    [Senate Hearing 115-745]
    [From the U.S. Government Publishing Office]

                                                           S. Hrg. 115-745

                      ENSURING TRUST: STRENGTHENING STATE
        EFFORTS TO OVERHAUL THE GUARDIANSHIP PROCESS AND PROTECT OLDER
                                   AMERICANS

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

                                    HEARING

                                   BEFORE THE

                           SPECIAL COMMITTEE ON AGING

                              UNITED STATES SENATE

                         ONE HUNDRED FIFTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                                 WASHINGTON, DC

                                   __________

                               NOVEMBER 28, 2018

                                   __________

                               Serial No. 115-22

             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
    37-591 PDF                  WASHINGTON : 2020

    --------------------------------------------------------------------------------------

                           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

                                  ----------

                                                                       Page

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

                               PANEL OF WITNESSES

    Cathy (Cate) G. Boyko, MPA, Senior Court Research Associate,
      National Center for State Courts, Williamsburg, Virginia.......     5
    Bethany Hamm, Acting Commissioner, Maine Department of Health and
      Human Services, Augusta, Maine.................................     7
    Karen C. Buck, Esq., Executive Director, SeniorLAW Center,
      Philadelphia, Pennsylvania.....................................     8
    Barbara E. Buckley, Esq., Executive Director, Legal Aid Center
      for Southern Nevada, Las Vegas, Nevada.........................    10

                                    APPENDIX
                          Prepared Witness Statements

    Cathy (Cate) G. Boyko, MPA, Senior Court Research Associate,
      National Center for State Courts, Williamsburg, Virginia.......    28
    Bethany Hamm, Acting Commissioner, Maine Department of Health and
      Human Services, Augusta, Maine.................................    41
    Karen C. Buck, Esq., Executive Director, SeniorLAW Center,
      Philadelphia, Pennsylvania.....................................    45
    Barbara E. Buckley, Esq., Executive Director, Legal Aid Center
      for Southern Nevada, Las Vegas, Nevada.........................    50

                      Additional Statements for the Record

    Closing Statement of Senator Susan M. Collins, Chairman..........    60
    Closing Statement of Senator Robert P. Casey, Jr., Ranking Member    60

                      ENSURING TRUST: STRENGTHENING STATE.
        EFFORTS TO OVERHAUL THE GUARDIANSHIP PROCESS AND PROTECT OLDER
                                   AMERICANS

                                  ----------

                          WEDNESDAY, NOVEMBER 28, 2018

                                           U.S. Senate,
                                    Special Committee on Aging,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 2:32 p.m., in
    room SD-562, Dirksen Senate Office Building, Hon. Susan M.
    Collins (Chairman of the Committee) presiding.
        Present: Senators Collins, Fischer, Casey, Gillibrand,
    Blumenthal, Donnelly, Cortez Masto, and Jones.

