[Senate Hearing 115-672]
[From the U.S. Government Publishing Office]


                                                     S. Hrg. 115-672

			ABUSE OF POWER: EXPLOITATION OF OLDER 
			AMERICANS BY GUARDIANS AND OTHERS 
                               THEY TRUST

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

                                HEARING

                               BEFORE THE

                       SPECIAL COMMITTEE ON AGING

                          UNITED STATES SENATE

                     ONE HUNDRED FIFTEENTH CONGRESS


                             SECOND SESSION

                               __________

                             WASHINGTON, DC

                               __________

                             APRIL 18, 2018

                               __________

                           Serial No. 115-16

         Printed for the use of the Special Committee on Aging

[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

        Available via the World Wide Web: http://www.govinfo.gov
        
        
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                    U.S. GOVERNMENT PUBLISHING OFFICE                    
35-280 PDF                  WASHINGTON : 2019                     
          
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                       SPECIAL COMMITTEE ON AGING

                   SUSAN M. COLLINS, Maine, Chairman

ORRIN G. HATCH, Utah                 ROBERT P. CASEY, JR., Pennsylvania
JEFF FLAKE, Arizona                  BILL NELSON, Florida
TIM SCOTT, South Carolina            KIRSTEN E. GILLIBRAND, New York
THOM TILLIS, North Carolina          RICHARD BLUMENTHAL, Connecticut
BOB CORKER, Tennessee                JOE DONNELLY, Indiana
RICHARD BURR, North Carolina         ELIZABETH WARREN, Massachusetts
MARCO RUBIO, Florida                 CATHERINE CORTEZ MASTO, Nevada
DEB FISCHER, Nebraska                DOUG JONES, Alabama

                              ----------
                              
                 Kevin Kelley, Majority Staff Director
                  Kate Mevis, Minority Staff Director
                  
                                CONTENTS

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                                                                   Page

Opening Statement of Senator Susan M. Collins, Chairman..........     1
Statement of Senator Robert P. Casey, Jr., Ranking Member........     3

                           PANEL OF WITNESSES

Nina A. Kohn, Associate Dean for Research and Online Education, 
  David M. Levy Professor of Law, Syracuse University College of 
  Law............................................................     5
Pamela B. Teaster, Ph.D. Professor and Director, Center for 
  Gerontology, Virginia Tech.....................................     6
David Slayton Administrative Director, Texas Office of Court 
  Administration, and Executive Director, Texas Judicial Council.     8
Denise Flannigan, Guardianship Unit Supervisor, Westmoreland 
  County Area Agency on Aging....................................    10

                                APPENDIX
                      Prepared Witness Statements

Nina A. Kohn, Associate Dean for Research and Online Education, 
  David M. Levy Professor of Law, Syracuse University College of 
  Law............................................................    30
Pamela B. Teaster, Ph.D. Professor and Director, Center for 
  Gerontology, Virginia Tech.....................................    33
David Slayton Administrative Director, Texas Office of Court 
  Administration, and Executive Director, Texas Judicial Council.    37
Denise Flannigan, Guardianship Unit Supervisor, Westmoreland 
  County Area Agency on Aging....................................    46

                  Additional Statements for the Record

The National Council on Disability...............................    50

 
ABUSE OF POWER: EXPLOITATION OF OLDER AMERICANS BY GUARDIANS AND OTHERS 
                               THEY TRUST

                              ----------                              


                       WEDNESDAY, APRIL 18, 2018

                                       U.S. Senate,
                                Special Committee on Aging,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:31 a.m., in 
room SD-562, Dirksen Senate Office Building, Hon. Susan M. 
Collins (Chairman of the Committee) presiding.
    Present: Senators Collins, Scott, Fischer, Casey, Nelson, 
Donnelly, Warren, Cortez Masto, and Jones.

    OPENING STATEMENT OF SENATOR SUSAN M. COLLINS, CHAIRMAN

    The Chairman. The Committee will come to order. Good 
morning.
    Last fall, the New Yorker magazine published a shocking 
story about a professional guardian in Nevada named April 
Parks. On Labor Day weekend in 2013, Ms. Parks allegedly showed 
up at the house of Rudy North and his wife of more than 50 
years and informed them that she had an order from the local 
court to ``remove'' them from their home, and that she would be 
taking them to an assisted living facility. Ms. Parks told them 
that if they did not comply, she would call the police.
    When the North's daughter came to visit later that 
afternoon, she thought that her parents might be out running 
errands. She called and stopped by several times over the next 
few days, even checking with local hospitals and her parents' 
landlord. It was not until four days later that she found a 
note on her parents' front door that read, ``In case of 
emergency, contact guardian April Parks.''
    Despite the fact that the Norths did not know April Parks, 
she had become their guardian. As such, she now had the 
authority to manage their assets, to choose where they lived, 
with whom they associated, and what medical treatment they 
received. April Parks allegedly sold their belongings and 
transferred their savings into an account in her own name. Mr. 
and Mrs. North had lost nearly all of their rights.
    After local reporting revealed this case in 2015, the court 
suspended Ms. Parks as the Norths' guardian. Over the past 12 
years, it is estimated that she had become a guardian for more 
than 400 wards of the court. Last year, a grand jury indicted 
Ms. Parks on more than 200 felony charges, including 
racketeering, theft, exploitation, and perjury. As that state's 
former Attorney General, our colleague on this Committee, 
Senator Cortez Masto, worked to improve the guardianship system 
there, and I very much look forward to hearing about her 
experience and the reforms that she instituted.
    Last Congress, this Committee held a hearing on financial 
abuse of older Americans by court-appointed guardians. At our 
hearing the GAO released a report that I had requested, along 
with former Ranking Member Claire McCaskill, on the prevalence 
of abuse by guardians.
    The report noted a lack of clear data on guardianship cases 
across the country. It evaluated the progress that several 
states were making to improve data and to increase oversight. 
The report also analyzed several recent cases of guardianship 
abuse.
    This updated GAO report built upon a previous study, 
released in 2010, which had found hundreds of cases of abuse, 
neglect, and exploitation and identified $5.4 million that had 
been improperly diverted.
    In a recent case in my own state, police charged a pastor 
in York County, Maine, with exploiting an incapacitated elderly 
woman. The pastor befriended this woman while he was 
volunteering at the assisted living community where she lived. 
According to police, the state determined the woman to be 
incapacitated and assigned her a guardian and a conservator. 
The pastor allegedly took the woman to her bank, withdrew money 
to have the locks changed on her former home, which had been on 
the market, and took down the ``For Sale'' sign.
    The police say that the pastor told the woman that he would 
help her return to her home, even though it was not equipped 
for the wheelchair access she required. He suggested his 
daughter could live with the woman to care for her. Police said 
that his goal was to ingratiate himself and have access to this 
woman's financial accounts and property. Fortunately, in this 
case the conservator, who was legally responsible for 
protecting the woman's assets, identified and reported the 
suspected criminal activity to the police.
    Unfortunately, as these cases in Nevada and Maine make 
crystal clear, financial exploitation by some guardians and 
conservators remains a real problem.
    These cases highlight shocking breaches of trust by people 
who obtained positions of power or influence over vulnerable 
seniors. An estimated 1.5 million adults are under the care of 
guardians, either family members or professionals, who control 
billions of dollars of assets. Guardianship, conservatorship, 
and other protective arrangements are designed to protect those 
with diminished or lost capacity, not to provide the 
opportunity for deception and financial exploitation.
    Ranking Member Casey and I, along with several members of 
this Committee, cosponsored the Elder Abuse Prevention and 
Prosecution Act, which became law last year. In addition to 
directing the Attorney General to develop model legislation for 
states to adopt, it provides the Department of Justice with 
greater tools for prosecuting criminals who take advantage of 
our seniors.
    Individuals can lose practically all of their civil rights 
when a guardian is ordered. It is a legal appointment made by a 
court, and in many cases it is justified and protects the 
individual. But we will also learn that in some cases the 
guardian exploits the vulnerable person, and it is often very 
difficult to reverse the guardianship. Some people are put into 
a guardianship arrangement when they should not be or when 
their guardianship should only be temporary and yet is made 
permanent.
    A study published last year by the American Bar Association 
found that ``an unknown number of adults languish under 
guardianship'' when they no longer need it or never did in the 
first place. There may be other, less restrictive, forms of 
protective arrangements that can provide temporary or specific 
decision-making support, while not eliminating other of the 
adult's rights. These other arrangements may reduce the 
likelihood that someone will take advantage of the senior or 
misuse their assets.
    Seniors who need assistance in managing their affairs 
should never be exploited and left destitute by an individual a 
court has appointed to protect them. I thank all of our 
witnesses for their cooperation and appearing before us today. 
And I now turn to our Ranking Member, Senator Casey, for his 
opening statement.

