[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
U.S. GOVERNMENT PRINTING OFFICE
71-059 WASHINGTON : 2011
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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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