[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
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HEARING
BEFORE THE
SPECIAL COMMITTEE ON AGING
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
SECOND SESSION
__________
WASHINGTON, DC
__________
APRIL 18, 2018
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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
__________
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
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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
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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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