        OPENING STATEMENT OF SENATOR SUSAN M. COLLINS, CHAIRMAN

        The Chairman. The Committee will come to order.
        Good afternoon. Earlier this month, a former state
    legislator in Maine was convicted of carrying out one of the
    worst cases of elder financial abuse in our state's history.
    The man, who is also a securities agent, was found guilty of
    stealing more than $3 million from two elderly widows. While
    these women viewed the man as the protector of their accounts,
    in reality he actually preyed on their trust and vulnerability
    after their husbands died. Rather than protecting them, this
    individual slowly drained their bank accounts over a period of
    7 years, according to the court.
        Maine's Office of Securities found that the man used his
    position as a trusted financial professional and a close family
    friend to groom his victims in order to commit his crimes. He
    ingratiated himself with these families, assuming power of
    attorney, and becoming the trustee of their accounts. He used
    the funds under his control as his personal piggy bank,
    covering everything from travel and fine dining in the United
    States and Europe, to purchasing and renovating an expensive
    home in California's wine country.
        Maine plans to seek full financial restitution. The harm
    that this individual has caused to these women and to their
    families is, however, irreparable. This abuse, by a trusted
    advisor, is a crime that no individual or family should ever
    have to face.
        While appalling stories such as these remind us of the
    fraud that can be perpetuated against vulnerable individuals,
    there are also many stories of guardians and conservators who
    have protected seniors against such abuse, preserving both
    their dignity and their assets. When a pastor in Maine
    befriended an elderly woman under false pretenses at an
    assisted living facility earlier this year, it was her
    conservator who stepped in and protected her from precisely
    this type of exploitation. Before the pastor could steal her
    money and assets, the conservator notified the police and put a
    stop to the abuse. It is not difficult to imagine the harm that
    could have come without the intervention of this trusted
    guardian. We must do more to make success stories like this one
    the norm.
        Today our Committee is releasing a bipartisan report to
    help change the tide, implement reforms, and restore trust in
    guardianship. Titled ``Ensuring Trust: Strengthening State
    Efforts to Overhaul the Guardianship Process and Protect Older
    Americans,'' the report is the culmination of this Committee's
    year-long work investigating the guardianship systems.
        An estimated 1.3 million adults are under the care of
    guardians--family members or professionals--who control
    approximately $50 billion of their assets. Guardianship is a
    legal relationship created by a court that is designed to
    protect those with diminished or lost capacity. We have found,
    however, that in too many cases the system lacks basic
    protections, leaving the most vulnerable Americans at risk of
    exploitation and fraud.
        Throughout the course of the year, we have heard harrowing
    tales from families around the country who are struggling with
    abusive guardians. We also spoke with families who had
    heartening stories to share--of dedicated and faithful
    guardians stepping up to protect the assets of seniors with
    dementia and other conditions affecting their capacity. A good
    guardian can provide years of support for a protected
    individual--sometimes it is a disabled child--ensuring a full
    life directed, wherever possible, by the person's own choices
    and preferences. Once a guardianship is imposed, however, the
    individual's rights are removed, and oversight to protect the
    individual from abuse, neglect, and exploitation becomes
    critical.
        We have gathered during the past year much information,
    analysis, and recommendations from states, courts, and
    organizations representing older Americans and those with
    disabilities around the country. We have received more than 100
    comments identifying gaps in the system and, more important,
    offering solutions. We have found a pattern of barriers to
    proper oversight, and we have identified a need for greater use
    of alternatives to guardianship. We have found persistent and
    widespread challenges that require a nationwide focus in order
    to ensure the guardianship system works on behalf of the
    individuals it is intended to protect. The Committee's report
    outlines policy recommendations at local, state, and federal
    levels that would improve outcomes for Americans subject to
    guardianship.
        Many of these recommendations are reflected in legislation
    that the Ranking Member, Senator Casey, and I have authored,
    called the ``Guardianship Accountability Act.'' This bill would
    promote information sharing among courts and local
    organizations as well as state and federal entities, encourage
    the use of background checks and less restrictive alternatives
    to guardianships, and expand the availability of federal grants
    targeted at improvements in the guardianship system. I would
    invite all of our colleagues to join us in supporting this
    legislation.
        Today we will hear from states that are making progress at
    better protecting those placed in guardianship arrangements.
    The number of Americans aged 65 and older is projected to more
    than double from 46 million today to more than 98 million by
    the year 2060; therefore, the issue of ensuring strong
    guardianship oversight will only become more urgent in coming
    years. And as Commissioner Hamm well knows, Maine is
    particularly affected by this demographic change as the oldest
    state in the Nation by median age.
        Protecting older Americans from financial fraud and
    exploitation has long been one of my top priorities as Chairman
    of this Committee. From our toll-free fraud hotline to new laws
    such as SeniorSafe that encourage financial institutions to
    flag suspicious activity, our efforts to combat fraud and crack
    down on criminals who are always seeking new ways to steal the
    hard-earned savings of our Nation's seniors have produced
    results.
        On guardianship, the Committee's report uncovers
    significant challenges that remain. In our hearing today, we
    will examine the practical steps that can be taken to improve a
    system that is intended to help safeguard those who need it
    most.
        I am now pleased to turn to our Ranking Member for his
    opening statement.