  OPENING STATEMENT OF SENATOR ROBERT P. CASEY, JR., RANKING 
                             MEMBER

    Senator Casey. I want to thank Chairman Collins for holding 
this important hearing today.
    As we know, as the Baby Boomer generation continues to age, 
guardianship increasingly touches the lives of many individuals 
and their families. However, guardianship does not only impact 
older Americans. It can affect adults of all ages, including 
people with disabilities.
    While guardianship is supposed to be protective, and might 
sometimes be necessary, it can also bring a loss of rights. 
That is why it is imperative that we get it right.
    As Chairman Collins mentioned, in recent years, the media 
and national organizations have highlighted cases where 
guardians have abused, neglected, or exploited a person subject 
to guardianship. We have a sacred responsibility to ensure that 
no one loses their house or their life savings as a result of a 
court-appointed guardian.
    As we will hear today, some states have taken efforts to 
improve guardianship, but it is also clear that much more work 
needs to be done. For instance, we do not even have basic data 
on guardianship itself. We do not know how many people are 
subject to guardianship, who their guardians are, if a guardian 
has been thoroughly vetted, and how many people are possibly 
being abused or neglected by their guardians. We should be able 
to agree that finding answers to these questions is the least 
we can do to protect our loved ones.
    And that is why I am pleased that today's hearing will be 
the first in a two-part series of Committee hearings on this 
issue and that guardianship will be the subject of the 
Committee's annual report. I very much look forward to 
examining this issue and discussing how Congress can do its 
part to ensure individuals subject to guardianship are 
protected and that their well-being is considered first and 
foremost.
    So, again, thank you to Chairman Collins for holding this 
hearing and thank you to our witnesses for lending both your 
time and your knowledge and your expertise on this critical 
issue. Thank you.
    The Chairman. Thank you very much, Senator Casey.
    I want to acknowledge Senator Cortez Masto and Senator 
Jones who are here today, and I know that Senator Fischer is on 
her way because we both just left a meeting. There are many 
today. But we hope there will be others who join us. We now 
turn to our witnesses.
    First we will hear from Professor Nina Kohn, the associate 
dean for research and online education and professor of law at 
Syracuse University School of Law. Through her research on 
elder law and her important work with the Uniform Law 
Commission, Professor Kohn has been a leader in advancing the 
reform of guardianship law in working to protect our seniors 
from abuse.
    Next we will from Dr. Pamela Teaster, the director of 
Virginia Tech's Center for Gerontology. Dr. Teaster is 
recognized nationally as an expert on guardianship and elder 
abuse, and she has published extensively in these areas.
    Our third witness will be David Slayton, the administrative 
director of the Texas Office of Court Administration, and the 
executive director of the Texas Judicial Council. He was 
instrumental in the development of guardianship reform 
legislation that was enacted by Texas in 2015, and he continues 
to be directly involved in reform work through his oversight of 
the state's Guardianship Compliance Pilot Project.
    Finally, I will turn to our Ranking Member to introduce our 
witness from the Commonwealth of Pennsylvania.
    Senator Casey. Thank you, Madam Chair. I am pleased to 
introduce Denise Flannigan. Denise is from New Stanton, 
Pennsylvania, which is in Westmoreland County in the 
southwestern corner of our state. Denise is the Guardianship 
Unit supervisor for the Westmoreland County Area Agency on 
Aging, where she has also served as a protective services 
investigator. Before transitioning to help older Pennsylvanians 
seven years ago, Denise worked with at-risk youth and with 
their families. Denise's agency participated in a conversation 
with my staff last year and expressed concerns about the 
guardianship system. That conversation served in part as the 
impetus of the Committee's current work on this issue. I cannot 
thank Denise and the Westmoreland County Area Agency on Aging 
enough for bringing this issue to our attention.
    I look forward to hearing Denise's experience on the ground 
in Pennsylvania, so thanks, Denise, for being here, and I thank 
everyone at the Area Agency on Aging for all of your help and 
their help. Thank you.
    The Chairman. Thank you very much.
    We will start with Professor Kohn.

  STATEMENT OF NINA A. KOHN, ASSOCIATE DEAN FOR RESEARCH AND 
  ONLINE EDUCATION, DAVID M. LEVY PROFESSOR OF LAW, SYRACUSE 
                   UNIVERSITY COLLEGE OF LAW

    Ms. Kohn. Thank you very much, Chairwoman Collins, Ranking 
Member Casey, and Committee members, for this opportunity to 
speak with you today. My name is Nina Kohn. I am a law 
professor at Syracuse University College of Law, where my 
research focuses on elder law, elder abuse, and decision-making 
by people with diminished cognitive capacity. My work in this 
area actually began as a legal aid attorney representing 
victims of elder abuse, and I now serve as the reporter for the 
Uniform Guardianship, Conservatorship and Other Protective 
Arrangements Act.
    My testimony today will focus on the primary problems 
facing the guardianship system, the key reforms needed to curb 
abuse, and model legislation that has been developed to do just 
that.
    As a general matter, I see four primary problems with the 
U.S. guardianship system.
    First, some people are under guardianship who should not 
be.
    Second, many--indeed, probably most--people subject to 
guardianship are subject to more restrictive arrangements than 
they need.
    Third, a subset of guardians act in ways that are 
inconsistent with the rights of those they serve that insult 
the very humanity of those they serve. Now, sometimes this is 
intentional and malicious. Sometimes it is negligent. Sometimes 
it is simply that the guardian does not understand their role.
    Finally, existing systems and rules often unintentionally 
create incentives that exacerbate these problems.
    So to address these problems, state-level law reform is 
needed as guardianship is governed by state law. Fortunately, 
there are some very straightforward reforms that could have 
substantial systemic impact.
    First, states need to provide very clear guidance to 
guardians. Most guardians are lay people. To do their best, 
they need to know what is expected of them, what they are to 
consider when making decisions on behalf of an individual 
subject to guardianship. Clear guidance also makes it easier to 
hold the bad actors accountable. They cannot hide behind vague 
or confusing language.
    Second, states need to create systems that incentivize the 
use of limited guardianship and alternatives to guardianship. 
Unfortunately, states often do the opposite. It is easier for 
petitioners to seek and it is easier for courts to order full 
guardianships than limited ones.
    Third, states need to increase monitoring of guardians. 
Currently, monitoring is typically anemic, and the ability to 
monitor is generally limited to under-resourced courts.
    Fourth, states must ensure that systems for guardians' fees 
do not reward bad behavior.
    Consistent with this need for reform, as Chairwoman Collins 
mentioned, the 2017 Elder Abuse Prevention and Prosecution Act 
requires the Attorney General to publish model legislation 
relating to guardianship to prevent elder abuse. I am pleased 
to report today that such model legislation exists now, that 
the Uniform Law Commission has adopted and finalized the 
Uniform Guardianship, Conservatorship and Other Protective 
Arrangements Act, and that that act addresses each of the 
challenges I have identified.
    The act itself was drafted by a committee of commissioners 
from ten states and participants from organizations 
representing divergent interests, including guardians and 
judges, older adults and people with disabilities, and family 
members devastated by abuse. Together, this inclusive, 
nonpartisan, expert-informed group drafted an act that garnered 
strong support from participants despite their divergent 
interests.
    The act provides clear decision-making standards for 
guardians. It incentivizes limited guardianships over full 
ones, including by making it harder to petition for full 
guardianships than limited ones. It limits the ability of 
unscrupulous guardians to drain assets by charging unreasonable 
fees by, for example, requiring the courts to consider the 
market value of the services actually rendered. And it creates 
new mechanisms to monitor guardian behavior at minimal cost to 
the public by leveraging people interested in the welfare of 
the individual subject to guardianship.
    Specifically, absent good cause, courts must require 
guardians to notify the individual's family and friends of 
certain suspect actions or major events in the individual's 
life. This enables family and friends to act as an extra set of 
eyes and ears for the court. The act also creates workable 
mechanisms that allow lay people to alert the court to 
potential abuses.
    In addition, the act represents a modern, person-centered 
approach to guardianship that is sensitive to the rights of 
people with disabilities and their families. In short, I think 
it is a smart and fiscally responsible model for the states, 
and its widespread enactment will bring about the reform 
necessary to curb abuse.
    Thank you so much for your time, and I look forward to your 
questions.
    The Chairman. Thank you for your testimony.
    Dr. Teaster.

