays a key 
role. Similarly, the ombudsman, you know, is the other very 
important State entity that really is charged with protecting 
people who may not be able to speak for or protect themselves. 
And with elder abuse, we know that a multidisciplinary 
approach, whether it be through multidisciplinary teams or task 
forces, is really the way to go because we need expertise from 
multiple agencies and professions. So I would totally agree.
    Senator Franken. Thank you.
    Ms. Holtz, as I mentioned, the vast majority of people who 
work in the elder care field do a great job, and I commend 
them. But a few bad actors is all that it takes to undermine 
confidence in the system. I recently read an article in the 
Minneapolis Star Tribune about a lawyer who had been disbarred 
because she lied to her clients and mismanaged their cases, but 
who was still appointed to be a guardian for dozens of 
incapacitated adults. We should not be entrusting our seniors 
to someone like that, obviously, so my bill would establish 
quality assurance standards for home and community-based 
service providers. This would give seniors and their families 
information about whether a home care worker has received a 
background check or has been trained.
    Would standards like this help protect our seniors?
    Ms. Holtz. Absolutely, and we need more of that, and we 
need more transparency. Even with the background checks that 
take place in Minnesota, consumers do not get the information 
about a misdemeanor or some offense that took place years ago 
that allows the person to still go through the process. So we 
need all of that. Your language in your bill would be 
absolutely necessary and very good. It would prevent a lot.
    Senator Franken. Thank you. My time is up.
    Thank you, Madam Chair.
    Chairman Klobuchar. Thank you very much.
    Senator Blumenthal.
    Senator Blumenthal. Thank you, Senator Klobuchar, and thank 
you all for being here, especially the folks who have come from 
Minnesota, whose Senators are doing great work on this issue. 
We really appreciate their leadership, and it is no accident 
that they are both here today, because, speaking very 
seriously, they have really championed this cause, as you know. 
It is just supremely important to all of us around the country 
who have any contact in this area; whether it is through law 
enforcement or just plain citizens, children, parents, friends, 
and neighbors, all are affected.
    One of my quandaries here is what really is the barrier or 
barriers, the major barriers, to information sharing. Obviously 
there are privacy protections. There are institutional 
obstacles, State, Federal, courts, governments, and so forth. 
So maybe I can ask each of you what are the three major 
information-sharing barriers when it comes to background checks 
or principally the qualifications and bona fides of people who 
serve in this critical relationship of trust and stewardship 
with people whom they know, some they do not know. So maybe we 
can go down the line and ask each of you to comment on that.
    Ms. Brown. I think you mentioned one of the most important 
ones, and that has to do with the challenges with data sharing 
and technology. And one of the things we are finding in many 
different areas--I do some work in child abuse protections as 
well, and we saw two things again and again, one being 
challenges with sharing data because of the systems, the other 
being challenges with sharing data because of concerns about 
privacy. I think there is a real fear among some organizations 
that sharing information about individuals would be 
detrimental, and so maybe some really important information 
does not get shared.
    And the third piece you also mentioned, and that is the 
collaboration across different organizations. These are 
multifaceted problems, and trust and support across the 
community organizations is always a challenge.
    Senator Blumenthal. Ms. Holtz.
    Ms. Holtz. I think you would lose a lot of those barriers 
if you have the consent of the individual or their 
representative. Our office has a very unique part in the 
Federal law that states we are not mandated reporters, and that 
is because when Congress enacted this law decades ago, they 
wanted one place where seniors could go and share any kind of 
information and know that it would not be shared without their 
consent. But we almost always have the consent of them if we 
are working with adult protection and other systems to get it 
going.
    To answer your broader question, though, we need a national 
system. We need a system, a data base, or a registry so that 
the bad apple that gets fired in Alabama cannot move up to 
Minnesota and do the same thing because we did not know about 
it occurring in another State. So we need a national registry 
or a national data base.
    Senator Blumenthal. Rather than just State systems that 
share information with each other.
    Ms. Holtz. Absolutely. You still need the State systems 
that share, but we are seeing too many of these things 
occurring where people move around from State to State. They 
prey on the victims.
    Senator Blumenthal. Thank you.
    Ms. Karp. I guess the first one I want to stress--and this 
is something that the GAO has now repeated in, I think, three 
reports over the last 8 years--is the Social Security 
Administration representative payee program, the VA fiduciary 
system, and the State court guardianship systems all frequently 
serve the same people, and yet there are no systems for them to 
talk to one another. And, in particular, Social Security has 
always been extremely concerned that the Privacy Act bars them 
from sharing the information. On the other hand, everyone knows 
that if one of those three entities has identified a bad apple, 
you know, shouldn't we be sharing that with the others? Because 
why should someone be removed as a Social Security rep payee 
and still be appointed by the State court to serve as a 
guardian and have control over the finances? So that is a big 
barrier, and we need to really clear up that Privacy Act issue 
and those other barriers.