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

        Senator Casey. Chairman Collins, thank you very much.
    Thanks for holding this hearing and for your work on these
    issues for many years.
        I am pleased that the Committee's 2018 annual report
    addresses this important subject matter.
        This report is the culmination of a year's worth of
    research and analysis and includes input from, as the Chairman
    said, over 100 stakeholders, advocates, representatives of the
    courts, and state officials. It is abundantly clear that
    something has to be done--as the title of the report suggests--
    to ``ensure trust'' in our guardianship system.
        While most guardians act in the best interest of the
    individual they care for, far too often we have heard horror
    stories--and that is probably an understatement--of guardians
    who have abused, neglected, or exploited a person subject to
    guardianship.
        As our report notes, there are persistent and widespread
    problems with guardianship around the country. For instance, we
    found deficiencies in the oversight and monitoring of
    guardians. We have also found that courts sometimes remove more
    rights than necessary by failing to consider less restrictive
    alternatives to guardianship. And, importantly, it is
    universally agreed upon that there is also a lack of reliable,
    detailed data to inform policymakers.
        This is simply unacceptable. We have a sacred
    responsibility to ensure that no one--no one--loses a house or
    life savings or is needlessly deprived of their rights because
    a guardian abused their power.
        Today I look forward to hearing about steps that states
    have taken to reform guardianship as well as the steps that
    must be taken to further improve the guardianship system.
        As Chairman Collins mentioned, we are releasing bipartisan
    legislation which will help states improve guardianship
    oversight and data collection. We look forward to receiving
    feedback on the bill so we can work together next Congress to
    pass legislation to improve guardianship all across our
    country.
        Guardianship is supposed to be protective. Too often, it
    has not been protective. We must do everything in our power to
    make sure we get it right all the time.
        Again, thank you, Chairman Collins, for holding the
    hearing, and thanks to our witnesses for lending your time,
    your expertise, and your knowledge at this critical time.
        Thank you.
        The Chairman. Thank you very much, Senator Casey.
        We will now turn to our witnesses. First, we will hear from
    Cate Boyko, who is the senior court research associate at the
    National Center for State Courts in Williamsburg, Virginia. She
    testified before this Committee at its 2016 hearing on
    guardianship when we first started getting into this issue. In
    her new role at the National Center for State Courts, Ms. Boyko
    has become a national resource on guardianship issues and
    opportunity for improved court oversight.
        Next I am delighted that we will hear from Bethany Hamm,
    the Acting Commissioner for the Main Department of Health and
    Human Services. Commissioner Hamm has served in the department
    for more than 30 years. Currently the Maine Department of
    Health and Human Services has legal guardianship and
    conservatorship relationships with approximately 1,300 adults.