STATEMENT OF PAMELA B. TEASTER, PH.D., PROFESSOR AND DIRECTOR, 
             CENTER FOR GERONTOLOGY, VIRGINIA TECH

    Dr. Teaster. Chairman Collins, Ranking Member Casey, and 
members of the Committee, I am Pamela Teaster, professor and 
director of the Center for Gerontology at Virginia Tech and 
proud fellow of the Gerontological Society of America and the 
Elder Justice Coalition. I am deeply honored to be here today 
and grateful for the Committee's focus on this serious, ongoing 
problem of the exploitation of older Americans committed by 
guardians and others whom they trust.
    To frame my remarks, I draw from the analogy of sheep, 
wolves, and sheepdogs, as discussed by Lieutenant Colonel Dave 
Grossman. As you know, most people in our society are decent, 
kind, productive people, and they do not hurt each other except 
by accident or extreme provocation. Most are unaware or 
unsuspecting of their vulnerabilities when entrusted to a 
protector acting in the name of beneficence.
    The good guardians, the good agents under powers of 
attorney, representative payees, and all the good families and 
friends are the sheepdogs. The wolves are intentional predatory 
guardians who exploit vulnerable persons without mercy.
    In Florida in 2016, Judy Reich wrote of Elizabeth Savitt, 
who became a paid professional guardian when the family could 
not come to a decision about their father's finances. Ms. 
Savitt liquidated everything from the victim, charged over 
$65,000 in guardianship fees during a 6-month period, and also 
during that period did not allow the family to see their father 
at all.
    Fortunately, there are selfless, wonderful guardians, and 
they are the sheepdogs. They even recognize when an individual 
needs supported decision-making or that guardianship is not 
needed at all. The Virginia Public Guardian & Conservator 
Program became guardian for a patient at a mental hospital and 
moved him to an assisted living facility. Over time, and 
visiting, the public guardian realized he was capable of 
managing his own affairs and incurred a new capacity 
assessment, including an attorney, to bring a restoration of 
rights proceeding on his behalf that was successful.
    In theory and in practice, an older adult unable to make 
decisions for herself should be better off with a guardian or 
an attorney in fact, than without one. But, too frequently, the 
fate of people under guardianship is poorly monitored in 
sufficient, meaningful, and diligent ways. This inattention 
threatens to unperson them, leaving them open to exploitation, 
abuse, and neglect, and protections already in place, but that 
are not well implemented, are not useful.
    In 1987, the Associated Press published a special report, 
``Guardians of the Elderly: An Ailing System,'' for which a 
team of reporters from around the country documented problems 
with due process, where, tragically, older people were 
railroaded into guardianship. Ironically, 30 years later, an 
article by Rachel Aviv, published in the New Yorker that you 
talked about, Senator Collins, sounded some of the same themes: 
guardians ignored the needs of protected persons, warehoused 
them in facilities providing poor care, charged unreasonably 
high compensation for services never rendered, and isolated 
people from their families.
    Problems lie in the implementation and incentivization of 
the laws and in whether they create the right systems to 
encourage the desired behavior. Despite estimates that some 1.5 
million adults are under guardianship, as you said, Senator 
Casey, in 2018 not one single state in the country can identify 
its people under guardianship--incomprehensible in the 
Information Age--and one that makes it impossible to have an 
appropriate level of accountability. Mechanisms put in place in 
order to establish it, to document its execution, and to 
facilitate its revocation are impeded by not knowing the very 
people it serves.
    System reformation can and should take the form of greater 
clarity and training when persons assume the role of guardian 
ad litem and of guardians themselves; deeper considerations of 
appropriateness and scope of appointment; bonding; meaningful 
insertion of person-centeredness and supported decision-making; 
limited orders; reasonable, appropriate, and timely monitoring 
post establishment; constant consideration of the restoration 
of rights; and zero tolerance for the pockets of collusion and 
corruption that exist around this country among actors in the 
system. The courts should institute restrictions and/or 
enhanced scrutiny when one guardian has more than 20 protected 
persons under his or her care. Left unchecked, these problems 
open the door for abuse, neglect, and exploitation, about which 
we know very little.
    Now is the time for a system that acts in the name of 
beneficence, non-maleficence, and justice, and preserves 
autonomy wherever possible to demand and receive adequate 
resources. As wolf, guardianship undermines and destroys the 
lives of older adults and their families--for generations. 
System implementation reforms are prescient and possible. 
Guardians who abuse, neglect, or exploit older adults should 
receive enhanced penalties for their crimes. And, again, 
persons under guardianship should enjoy supported decision-
making whenever possible and have their rights restored in part 
or totally with all deliberate speed.
    Should we choose to do otherwise, we are no respecter of 
persons. We unleash predatory guardians, the wolves, with no 
mercy on the unsuspecting, on the vulnerable. We negate the 
actions of the sheepdogs and mechanisms in place to bolster 
them. When the public continues to permit inadequate 
guardianship services and oversight, we unperson, we 
disrespect, and we perpetuate a system that remains a 
backwater, broken, ailing, and a mess, unconscionable.
    Thank you.
    The Chairman. Thank you very much, Professor.
    Mr. Slayton.

  STATEMENT OF DAVID SLAYTON, ADMINISTRATIVE DIRECTOR, TEXAS 
              OFFICE OF COURT ADMINISTRATION, AND 
           EXECUTIVE DIRECTOR, TEXAS JUDICIAL COUNCIL

    Mr. Slayton. Good morning, Chairwoman Collins, Ranking 
Member Casey, and members of the Committee. My name is David 
Slayton, and I am the administrative director of the courts in 
Texas.
    Let me start with a story. Jeannie was an 84-year-old woman 
when dementia began to get the best of her. After a successful 
career, Jeannie had amassed a significant estate, but had no 
children to assist her in her later years. After she lost 
mental capacity, a court appointed her a guardian, her nephew, 
to protect her and her estate. Jeannie's guardian promptly sold 
her homes and placed her into a nursing home and failed to 
visit regularly.
    Instead, Jeannie's guardian began spending from her estate. 
First it was small purchases like a new refrigerator or a 
monthly credit card payment. Then the gifts of $5,000 to 
$10,000 to family members began, but soon the withdrawal of 
nearly $90,000 in cash, unexplained, occurred. Shortly, 
Jeannie's estate was gone.
    Such is the plight of far too many individuals who are 
placed under guardianship. But this is not supposed to happen.
    In Texas, as in other states, courts are charged with 
closely screening guardianship proceedings, beginning at the 
point where guardianship is sought and lasting throughout the 
life of the individual under guardianship. The courts do this 
by requiring regular reports from the guardian about the well-
being of the individual, inventories of the assets and the 
estate at the inception of the guardianship, and detailed 
accounting reports about the revenue and expenditures from the 
estate.
    In Texas, there are just over 50,000 active guardianships, 
some of which were established decades ago. These 50,000 
individuals under guardianship have estates that total an 
estimated $4 to $5 billion. In most of our counties, the cases 
are handled by non-law-trained judges who are not equipped with 
specialized staff to assist them in the monitoring process. 
Without adequate staff, judges are asked to serve in the role 
of judge, social worker, law enforcement, and accountant. This 
situation could not have been more dire.
    In a review of just over 27,000 cases in our state, our 
agency found that 43 percent of the cases did not have the 
required reports, meaning that the court was unaware of the 
well-being of the individual or how the guardian was managing 
the finances of the estate. We also found that over 3,100 
individuals had died under guardianship without the court's 
knowledge.
    The Texas judiciary has been working diligently to address 
this issue through resources to courts and through statutory 
changes. Beginning in 2015, the Texas Judicial Council 
recommended statutory changes to require attorneys and judges 
in guardianship cases to ensure that there were no alternatives 
to guardianship available to avoid the guardianship in the 
first place; to consider the ability of the ward to make 
decisions about where they live; to provide for a regular 
review of the necessity of continuing the guardianship; and to 
create a new alternative to guardianship called ``supported 
decision-making,'' the first state in the country to do so.
    The Judicial Counsel also sought and obtained pilot funding 
to provide resources to judges to monitor the guardianship 
cases. After two years of success with the staffing resources, 
the judiciary sought to expand the monitoring statewide at a 
cost of $2.5 million per year. After being widely supported by 
the legislature, the funding was vetoed by the Governor, who 
indicated he wanted to give the reforms an opportunity to take 
hold before funding additional staff. We are hopeful that we 
can obtain this funding in the next legislative session as the 
resources are greatly needed.
    Also in 2017, the Judicial Council sought legislation to 
require family members and friends to register as guardians 
with the state, undergo criminal background checks, and 
participate in online training about their responsibilities 
prior to their eligibility to be appointed as guardians. After 
finding that 98 percent of all issues were in guardianships 
where family members or friends were the guardian, this request 
was signed into law and becomes effective on June 1st of this 
year.
    Texas is not alone in its desire to improve monitoring of 
guardianship cases. The Conference of Chief Justices and the 
Conference of State Court Administrators have worked 
collectively to make improvements in this area. However, one of 
the limitations in making these improvements is the need for 
funding to provide adequate resources to monitor the cases. 
That is why the state courts were ecstatic about the passage of 
the Elder Abuse Prevention and Prosecution Act, which 
incorporated the Court-Appointed Guardian Accountability and 
Senior Protection Act. Signed into law by the President on 
October 18, 2017, this law provides authorization for grants to 
state courts for guardianship activities. The state courts urge 
Congress to appropriate sufficient funds to fully implement the 
provisions of that act.
    We are instructed to ``honor our fathers and mothers--and 
the least of these''; however, some of the practices involved 
in guardianship neither honor nor protect the elderly and 
incapacitated. We are working diligently in Texas to correct 
those practices and look forward to continuing this essential 
work moving forward.
    Thank you for your time today, and I look forward to 
answering any questions that you might have.
    The Chairman. Thank you, Mr. Slayton.
    Ms. Flannigan.