    Second, I think within States we have a lack of 
coordination. We at AARP Public Policy Institute looked at 
criminal background check screening in home care and the pilot 
project in long-term care, and one of the issues has been that 
a lot of different State agencies do background checks on the 
same individuals, and they are not coordinating, and that is 
wasting resources. So if we had different State agencies 
working together, we could save repeated checks; we could share 
information; we could have a tiered system that makes sense. So 
coordination within the State.
    And then, finally, I think just the fact that we lack staff 
to do all of these things, we lack staff at the courts; we lack 
staff at APS; we lack staff at the long-term care ombudsman. 
There is only so far we can go on screening people when we do 
not have the people to administer the systems and to look and 
make sure we are keeping the bad apples out.
    Senator Blumenthal. But even without staff, which requires 
resources and money, you are saying--and others have 
confirmed--that some of the institutional or legal barriers 
are--not easily, but at least they are alterable?
    Ms. Karp. It would appear to be, and I know that the VA is 
definitely making some strides to try to coordinate, and so I 
do not see why we cannot have more of that across----
    Senator Blumenthal. The VA is making those efforts, but 
most of the beneficiaries or most of the people who are in 
guardianships would be in SSA. Is that correct?
    Ms. Karp. Probably more----
    Senator Blumenthal. I think the GAO report makes that 
point.
    Ms. Karp. Yes.
    Mr. Baldwin. I think the points already made are very good 
ones, and I might expand on your question just slightly to 
speak from the courts' perspective. One of the things which is 
somewhat of an institutional barrier to all of this, not just 
the sharing of information, is that courts are primarily--in 
the overwhelming majority of cases they deal with, reactive 
entities. If a court decides that a plaintiff is entitled to 
some money and then orders the defendant to pay money, they do 
not then monitor whether or not the defendant is paying the 
plaintiff money. They rely upon the defendant to come back to 
court if he is not being paid the money.
    If you take that mind-set, in most of what the court does, 
they do not have in place systems or staff or anything else to 
monitor, keep up with, investigate, report on, share 
information with and so forth. So anytime you have a category 
of cases--many times in the family area--that requires the 
court to do something that is out of sync with what its normal 
institutional requirements are, it means creating new systems, 
creating new ways of doing things, changing mentalities, and 
more expenditures of money. And so I think that from a court's 
perspective that is fundamentally something that is dealt with 
on a piecemeal basis, but it is why things lag behind and take 
longer to be corrected.
    Senator Blumenthal. Thank you. My time has actually 
expired, so, Ms. Hollister, I do not know whether----
    Chairman Klobuchar. If you want to ask another question, 
that is fine.
    Senator Blumenthal. No, I just want to give Ms. Hollister a 
chance to answer the question that has already been asked. I 
did not want to cut you off.
    Ms. Hollister. Well, I appreciate that. In my experience, 
what everybody has said has held true for me as well. The only 
thing that I would add quickly is the problem that we see, 
ironically, is the technology, that everybody has different 
systems, and so to get everybody's system to talk to each other 
actually can be a stumbling block, and that would be the only 
point I would want to add.
    Senator Blumenthal. Thank you.
    Thank you, Madam Chair.
    Chairman Klobuchar. Very good.
    Senator Franken, do you have any additional questions?
    Senator Franken. No, I do not. Thank you, Madam Chair.
    Chairman Klobuchar. Well, very good. Well, I want to thank 
everyone because it has been incredibly helpful for all of us 
to hear the good things. I was thinking with my little story I 
told, the bad story of the girl and the trustee case, in fact, 
the one that caught the problem was a guardian. And so we know 
that there are guardians that do good work every day. But we 
also know, as we see, as I said, a doubling of our senior 
population, as we see limited resources on the State basis, we 
are going to have to do a much better job of inspecting and 
monitoring this situation and hopefully putting some better 
standards in place and learning from these best practices. So 
we will be introducing our legislation soon with Senator Nelson 
and Senator Kohl, and I just want to thank all of your for your 
good work in this area.
    I think we are going to leave the record open for a week, 
and I just want to--again, this has been incredibly helpful. 
The stories are heartbreaking. I know the victims' stories, and 
a number of them here are just as heartbreaking as the ones we 
heard today. As I noted, we want to include their stories in 
our record, and we want to thank you, and we will continue to 
work with you in the future to improve this system.
    Thank you very much. The hearing is adjourned.
    [Whereupon, at 3:40 p.m., the Subcommittee was adjourned.]
    [Submissions for the record follow.]

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