    I look forward to your testimony this morning.
        I now will turn to our Ranking Member to introduce our next
    witness from the Commonwealth of Pennsylvania.
        Senator Casey. Thank you, Chairman Collins.
        I am pleased to introduce Karen Buck. Karen is from
    Philadelphia, Pennsylvania, as one of our witnesses today, but
    more importantly for purposes of today's subject matter, Karen
    is the executive director of the SeniorLAW Center, which is
    located in Philly. It provides legal services to older
    Pennsylvanians. It provides as well direct representation,
    referral services, advice, and many other services to help
    ensure that seniors have access to justice.
        In addition to her role at SeniorLAW Center, Karen serves
    in many leadership positions promoting access to justice
    itself, including her role as a member of Pennsylvania's
    Supreme Court Advisory Council on Elder Justice.
        We thank Karen for being here today. We look forward to her
    testimony. Thanks.
        The Chairman. Thank you.
        Next I would like to turn to Senator Cortez Masto to
    introduce another witness, and I want to also recognize the
    work that the Senator has done on this issue and that the State
    of Nevada has done, because your state has been a real leader.
        Senator Cortez Masto. Thank you. Thank you, Chairman
    Collins and Ranking Member Casey. And I so appreciate you
    holding this hearing on an issue that, as you well know, is
    very important to me, to Nevada, and to all of us. And I
    appreciate all of the work that you have done and this
    Committee has done on this report. Thank you.
        We are fortunate enough today to hear and have Barbara
    Buckley, who is not only a friend of mine but was one of the
    chief architects of these reforms on guardianship in the State
    of Nevada, and she helped create one of the most advanced
    systems in the entire Nation for protecting seniors from abuse.
    Barbara served as the Speaker of the Nevada Assembly from 2007
    through 2010, becoming the first woman in the state's history
    to hold this position. We are a state of firsts. She is
    currently executive director of the Legal Aid Center of
    Southern Nevada, which provides free legal assistance and
    representation to those who cannot afford an attorney.
        Barbara helped create the Legal Aid Center's Guardianship
    Advocacy Program which provides that representation to seniors
    and adults with disabilities under guardianship to ensure that
    adults' legal rights are protected. The right to counsel is a
    vital part of Nevada's new guardianship system and crucial to
    protecting those who are the most vulnerable.
        So welcome, Barbara, and thank you for being here. And,
    again, thank you for this important hearing, Madam Chair.
        The Chairman. Thank you very much.
        I also want to acknowledge the three other Senators who are
    here and may be returning: Senator Fischer, Senator Jones, and
    Senator Donnelly. And a special word to Senator Donnelly. He
    has been a terrific member of this Committee, and I just wanted
    to say that we will very much miss your service here. I know
    how deeply you care about issues affecting our older Americans,
    and I just wanted to personally thank you for your service on
    the Committee.
        Ms. Boyko, we are going to start with your testimony.