 STATEMENT OF DENISE FLANNIGAN, GUARDIANSHIP UNIT SUPERVISOR, 
            WESTMORELAND COUNTY AREA AGENCY ON AGING

    Ms. Flannigan. Good morning, Senator Collins, Senator 
Casey, and members of the United States Special Committee on 
Aging. Thank you for this opportunity to provide testimony 
about the very important topic of guardianship of older adults. 
I am Denise Flannigan, and I am the guardianship supervisor for 
the Westmoreland County Area Agency on Aging located in western 
Pennsylvania.
    A guardianship often originates through a substantiated 
protective services investigation where the alleged 
incapacitated older adult is found to be either the victim of 
abuse, neglect, financial exploitation, or self-neglect and 
does not have a responsible caregiver. Our AAA serves as 
guardian of the person, guardian of the estate, or both when it 
is necessary to reduce the risk to the older adult. This 
happens when there are no lesser restrictive measures and no 
other appropriate family or friends available and willing to 
serve.
    Our Guardianship Unit has the capacity to serve eighty 
``consumers''--our term for the older adults in our care. Our 
team has four care managers with a maximum caseload of 20 
consumers each. We have two case aides, a fiscal officer, and a 
nurse. This small caseload is required due to the intensive 
case services that a guardian provides.
    Our team functions as a close-knit group, sharing relevant 
information regarding all of the consumers in our care, as we 
are prepared to be informed decision-makers available 24 hours 
a day. Our main duties, while permitting as much autonomy as 
possible when serving as the guardian of person, are to be 
responsible for making decisions regarding health and well-
being of the consumer. We make decisions related to health, 
safety, and quality of life, ranging from where they will get 
their groceries to end-of-life decisions.
    As the guardian of the estate, we are responsible for all 
financial matters. The range of responsibilities includes 
managing their income while serving as fiduciary, budgeting, 
paying all of their bills, as well as responsibly managing 
their principal assets, including real estate, investments, and 
savings, while being sure to make prepaid burial arrangements.
    The majority of the consumers we serve are over the age of 
60. Our consumers reside in a variety of settings throughout 
the county including skilled nursing facilities, personal care 
homes, community group homes, apartments, and single-dwelling 
homes. They live in the least restrictive environment based on 
the consumer's level of care, their financial situation, and 
their wishes.
    As the guardianship supervisor, I also provide guidance and 
support to others regarding guardianship issues within our 
county. Often a newly appointed family guardian may have a 
question regarding reporting requirements or a basic question 
related to securing benefits on behalf of the consumer. As the 
point person for guardianship, I have the unique position to 
learn of actions or lack of actions by others serving as 
guardian. At times, this information involves allegations of 
abuse, neglect, or financial exploitation of the consumer by 
the guardian.
    Several years ago, a guardianship agency serving older 
adults in our county and surrounding counties came to my 
attention due to allegations of neglect and financial 
exploitation. Although the investigations could not be 
substantiated, this agency and their methods of operation 
remained of concern to me. Over the course of the next year, 
additional concerns came to my attention. The themes of the 
allegations centered around lack of responsiveness to making 
medical decisions and mismanagement or neglect of assets. It 
was not clear in the beginning, if this was a situation of a 
new guardianship agency growing too big too fast or if there 
were designing persons serving in the agency. At the time I had 
no formal oversight of them and was not privy to their records 
or anything other than what they had discussed with me.
    In 2015, I was approached by a local attorney representing 
a family member of an older adult who was under the 
guardianship of this particular guardianship agency. I will 
refer to the agency as ``D.'' The attorney explained that the 
family has had numerous issues with ``D.'' He had petitioned 
the court to remove ``D,'' and he was requesting that our AAA 
agree to serve as the successor guardian. With my previous 
issues and concerns related to ``D,'' along with the 
information that was presented by this attorney, our agency 
agreed to accept the appointment.
    As the successor guardian, we had access to a detailed 
review of the previous years of activity of the prior guardian. 
It became very clear that there had been significant 
mismanagement of assets. Their lack of cooperation and lack of 
acceptance in responsibility led us to petition the court for 
an Exceptions to Accounting and a Request for a Surcharge.
    Situations like this are able to happen because of a 
combination of factors. First and foremost, guardianship is a 
system serving our most vulnerable older adults, those found to 
be incapacitated by the court, often with a lack of family and 
friends, who are essentially at the mercy of the guardians 
appointed to protect and care for them and their assets.
    The guardian is appointed to be the No. 1 advocate, the 
responsible fiduciary, and the substitute medical decisionmaker 
working in the best interest of the person for whom they are 
guardian. With our current lack of background checks, training, 
oversight, and funding, it is possible for the older adult to 
be neglected or exploited by the very entity appointed to 
protect them.
    Thank you for this opportunity to provide testimony on this 
very important topic of older adults and guardianship. The 
Westmoreland County Area Agency on Aging is committed to 
serving older adults in our community and believes that 
providing excellent guardianship services should be an 
expectation, not an exception. We are hopeful that this 
attention into guardianship issues helps in establishing the 
additional safeguards needed to protect all older adults under 
guardianship.
    The Chairman. Thank you very much for your testimony.
    A common concern that we have heard expressed at our 
previous hearing and again today is the lack of accountability 
and oversight of guardians. An issue, though, that I would like 
to explore is how people get to be appointed guardians in the 
first place, because while there may always be a bad apple, 
unfortunately, it seems to me that there are flaws in the 
system for appointing guardians in the first place. So I would 
like to start with Professor Kohn, then Professor Teaster and 
Mr. Slayton, and I have a different question for you, Ms. 
Flannigan.
    Are the courts doing enough to vet people who are 
professional guardians? I am not talking about family members 
in this case.
    Ms. Kohn. Thank you for the question, Chairman Collins. Yes 
and no. Some courts are doing a good job. Some courts are not 
doing as good a job. Part of the issue is how well do you vet 
the person. Do you ask how many other people they are serving? 
Do you require them to disclose, for example, crimes showing 
dishonesty, crimes showing abuse? If they have gone through 
bankruptcy, the court should know about that. And in many 
cases, those basic disclosures are not even required. So before 
we even get to the issue of whether the state should spend 
money on background checks--and in many cases that is a best 
practice--there is some low-hanging fruit here in terms of 
requiring the guardian to disclose things that we know to be 
risk factors.
    Relatedly, though, the courts need to be very careful about 
overriding people who actually know the individual and moving 
too quickly to that professional guardian. As a general matter, 
people who know the individual, know their preferences, know 
their values, know what makes them happy, know what makes them 
tic are going to be better guardians. And, unfortunately, I 
think courts often see a family feud, throw up their hands, and 
say, ``OK, we are not dealing with these people. Let us just 
get someone who is professional.''
    Now, that is understandable, but it is often not in the 
interest of the individual, who may be best served by having 
that family member, even if that family member does not get 
along with someone else.
    So there is a lot more to be done, and there is some very 
low-hanging fruit that we can pick.
    The Chairman. Thank you.
    Professor Teaster?
    Dr. Teaster. Thank you for the good question. I think 
another place--I will tag off what Professor Kohn has said, and 
I totally agree with what she has said. I think another really 
important place is the job of the guardian ad litem. This 
individual acts as the eyes and ears of the court, and that 
report is central to the decision that is being made. Some of 
them, again, are absolutely fabulous. They go visit. They do 
all the right things. They write a wonderful report that the 
court uses in a substantive way to make the decision. But if 
that is shirked, if that is not done well, we do not go see the 
person who may become the protected person, then that is 
already a real problem in trying to get the guardianship 
instituted. So that is another way. So important vetting.
    Then one other thing I would say is more often other 
experts make comments about the individual. Some people take 
that ER seriously--and they should--and others do not. 
Kentucky, for example, has a very nice system of a multi-team 
where a social worker, a medical professional, and a 
psychologist check every individual to suggest that, other 
states not as much. But that front-end part, as Dr. Kohn said, 
is absolutely critical to establishing that in the first place. 
Is it really necessary? Often it is not.
    The Chairman. Thank you.
    Mr. Slayton?
    Mr. Slayton. Madam Chair, it is a great question, and I 
will tell you a little bit about what we do in Texas, which I 
think has been working pretty well. We are one of the few 
states who do this, but we regulate professional guardians. 
This started in 2007, and there are currently in Texas about 
440 certified guardians. They handle about 10 percent of the 
caseload, 5,000 cases.
    In order to become a private professional guardian, which 
is what we call them in Texas, they have to meet certain age, 
experience, and education requirements. They also have to pass 
an examination, and they have to have a criminal background 
check to prove that they have no disqualifying offenses. This 
is an ongoing criminal background check that is done via 
fingerprints so that if they do have a criminal arrest or 
something comes up, then immediately we are notified and can 
contact the courts to let them know that that professional 
guardian has come into contact with law enforcement.
    The other thing that we have done which has proven to be 
very successful is, as part of that regulation, we have 
enforcement authority. So our office receives complaints about 
private professional guardians. We investigate those 
complaints. This is probably one of the largest places we are 
receiving complaints right, is within the private professional 
guardian area. So family members who have concerns can complain 
to us. We investigate those. And our commission which oversees 
them can levy penalties against them, remove their ability to 
provide the services as private professional guardians.
    And the last thing I would say that has been mentioned 
already is we require them to report to us annually how many 
guardians they have under their appointment. So, obviously, if 
they are appointed in one county by a court to 5 cases, they 
may not know that the other counties around there have also 
appointed them to 10, 15, 20 cases. So they are required to 
annually submit the number of cases they have to the state and 
let us know exactly where those cases are and who they are 
overseeing.
    So those are some things that we have found to be very 
effective.
    The Chairman. Thank you all very much. My time has expired, 
so I will yield to Senator Casey.
    Senator Casey. Thank you, Madam Chair.
    Denise, I will start with you with regard to the issue you 
raised about another agency where the Westmoreland County Area 
Agency on Aging became the successor guardian. You indicated 
that this particular guardianship agency serving adults in 
southwestern Pennsylvania came to your attention after it 
allegedly neglected and exploited individuals under its care. 
And, as I mentioned, you indicated your agency became the 
successor.
    You mentioned the one major issue is mismanagement of 
assets. Tell us more about your experience with that agency, 
and walk us through the problems if you can.
    Ms. Flannigan. Yes, Senator Casey. Actually, when I first 
came in contact with this guardianship agency, it was in a 
guardianship hearing where they were appointed as a new 
guardian agency for an individual under guardianship, and I was 
quite pleased to know that they were going to be able to 
operate because we have few guardianship agencies in our 
county.
    So when I first started hearing some unresponsiveness 
issues that they had to family, the fact that they were not 
visiting those under their guardianship, and then there were 
also some issues of nonpayment, I actually reached out to them 
as part of my job as the guardianship supervisor for the county 
and was assisting them and attempting to perhaps educate them 
on what their duties were.
    It became clear to me, though, that as they continued to 
have more difficulties, more issues, I was getting calls from 
different skilled nursing facilities about nonpayment, 
different family members, actually even calls from the consumer 
reporting serious issues, is actually why we agreed to accept 
the case when it came to us from the attorney to be the 
successor guardian. And, of course, we saw a lot more after 
becoming that successor guardian.
    We learned that even though our consumer was eligible for 
veterans' benefits for the 22 months she had been under the 
guardianship, they had failed to complete the application, 
costing her approximately $25,000. The personal care home where 
she initially was residing, where she was happy, where she was 
doing well, she ended up with a $16,000 negative balance there 
and was asked to leave. She went into another personal care 
home where at the time of our appointment, it was $15,000 
negative balance.
    So, again, we were privy to a lot more information at this 
point. We learned also that she had had a home where two years 
prior during the appointment, it had a value that, because of 
their neglect, because they had not gone in, they did not pay 
the insurance, it was up for tax sale at the time of our 
appointment. We believe it cost her approximately $21,000 in 
depreciation.
    And the list goes on and on, and probably one of the most 
difficult things for us to believe is that they were taking 
guardianship fees and attorney fees during this time. And the 
family certainly had a lot of issues that they reported to us 
as well.
    I wanted to say that I approached them--I did not really 
have authority over them, but I asked them for some 
understanding as to why they were doing the things that they 
did. They eventually stopped talking to me and advised me to 
speak with their attorney, who eventually stopped talking to 
me, which is why we ended up petitioning the court, and I am 
happy to say that they did sign a judgment note. We had quite a 
bit of information on them, and they have been repaying our 
consumer. So that is the first part of your question.
    Senator Casey. I will ask another one. Just for 
clarification, what was the time interval between the time you 
started learning of some of the problems and the time the 
petition process was completed and you were named the successor 
guardian? I just want to get just a general sense of how much 
time.
    Ms. Flannigan. We actually did not petition. The family 
petitioned.
    Senator Casey. OK.
    Ms. Flannigan. And their attorney approached us. I was not 
aware of the ongoing problems at that point. I thought they 
were rectified. I had assisted them on some things, and I think 
that is one of the issues with guardianship, that often there 
are no family members, there are no advocates, so these things 
are able to continue, and I am afraid to know how many times 
this happens in our state and in every state.
    Senator Casey. So it can go on for months before there is 
any kind of resolution or remedy.
    Ms. Flannigan. Certainly.
    Senator Casey. I know we are out of time. The second part 
was really about a broad question, part of which I think you 
already answered. But why do you think in this case you had the 
level of exploitation and neglect?
    Ms. Flannigan. Well, I think it goes back to the bigger 
issue that we do not have safeguards in place. We have our most 
vulnerable older adults. Their authority we know is very great 
in a guardianship order, and if you have designing people or 
even people who lack knowledge or, you know, there are no 
certifications necessary at this point, and it is a combination 
of all those factors that really puts our older adults at risk.
    Senator Casey. Thank you very much.
    The Chairman. Thank you, Senator.
    Senator Cortez Masto?
    Senator Cortez Masto. Thank you. And thank you so much for 
having this hearing today and for all of you being here and all 
of the good work you are doing, because we know this abuse 
occurs, and we need to make sure we are out there fighting for 
and protecting not just seniors but minors as well, anybody who 
comes into this protected class that we should be looking at.
    I am sure that you all have read or are aware of the New 
Yorker article about some of the abuses occurring in Nevada 
prior to 2013. But since that time, the state has drastically 
overhauled its laws to make sure that these abuses are ended, 
something that was not reported in the New Yorker article, 
unfortunately.
    So I wanted to talk about this because the overhaul of our 
guardianship laws began when I initially introduced as AG 
legislation. As Attorney General in the state of Nevada, you 
get to introduce legislation, and so before I termed out, I had 
a bill package ready to go and pre-filed it, and the 
legislation really was specific about requiring private 
professional guardians to be licensed and bonded, created 
oversight of them by the Commissioner of Financial 
Institutions, a separate, outside of the court's oversight 
body, as well as laying out a strict fiduciary duty standard 
that they must follow. That bill, unfortunately, the Attorney 
General who came in after me decided he did not want to 
introduce that bill. Knowing that, I reached out to my 
colleagues in the legislature, the Speaker of the House at the 
time and another Assemblyman, and asked them to introduce my 
bill and they did.
    So during our legislation session in 2015, when I was no 
longer AG, it still went forward, and Assemblyman Mike Sprinkle 
introduced it as A.B. 325. But during that time, that bill was 
passed, but along with that we realized more needed to be done 
in Nevada to address this issue because, as you have heard from 
the horrific stories, so much was happening.
    So on June 8th of 2015, our Supreme Court commissioned a 
study to study--it was the Commission to Study the 
Administration of Guardianships in Nevada Courts, and it was 
created. In September 2016, it issued its final report, right 
here, and there are 14 recommendations for new court rules and 
16 recommendations for legislative changes to the NRS. Those 
legislative changes were adopted. Those court rules were 
adopted. And so much of what we have done was an overhaul, a 
complete overhaul, and everything you are talking about today 
was what the commission studies and we implemented.
    So I applaud you for what you are doing. I welcome you to 
take a look at the reports and what we have done, either as a 
model, or tell us additional things that we should be doing.
    So let me also talk about the questions here that I have, 
and let me maybe start with Dr. Kohn. We talked a little bit 
about this, but how important is oversight of guardianships to 
making sure that we can prevent some of these abuses from 
occurring? And by doing that we are not just relying on the 
court oversight but an independent body, which I have heard 
today. That seems to be key here, correct?
    Ms. Kohn. Absolutely. The court has a tremendously 
important role in monitoring guardianship. There needs to be an 