    STATEMENT OF CATHY (CATE) G. BOYKO, MPA, SENIOR COURT RESEARCH
      ASSOCIATE, NATIONAL CENTER FOR STATE COURTS, WILLIAMSBURG,
                                VIRGINIA

        Ms. Boyko. Chair Collins, Ranking Member Casey, and members
    of the Senate Special Committee on Aging, thank you for
    inviting me here to discuss the efforts to overhaul the
    guardianship process and protect older Americans. My name is
    Cate Boyko, and I am a senior court research associate at the
    National Center for State Courts. The National Center is a
    nonprofit organization with headquarters in Williamsburg,
    Virginia, whose mission it is to promote the rule of law and to
    improve the administration of justice in state courts and
    courts around the world.
        My areas of expertise include elder abuse and exploitation,
    and guardianship and conservatorship. Because terminology
    varies from state to state, we used generalized terms.
    Guardianship refers to those cases in which the court has
    appointed an individual to handle the medical and well-being
    issues of another person, while conservatorship refers to those
    cases in which an individual has been appointed by the court to
    manage the finances of another person.
        As Chair Collins stated, in the U.S. there are
    approximately 1.3 million active adult guardianship or
    conservatorship cases. Nationally courts oversee at least $50
    billion of assets under adult conservatorships. My written
    testimony addresses issues that can dramatically improve
    efficiencies and oversight of guardianships and
    conservatorships, including improved data collection,
    modernization of processes and professional auditing, the use
    of differentiated case management strategies to prevent and
    address exploitation, the development of interactive online
    training programs to provide basic education for
    nonprofessional guardians and conservators, and expanding
    collaborative efforts such as Working Interdisciplinary Network
    of Guardianship Stakeholders groups, or WINGS groups.
        For this hearing, I will focus on the first two items:
    improved data collection and modernization.
        The National Center's Court Statistics Project annually
    collects state court data on a variety of case types, including
    adult guardianships and conservatorships. However, as noted in
    a number of publications, the quality of national data is
    highly problematic. In 2016, to determine if the quality of
    data had improved and to explore challenges in documenting
    adult conservatorship exploitation, the National Center
    undertook a survey of courts for guardianship and
    conservatorship data. Five data elements were requested: new
    cases filed, total active cases, total dollar value of
    conservatorship cases, and cases in which a conservator was
    removed for cause or criminally charged. Fifty-one states and
    territories responded, but only 39 states were able to provide
    some level of data. No state was able to provide data on all
    five elements.
        The three primary themes why courts could not provide data
    were: the authority and practices are highly localized, a lack
    of standards for data reporting, and outdated technology and
    case management systems.
        So why is data a concern? Many courts may not be aware of
    which cases are open and should be monitored and which cases
    are closed or no longer need their attention. There are states
    that have taken on reviewing each case, updating records and
    accompanying data. Texas, Nevada, and New Mexico are reviewing
    case files to determine if each case should remain open, what
    filings or accountings are missing and needed follow-up. Texas,
    Indiana, and Pennsylvania have all established statewide
    guardianship/conservatorship registry systems to help them
    track and monitor cases.
        Determining the open or closed status of a case, although
    very basic, is an essential step for court reform in
    guardianship and conservatorship case management and oversight.
    The Texas process could be adopted as a model for court case
    review.
        Courts lack resources and skills to monitor and oversee
    these cases. The National Center will soon launch a project
    that could transform the conservatorship system in courts. With
    funding from the Office for Victims of Crime, the National
    Center will work with two courts to pilot the concept where
    conservators would be required to sign up with a financial
    monitoring company that will identify suspicious transactions
    based on personal financial profiles created through machine
    learning. The company will send alerts to the court's Rapid
    Response team. The team will respond to each instance and
    resolve the issues through education, removal of exploitative
    conservators, repayment of assets, and referral to
    investigative agencies in a very quick timeframe.
        I thank you for this opportunity, and I welcome your
    questions.
        The Chairman. Thank you very much.
        Commissioner Hamm.