annual report. Guardians should have to do a person-centered 
plan so that the court can figure out whether what the guardian 
is doing is consistent with what the guardian said they were 
going to do. And the courts need to be open to communications 
from individuals that suggest abuse, even if those 
communications do not come on a petition format or the right 
piece of paper. You need ways that informal grievances can be 
brought to the court. But in order to have those informal 
grievances, you need people to have notice that they have a 
right to make that informal grievance.
    So it is incredibly important that at the time of the 
initial order, the individual subject to guardianship and any 
family or friends who can reasonably serve as that extra eyes 
and ears of the court not only know that there has been a 
guardian appointed, but know what powers that guardian has been 
given and know how they can alert the court to potential abuse, 
to a change in the person's need, to other problems that may be 
occurring. And if we can provide that notice, then we can have 
these additional monitoring abilities without expense to the 
court and can prevent the guardianship in part from further 
isolating the individual subject to guardianship and from 
further estranging the family.
    Senator Cortez Masto. Thank you. And I know my time is 
running out, but I want to highlight something else and ask 
you--because one of the things that Nevada did as part of its 
guardianship reform legislation in 2017--that I do not think 
has been replicated anywhere else--is that it actually went 
further than a right to counsel for protected persons to create 
the requirement of counsel. This means that as soon as a 
petition for appointment of a guardian is filed, the court is 
automatically required to appoint them a legal aid attorney 
specializing in guardianship law unless they already have that 
attorney. And this is paid for by a fee on recording documents 
with the court.
    What is your opinion on Nevada's requirement of counsel? Do 
you think that is----
    Ms. Kohn. Nevada's requirement is the best practice. All 
people who are the respondent in a guardianship proceeding 
should have an attorney there to represent their wishes, and 
that is critical. It is not just their interests. That is what 
a guardian ad litem does, their best interests. But each 
individual who is going through that process deserves and I 
think is entitled to an attorney who can voice their 
preferences, whether that be a preference about whether there 
should be a guardianship, whether that be a preference about 
what powers should be included in that guardianship, or whether 
that is a preference about who serves: ``I want my daughter 
Mary, and I do not want my daughter Betsy.''
    Senator Cortez Masto. Great. Thank you. I know my time is 
up. Thank you very much.
    The Chairman. Thank you.
    Ms. Flannigan, in my opening statement I described an awful 
case that is pending in the State of Maine where a pastor 
allegedly took advantage of an incapacitated elderly woman 
living in an assisted living facility, and you would think--it 
is understandable why she would trust this individual since he 
was clergy and you would not expect that someone in that 
position would exploit someone that vulnerable, but apparently, 
allegedly, that is what happened in this case.
    In this case it was the guardian who acted and alerted 
police of the suspected criminal activity, and the guardian did 
exactly what you would want the guardian to do. But there may 
be other cases where there are not guardians that are involved.
    In your work have you identified warning signs that family 
members or neighbors could look out for if they want to keep 
their loved ones safe from becoming victims?
    Ms. Flannigan. Senator Collins, I think that that is a 
joint effort between--through our AAA, Area Agencies on Aging, 
through our Protective Services side, as well as the 
Guardianship Units. Certainly there are designing people 
everywhere, and they are quite skilled. And, quite frankly, the 
more of an estate a person has, certainly the more vulnerable 
they are to that.
    So our county actually reaches out to our community through 
our Elder Abuse Task Force, and it is a combination of 
individuals that we meet on a monthly basis. And we have our 
hospital personnel, we have attorneys, we have people from all 
walks actually working with older adults, from skilled nursing 
or ombudsmen, and we certainly have a group effort to educate 
people of warning signs. And anybody can make a report at any 
time to our office, and we are obligated to investigate that.
    The Chairman. Thank you.
    Professor Kohn, just last week Maine's State Legislature 
took steps to enact the Uniform Guardianship legislation that 
the commission approved last year, and we have heard what 
Nevada has done. Could you give us an update on how many states 
have acted to implement this model legislation or substantial 
parts of it?
    Ms. Kohn. Thank you, Chairwoman. So Maine will be, it looks 
like, most likely the first state to enact the model 
legislation. Notably, the Uniform Act, you are going to have an 
amazing guardianship system if your Governor signs because it 
has now sailed through the House and the Senate in Maine.
    The Uniform Act, which I had the honor of serving as 
reporter for, is really the fourth revision of provisions that 
were originally in the 1969 Uniform Probate Act. And so this 
new version really tries to change the incentives. The rules 
were not that bad, but the incentives were not there. And so 
really, as Professor Teaster pointed out, the implementation 
was in large amount the problem.
    So this particular act, now it looks like it is going to be 
introduced in at least four legislatures next session, but it 
is still really early, so we may get a lot more. There was a 
partial enactment already in New Mexico, but very minor, and 
they are going to come back and look at the full act next term, 
I understand. But Maine is taking the lead, and we are 
delighted.
    The Chairman. Well, as Maine goes, so goes the Nation, or 
so we hope in this case.
    [Laughter.]
    The Chairman. Thank you.
    Senator Casey?
    Senator Casey. I can go to a second or Senator Warren.
    The Chairman. Whichever you would prefer. Senator Warren?
    Senator Warren. Thank you so much. I am sorry to have to 
run in and out of hearings, but thank you. I am so glad to have 
a chance to be here, and thank you for holding this hearing, 
Madam Chairwoman and Ranking Member. And thank you to the 
witnesses for being here today.
    I want to talk about legal guardians for just a minute. A 
legal guardian is supposed to look out for the best interests 
of the person they assist, and I am sure the vast majority of 
guardians do exactly that. But without proper monitoring, there 
are some guardians who take advantage of their special 
relationship in order to benefit themselves. I want to focus 
today on financial exploitation.
    Research has found that between 3 and 5 million older 
Americans are victims of financial abuse each year, costing 
about $36 billion annually. Guardians make up only a portion of 
that figure, of course, but with the access they have to 
accounts and records, they can do serious damage to someone's 
financial well-being.
    So I wondered if I could ask each of you just very briefly 
to describe the kinds of financial exploitation by guardians 
that you have seen in your work. And perhaps I could start with 
you, Professor Kohn.
    Ms. Kohn. Thank you, Senator Warren. Financial exploitation 
runs the gamut from outright theft to unreasonable fees. So I 
would consider it financial exploitation when an attorney who 
is serving as guardian charges their hourly rate for non-legal 
services. As a general matter, you should not be getting your 
hourly rate to go grocery shopping. And so there is a lot of 
exploitation out there that may not look like what we think of 
when we think of theft, but it is just as bad when it comes to 
draining the estate and leaving the person penniless.
    Senator Warren. That is a very important point. Thank you.
    Dr. Teaster?
    Dr. Teaster. Thank you for your good question. I have 
actually interviewed family members who have had their loved 
ones exploited by guardians, and sometimes individuals who feel 
like they have been exploited as well. A hallmark is the 
isolation of them, and the way that they get exploited in some 
ways is by driving the fees up in bizarre ways. For example, 
should anybody call to complain, they drive the fees, and the 
meter starts running. And they also start charging very, very 
high rates. I do not know what everybody's hourly rate would be 
here, but it will be exorbitant. That is one way they do it.
    And then because they own the estate--they have the estate, 
they simply can make charges against it because they have the 
ability to go into it.
    So those are some of the ways they do it. They falsify 
records, too.
    Senator Warren. Thank you. Thank you. Mr. Slayton?
    Mr. Slayton. Senator Warren, in my written testimony I 
included appendices that have some specific examples, but let 
me just give you a few.
    Having reviewed about 27,000 guardianship cases in Texas, 
you can imagine that on an almost weekly basis we find what 
would be considered exploitation, and just as the previous 
witnesses have testified, it is not always outright theft. 
Sometimes it is things where maybe the family members or 
friends do not understand that this is not their inheritance. 
This is money that they are supposed to be using to take care 
of the individual who is under guardianship. But let me give 
you a couple examples.
    We have seen gifts that were given to family members and 
friends of between $5,000 and $10,000, not generally a typical 
amount of a gift probably for an individual. We have seen, you 
know, unauthorized purchases of pickup trucks. When an 
individual who is in a nursing home who cannot drive any 
longer, obviously, that is not for their benefit.
    We actually have a missing airplane in Texas from an estate 
that was in the inventory, and it is no longer around, and we 
do not know where it is at.
    And then probably one of the largest ones is a direct 
withdrawal in cash of $90,000 from a bank account that was 