         STATEMENT OF BETHANY HAMM, ACTING COMMISSIONER, MAINE
        DEPARTMENT OF HEALTH AND HUMAN SERVICES, AUGUSTA, MAINE

        Ms. Hamm. Chairman Collins, Ranking Member Casey, and
    members of the Committee, I am Bethany Hamm, Acting
    Commissioner of the Maine Department of Health and Human
    Services. Thank you for the opportunity to testify today.
        My testimony provides background information on Maine's
    Adult Protective Services and public guardianship program. I
    will also outline recent changes to Maine's probate code that
    relate to guardianship of adults and how we anticipate the
    recently enacted probate code changes will serve to protect
    adults under guardianship and conservatorship in Maine.
        Maine DHHS is required by state law to carry out the
    mandates of the Adult Protective Services Act, or the APS Act.
    In accordance with the APS Act, Maine's program within DHHS'
    Office of Aging and Disability Services is specifically
    responsible for protecting incapacitated adults from abuse,
    neglect, and exploitation through thorough, investigative,
    protective, and supportive efforts.
        When APS determines that an incapacitated adult needs a
    guardian or is subject to abuse, neglect, or exploitation, we
    will conduct a search for a suitable private guardian. If none
    are available, APS will petition for public guardianship.
    Public guardianship or conservatorship is only considered as a
    last resort.
        If DHHS is appointed public guardian, the department files
    a detailed guardianship plan annually, and more frequently as
    necessary.
        Licensed social workers who serve as guardianship
    representatives are assigned to maintain contact with each
    adult under guardianship and coordinate with service providers,
    medical professionals, and family and friends to ensure the
    health and safety of each adult under guardianship.
    Guardianship representatives may also seek to terminate or
    modify a guardianship relationship if necessary. Currently,
    Maine DHHS has legal guardianship and conservatorship
    relationships with approximately 1,300 adults. Approximately 15
    percent are limited guardianship relationships.
        During the most recent state legislative session, Maine
    enacted the Maine Uniform Probate Code, or UPC, to recodify and
    revise the state's probate code. While the Maine UPC maintains
    the same requirements for public guardianship, a number of
    mandates relative to private guardianship of adults in the UPC
    are scheduled to go into effect July 1, 2019.
        The Maine UPC establishes, for the first time in the state,
    the private guardian's duty to report annually on the condition
    of the adult and account for money and other property in the
    guardian's possession or subject to the guardian's control.
    Additionally, the Maine UPC effectuates a requirement for the
    courts to establish a system for monitoring and reviewing each
    report at least annually. The court will use the guardian's
    report to determine if additional actions or modifications,
    including termination, are appropriate.
        The Maine UPC also highlights the importance of exploring
    all options to limit or preclude the need for guardianship at
    the outset, including the use of technological assistance and
    employing supported decision-making. Similarly, the UPC
    language underscores the viewpoint that autonomy should be
    preserved as much as possible, and an adult who has a guardian
    or conservator must still have a seat at the table when
    decisions are being made.
        The department anticipates that the Maine UPC's statutory
    requirements will substantially improve data collection on
    guardianship. Similarly, requiring annual reporting of all
    guardians will allow the courts to more effectively provide
    oversight and bring concerns to the attention of appropriate
    entities, such as APS and law enforcement. The emphasis on
    reviewing all less restrictive alternatives to guardianship in
    statute, alongside the requirement for annual review, will help
    to ensure that guardianship is not imposed unnecessarily and is
    removed if no longer needed.
        Overall, the Maine Department of Health and Human Services
    is strongly committed to protecting the health and safety of
    incapacitated adults through its investigative and public
    guardianship functions. We believe that the UPC's revised focus
    on what is in the best interest of the incapacitated adult is a
    significant step forward to guardianship reform in Maine.
        Thank you for inviting me to speak and for taking the time
    to focus on this significant topic.
        The Chairman. Thank you very much, Commissioner.
        Ms. Buck.

    STATEMENT OF KAREN C. BUCK, ESQ., EXECUTIVE DIRECTOR, SENIORLAW
                   CENTER, PHILADELPHIA, PENNSYLVANIA

        Ms. Buck. Thank you, Senator Collins, Senator Casey, and
    members of this Committee. It is a real pleasure to be here on
    this panel with these esteemed colleagues.
        As a proud public interest attorney and nonprofit leader
    who has advocated for older Americans for the past 21 years, I
    am so pleased to be able to testify today about the challenges
    of the guardianship system and some ideas on solutions and best
    practices for improvement.
        SeniorLAW Center fights for justice for older
    Pennsylvanians. We are a nonprofit legal services organization
    of attorneys and advocates, celebrating our 40th year of
    representing older people, focusing on those in the greatest
    economic and social need. We envision a world that values older
    people, that hears their voices and guarantees their rights.
    This vision, I think, really captures the essence of why we are
    here today.
        Few legal proceedings have more impact on an individual's
    fundamental rights and liberties than guardianship. Putting
    life decisions of one into the hands of another is daunting. At
    SeniorLAW Center, we do much to prevent the need for
    guardianship. Guardianship has overwhelming impact on an
    individual's health, safety, economic security, shelter,
    family, happiness, quality of life, and, yes, even, longevity.
    And it is ripe for abuse, neglect, and exploitation in the
    wrong hands. It has created situations of enormous family
    anguish and pain. It is at the same time an important tool to
    provide for the care of our most vulnerable citizens. It is
    often misunderstood.
        I will now highlight the major points detailed in my full
    statement, my full written statement.
        The first is about data collection, and it is so great to
    hear from my colleagues here about what they are doing in other
    states and at the State Center. We know there is a paucity of
    guardianship data, much less reliable data, in Pennsylvania and
    elsewhere around the country. Data is essential, as we heard,
    to addressing the size and scope of the problem, what is
    working and what is not, tracking the caseload, the guardians
    and individuals, wards, or alleged incapacitated persons who
    are involved, and, most importantly, their health and safety.
        In this area, Pennsylvania is making great strides. I am
    proud, as the Senator mentioned, to be an appointed member of
    the Pennsylvania Supreme Court's Elder Law Task Force and its
    Advisory Council on Elder Justice in the Courts, which have
    both spent enormous time and effort in examining guardianship
    and its challenges and best practices, elder abuse and neglect,
    and access to justice. The task force released its report with
    130 recommendations in November 2014, and I cannot wait to take
    this new report back to the Supreme Court in Pennsylvania. I do
    have to add, though, that in presenting this testimony, I do so
    on behalf of SeniorLAW Center and myself and not on behalf of
    the court or its council.
        We are so proud of the groundbreaking work of the court's
    task force and council, and of the Administrative Office of the
    Pennsylvania Courts, who together have created and in 2018
    released a new Guardianship Tracking System, GTS, which will
    transform guardianship data in Pennsylvania, and we believe set
    a gold standard for the country. It will streamline and
    modernize the filing, reporting, and monitoring functions of
    the court in a sophisticated data base and enable courts to
    share information about guardians and counsel to identify red
    flags when abuse or exploitation may be involved, track
    caseloads, and both financial and personal care information,
    and much more. Providing accurate information to courts who are
    making these profound determinations about individuals will
    have an extraordinary impact on individual lives and freedom.
        Data collection is great, but we also need other responses
    to abuse and exploitation of those under guardianship, and so
    many of the recommendations are in my written testimony, but
    just to point out a few.
        Certainly training is an enormous issue of judges, court
    staff, families, the aging network, and others about the
    process and what rights we have under guardianship.
        A Bill of Rights for both Incapacitated and Alleged
    Incapacitated Persons, and I know my colleague Ms. Buckley will
    speak about that in Nevada.
        Volunteer pro bono systems who do guardianship monitoring
    or professional monitors, training and certification of
    professional guardians, and reasonable investigation into their
    backgrounds.
        And supporting advocates and legal services to represent
    and advocate for individuals who are being abused and exploited
    or who allege such abuse or exploitation. Legal services are an
    essential tool in the fight against guardianship and abuse, as
    are statewide senior legal helplines, which are now available
    in 26 states and provide free, accessible, effective, and cost-
    efficient legal advice, information, and representation to
    seniors in critical civil areas of law.
        I have a number of comments on least restrictive
    alternatives, but in the spirit of my time, I will just end
    with the right to counsel and access to justice, which is the
    essence of the work that we do at SeniorLAW Center and has
    really been my professional passion. We are especially
    concerned about the right to counsel and representation of
    alleged incapacitated persons in guardianship proceedings and
    ensuring fair, unbiased, and zealous advocacy. In many
    jurisdictions across the country, including Pennsylvania,
    counsel is frequently not appointed, and I would submit that
    the scales of justice are, therefore, imbalanced. We believe
    individuals should participate in their hearings, be present
    when at all possible, and start with the presumption that they
    can be.
        I will end by thanking you for this opportunity to
    participate in this important discussion. We are delighted to
    see the report that has been issued today, and we look forward
    to being involved in your next efforts to pursue justice for
    older Americans.
        Thank you.
        The Chairman. Thank you very much.
        Ms. Buckley.

      STATEMENT OF BARBARA E. BUCKLEY, ESQ., EXECUTIVE DIRECTOR,
         LEGAL AID CENTER OF SOUTHERN NEVADA, LAS VEGAS, NEVADA