unexplained, and that was actually even disclosed to the court 
with no explanation.
    So these things, it goes from the smallest amounts to huge 
amounts and huge assets.
    Senator Warren. Thank you very much.
    Ms. Flannigan?
    Ms. Flannigan. I would have to agree. We have seen some of 
the same issues. In our level probably what we are seeing the 
most is the lack of care and maintenance of homes and listing 
homes and properly liquidating those assets. I think a lot of 
times we have certainly heard from different individuals under 
guardianship that they are just missing items, and sometimes 
these are family heirlooms. These are engagement rings. These 
are things that have both, obviously, value and personal value 
to individuals.
    Senator Warren. Thank you. You know, I am glad we are 
looking into what the Federal Government can do in this area. 
But financial institutions also have a role to play in stopping 
this kind of exploitation. It is why I am very proud of the 
credit unions in Massachusetts for taking it on themselves to 
try to address this problem. In March they launched a program 
called the ``Credit Union Senior Safeguard,'' and the program 
does two things: it requires front-line staff education on how 
to spot potential signs of senior exploitation; and it invests 
in serious consumer education efforts so that seniors 
themselves are better equipped to spot potential exploitation 
themselves.
    I see this as everyone has a role to play in stopping this 
abuse--the states, the Federal Government, and the financial 
institutions themselves. And I look forward to working with 
other members of this Committee to try to put an end to the 
exploitation of some of our most vulnerable citizens.
    Thank you, Madam Chair.
    The Chairman. Thank you very much.
    Senator Casey?
    Senator Casey. Thank you, Madam Chair.
    I wanted to start with Professor Kohn on the question of 
restoration of rights, which I know is a terribly difficult 
problem. Once a person is subject to guardianship, the 
restoration of rights is, unfortunately, extraordinarily rare. 
And we all worry that a person who might need a guardian at a 
specific time in their life may later regain capacity due to a 
medical recovery or because they have acquired the necessary 
knowledge or skills to make decisions. But, in that instance, 
it is almost impossible--and I hope I am not overstating that--
to regain their rights.
    So, Professor, if you could outline the barriers to the 
restoration of rights and some of the problems that are 
connected to that.
    Ms. Kohn. Thank you, Senator Casey. A couple of very 
important barriers to be aware of to restoration of rights.
    One is a lack of awareness of the right to pursue 
restoration or the process for doing so.
    Another is lack of access to assistance seeking 
restoration. This is unfortunately exacerbated to some degree 
by confusion within the bar and even among some judges as to 
whether an individual subject to guardianship has a right to an 
attorney to represent them to seek restoration. Spoiler alert: 
Both as a matter of ethics and constitutional process, due 
process, they do. But there is confusion there.
    And then a third barrier is opposition of guardians to 
restoration, you know, and Professor Teaster's work, among 
other work, suggests that most restorations are occurring with 
small estates. That makes sense if you think about the 
incentives guardians may have to continue the guardianship with 
a large estate. So in the Uniform Act, we incorporated a number 
of provisions designed to specifically chip away at these 
barriers. Those include:
    Requiring the person to receive notice and family members 
to receive notice of rights to restoration and how you pursue 
those rights, right at the outset, right when they get that 
order appointing the guardian;
    Creating mechanisms for lay people, short of a full 
petition, to alert the court as to changed needs;
    Placing limits on guardians' fees, a guardian's ability to 
charge fees to oppose restoration, because they may have a very 
significant conflict of interest there;
    Creating triggers for reconsidering the appointment;
    Providing a statutory right to counsel for this, even if 
that counsel may not be paid for by the estate, making it clear 
that a person does have a right to be represented by an 
attorney;
    And then, of course, it is important to make sure that the 
standard for getting out from under the guardianship is not 
somehow higher than the standard for getting the guardianship 
in the first place.
    So the standard should be if you could not impose the 
guardianship today, then the guardianship should not continue.
    Senator Casey. I wanted to ask you about that question of 
triggers. How would you envision that working or how has it 
worked? I am assuming the triggers would be pertinent to the 
court. A trigger would signal or activate the court to provide 
a review.
    Ms. Kohn. So I think the key there, Senator, is requiring 
that any communication to the court that gives rise to a 
reasonable belief that termination may be in order, any such 
communication should cause the court to consider termination. 
And where you have seen some problems is courts hiding behind a 
lack of formality. Well, I do not have to consider that because 
it did not come on the right piece of paper. So that becomes 
critical. And it is also important, I think, that as part of 
guardians' annual reports, they be required to identify whether 
or not the guardianship should continue, and that the guardian 
have an affirmative duty to notify the court if there has been 
a change in the person's condition or maybe their support 
system that indicates that guardianship may no longer be 
necessary, or at least a less restrictive form of guardianship 
may be in order.
    Senator Casey. I know we are almost out of time, but does 
anyone else on the panel want to comment on these issues?
    Dr. Teaster. I would like to second-seat Professor Kohn and 
talk just a moment about the annual reports and the mindset. In 
every annual report, in every assessment that should be done on 
the guardians--and they ought to be done at least yearly or a 
change in condition--the question of whether the 
appropriateness of guardianship should come up. And the review 
should always be that guardians should be working themselves 
out of a job. That is one of the things guardians should be 
doing. They should be supporting that individual and working 
themselves out of guardianship. That is not a presumption 
necessarily of what guardians do, but it should be part of what 
they do. Thank you.
    Senator Casey. Mr. Slayton?
    Mr. Slayton. Senator Casey, one of the things that our 2015 
legislation did that has not been addressed already--because 
everything that they have said we have done in Texas as well. 
But one thing that we did a little bit uniquely was we heard 
about individuals who maybe at the time the guardianship was 
established, say a full guardianship was appropriate. Let us 
just say it is a stroke victim who is completely incapacitated 
at the time. But what we know about stroke victims is that many 
times their condition improves, sometimes rapidly. And so one 
of the requirements when the doctor is evaluating their 
capacity, the doctor is required now by law to state under 
which timeframe they think they might improve. So, for 
instance, they may say that within 6 months we expect that they 
would improve, and what that requires then is for the court to 
then hold a hearing within 6 months to get them re-evaluated 
and determine whether or not the guardianship in its current 
form is still necessary. So that is one thing that we added 
because of that issue.
    Senator Casey. Denise? And then I am out of time--I am over 
time.
    Ms. Flannigan. May I answer?
    Senator Casey. Sure.
    Ms. Flannigan. In Pennsylvania----
    Senator Casey. Unless the Chair----
    The Chairman. It is all right.
    Ms. Flannigan. I did want to say that through the 
Administrative Office of Pennsylvania Courts, they have 
developed a tracking system, a guardianship tracking system 
that is actually being implemented this year, and I have been 
party to the development of it. It really does give one county 
the ability--that judge to be able to see what another county 
has under guardianship. It will enable everyone to communicate 
and see. It is something I believe that is going to make a big 
difference. And our guardianship reports now, the reports of 
the estate as well as the reports of the person, all have those 
kinds of questions on it, and the person--how many times have 
you visited the person under guardianship? Do you believe this 
should continue? And why should it continue?
    Senator Casey. Thanks very much, thanks for the extra time.
    The Chairman. Certainly.
    Senator Nelson?
    Senator Nelson. No; go ahead.
    The Chairman. OK. Senator Cortez Masto?
    Senator Cortez Masto. Thank you.
    As we have heard today as well, many people are in more 
extensive guardianships than necessary. They are in full 
guardianships when they should be in limited guardianships, 
right? And in Nevada, the legislature during its reform in 2017 
created a Protected Person's Bill of Rights. It is actually 
patterned after Texas'. But one of the things they did 
additionally was create an additional right outside of that, 
and that is the right of a protected person to age in his or 
her own surroundings or, if not possible, in the least 
restrictive environment suitable to his or her unique needs and 
abilities.
    So just a question for the panel. Do you think that by 
asking the court to consider the least restrictive setting 
possible for a protected person to live that this additional 
right would assist courts in determining an appropriate level 
of guardianship? And I will just open it up to the panel.
    Mr. Slayton. Senator, I will take a shot at that first. 
Absolutely. As you mentioned, one of the things that Texas law 
requires, we have a Ward's Bill of Rights in Texas. One of the 
things that was included in the 2015 legislation was a 
requirement that courts tailor the guardianship with regard to 
giving as much ability for the individual to determine their 
residence. You know, prior to that there was nothing specific 
in law that required that. So now courts are required to do 
that.
    In addition to that, the law in 2015 requires that the 
attorney who is filing the case, the application for 
guardianship, has to certify to the court that there are no 
other appropriate alternatives at all besides either full 
guardianship, limited guardianship, whatever they are seeking, 
that they have explored all of them and there are no 
appropriate alternatives.
    Then attorneys ad litem and guardians ad litem who are 
appointed by the court have to also make findings to the court 
that they have explored all appropriate alternatives--all 
alternatives and there are no appropriate alternatives that are 
least restrictive.
    And then, finally, the court has to find by clear and 
convincing evidence that there are no appropriate alternatives, 
including looking at the residence issue.
    So the goal was to try to make sure that every party to the 
proceeding is looking at all the alternatives, which there are 
11 in Texas, looking to see if there is a more appropriate 
alternative than a full guardianship.
    Senator Cortez Masto. Thank you.
    Ms. Kohn?
    Ms. Kohn. In addition to having the court consider the 
residence issue and the least restrictive alternative issue, it 
is also critical that that be part of the guardian's duties, 
that the guardian in making decisions for the person subject to 
guardianship be required to make the decision the person would 
make if able, unless that decision would cause some undue harm. 
Only then should you be devolving into a best interest analysis 
because really what you are trying to do is do what they would 
have done. And the Uniform Act spells that out, trying to make 
it a lot easier, you know, frankly for those well-intentioned 
guardians even, to do what is being asked of them. And it does 
very much what you are suggesting Nevada does. It provides 
guardians with very specific guidance as to how to make 
decisions about residential placement, recognizing that that is 
a hot-button issue because it has such an important impact on 
people's experience and what their life is like; but it also a 
hot-button issue because that is where we have seen some pretty 
flagrant abuses with cozy relationships between professional 
guardians and individuals in the real estate industry.
    Senator Cortez Masto. Thank you. Thank you very much.
    Oh, I am sorry. Ms. Teaster, did you want to comment?
    Dr. Teaster. If I may, thank you. One of the issues I would 
like to talk about, about the least restrictive alternative, is 
something that the State of Virginia did in its public 
programs. They instituted in law that all the public guardians 
create a values history on every person under guardianship, and 
that, too, would do just exactly what you are talking about in 
Nevada law and some of the rest of you, would drive them into 
using the wishes of the persons under guardianship and living 
in their preference from where they would like to live, so they 
are informed by law by the values of the individuals under 
guardianship.
    Senator Cortez Masto. Thank you. Thank you very much.
    The Chairman. Thank you, Senator.
    Senator Nelson?
    Senator Nelson. Thank you, Madam Chairman.
    I have seen guardianship work exactly as it should where 
the guardian steps in almost as a family member but someone who 
is on the outside. And then I have seen the worst. And I thank 
the Chair for calling this hearing to bring attention to the 
potential abuse. I think it is going to be incumbent upon our 
legal community specifically to underscore the ethical 
necessity of a guardianship. The problem is it is not always a 
lawyer that is appointed as a guardian. And from any one of 
you, from your experience, what do you think is the best that 
we could do other than get the word out about potential abuse? 
What is the best that we can do to protect the elderly?
    Dr. Teaster. I have two things: Get the data on who these 
people are, be able to know every person under guardianship and 
implement monitoring systems once we know who they are. Second, 
to create the appropriate and right accounting systems so that 
we can know and move them away from necessarily just the 
judges, because it is too much for them.
    Ms. Kohn. Excellent question. Thank you. I think, you know, 
the first order of business is making sure at the outset that 
people are not subject to more restrictive arrangements than 
they need, because then you do not create the potential to 
abuse that excessive appointment.
    So what does that mean? You have got to change the 
incentive so it is harder to get that full guardianship than 
the limited one. You have got to make real alternatives to 
guardianship. You know, the Uniform Act does that, for example, 
by creating a whole new option, an Article V, for a court to 
create a limited order in lieu of guardianship. If the person 
would otherwise qualify for a guardianship but you could meet 
their need with a single order without a stripping of rights, 
without an ongoing arrangement, it creates that option.
    I think it is critical that the person who is the 
respondent in the proceeding be there. The judge needs to see 
them. They need to be able to talk to them. There should be 
almost no case where a guardian is appointed for someone who 
has not been in front of that judge, and it is critical that 
you have independent assessments of this individual's needs, 
their functional needs not just their diagnosis, before a 
guardian is put in place. So that means, you know, a visitor, 
and in most cases, frankly, that means a professional 
evaluation by someone with training and experience in whatever 
the alleged limitation is. So if you have got someone who is 
alleged to have Alzheimer's, then the person doing the 
evaluation should have training and experience in assessing 
people with Alzheimer's. And if you get it right at the outset, 
then you have got less potential for abuse down the road.
    Mr. Slayton. Senator, Ms. Flannigan already mentioned this 
a little bit, but it is something that we have not talked very 
much about today, but the use of technology to assist us in 
this is something important.
    One of the things that we are working on in our state, of 
course, is registering everyone so that we will know who all 
the individuals under guardianship are, who their guardians 
are. But further than that, we are implementing technology that 
will require the annual reports, annual accountings, other 
documents to be filed electronically with the court so that, 
No. 1, we will know when the reports are not filed that are 
supposed to be filed, so we can provide reminders to the family 
members or friends or guardians, or whoever it may be, that you 
have got to report due. And then the court will know 
immediately when the report is not filed on time. That should 
be a trigger for the court to say, ``What is going on here?''
    It will also use some automation to be able to review the 
annual accountings to spot potential fraud. We are not the 
first--this is not the first industry to look for potential 
fraud and using algorithms to track those or a place where we 
can focus our efforts on those. And so I think the role of 
technology is important in making sure we can implement that in 
the best way possible, is really something we should be looking 
at.
    The Chairman. Thank you, Senator Nelson.
    I want to note that we had a number of other Senators who 
stopped by today to hear part of your testimony, including 
Senator Scott, Senator Donnelly, and Senator Fischer. I just 
wanted to note that for the record. There is a lot of interest 
in this.
    I want to thank all of our witnesses for your contributions 
to this important discussion about how we can better protect 
older Americans from exploitation by those in positions of 
power and trust. Guardianships, conservatorships, and other 
protective arrangements are designed to protect those with 
diminished or lost capacity. They should not provide an 
opportunity for deception, abuse, and financial exploitation.
    We are going to continue to work on this important issue, 
and you have added so much to our understanding. I am proud 
that Maine may well be the first state to implement the model 
law in this regard, and I hope that will inspire other states 
to look at this issue as well. And I hope our hearings will 
have that effect, too.
    I want to yield to Senator Casey for any closing thoughts.
    Senator Casey. Madam Chair, thank you for the hearing. I 
want to thank our witnesses. This is obviously both a 
complicated issue but an issue of great consequence to the 
people affected. So we are grateful you brought your insight 
and experience and expertise here, and we need to implement 
what we learned today and try our best to make it more of the 
norm rather than the exception that every state has the best 
possible standard. So we are really grateful for the 
opportunity to be with you. Thank you.
    The Chairman. Senator Cortez Masto, since you have done so 
much work in this area, I want to give you the opportunity for 
any closing thoughts as well.
    Senator Cortez Masto. Thank you. Thank you, Madam Chair, 
and thank you for holding this hearing and to all of you for 
being here. Clearly, there is still a lot of work that needs to 
be done, and I think with your voices, your support, and 
highlighting what is happening here with our older Americans in 
our communities and the exploitation is that first step in 
prevention and addressing the issue. So you have got my 
commitment to continue to work in this area as well, so thank 
you.
    The Chairman. Thank you.
    Committee members will have until Friday, April 27th, to 
submit questions for the record, so we may be sending 
additional questions your way.
    Again, I want to thank all of our witnesses and Committee 
members who participate in today's hearing as well as thanking 
our staff.
    This concludes this hearing.
    [Whereupon, at 10:57 a.m., the Committee was adjourned.]

   
      
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                                APPENDIX

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                      Prepared Witness Statements

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                  Additional Statements for the Record

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