        Ms. Buckley. Thank you, Chair Collins, Ranking Member
    Casey, members of the Committee. For the record, my name is
    Barbara Buckley, and I am the executive director of Legal Aid
    Center of Southern Nevada. I am honored to be here today to
    discuss a critical issue facing our country: exploitation of
    the elderly and adults with disabilities in the guardianship
    arena.
        Guardianship abuse hit many in Nevada. It destroyed the
    lives of countless individuals, depriving them of their
    liberty, their right to see their family, and their assets.
    Guardians were being appointed without notice, often when there
    was no real need for a guardian. The court bypassed family
    members to appoint professional guardians or others who
    proceeded to loot the estate and then isolate the individual
    from their loved ones.
        All of the fees incurred by the guardian and the guardian's
    attorney robbed the protected person sometimes of their entire
    life savings, with little or no oversight. The elderly adult or
    adult with disability at the center of the case was often the
    only party without an attorney or the ability to object in
    court. They were left stranded without being able to express
    their wishes and had no one to enforce their rights.
        It became clear that reforms were needed after families and
    protected persons, with their voices magnified by the press and
    others who believed in them, began coming forward about their
    victimization. In 2015, Nevada Supreme Court Chief Justice
    James Hardesty enacted a Guardianship Reform Commission which
    suggested numerous reforms, all adopted by the Nevada
    Legislature and approved by our Governor. My testimony today
    focuses on the three most significant reforms enacted.
        The first, right to counsel. The right to counsel for
    individuals facing or in guardianship is one of the most
    important recommendations emanating from Nevada. Since
    individuals face significant deprivation of rights and
    liberties, it was determined that individuals should have the
    same right to counsel as set forth in the landmark case of
    Gideon v. Wainwright. The goal of counsel is to ensure that the
    least restrictive alternative to guardianship is the first
    thing examined so as to maximize the independence and legal
    rights of those who are facing guardianship, to provide a voice
    in court proceedings, for those who want to contest a
    guardianship either because it is unnecessary or because the
    guardian is abusing their power, and to protect the due process
    rights of those waylaid into the system.
        The commission recommended and the legislature agreed that
    counsel would follow a client-directed model, and that model
    requires the attorney to zealously advocate for the wishes of
    their client and not to substitute their own judgment for what
    they think should happen in the case.
        Nevada also decided that legal aid attorneys should provide
    this representation. We have now become experts in the field of
    elder law and guardianship and share best practices amongst
    ourselves in Nevada.
        Since the advent of this program, there is a completely
    different landscape in guardianship proceedings. As soon as a
    petition is filed, a legal aid attorney is appointed, we go
    visit the client where they are to learn what they want. We get
    their input from the very beginning. The client makes the
    decision whether to support or oppose the guardianship or who
    is being proposed to be the guardian.
        We have had unscrupulous guardians removed, unnecessary
    actions dismissed, and our clients' assets recovered. We ended
    a structural imbalance that was just spoken about where the
    most important person in the case previously had no voice.
        The second important reform, creation of a Bill of Rights
    for a protected person. In Nevada, like many other places,
    there seems to be almost a callous indifference about the
    rights of the individual under guardianship where their opinion
    did not really matter. To combat this sometimes callous
    treatment, we scoped all of the Bill of Rights throughout the
    country--Texas--we looked at different areas, rights given to
    individuals with mental illness and the like, and we compiled a
    Nevada-centric version. A person has the right to be treated
    with dignity, respect, be in the least restrictive environment,
    be represented by counsel, to not have their visitors
    restricted. It is a comprehensive end to the previously lack of
    consideration for those under guardianship.
        Last, I would like to talk about our Nevada Guardianship
    Compliance Office. This is the third plank of the Nevada
    reforms. This office opened in January 2018 and provides
    auditing and investigative services to the district courts.
    They may locate a protected person who is not where they are
    supposed to be. They may report on the appropriateness of the
    guardian and the care and treatment. They have opened 121 cases
    involving appropriateness of guardians and 50 audit cases just
    in that short time.
        It is hard to describe the heartache and suffering that was
    going on in Nevada prior to these reforms. We are proud of the
    strides we have made. I would be remiss if I did not thank our
    then-Chief Justice, now-Justice James Hardesty, our courts, our
    legal aid team, our lawmakers, and our victims' families for
    bringing these issues to the forefront and for their solutions.
        There is still a lot of work left to do in Nevada, so I
    want to thank you for this hearing, for your report, and all of
    the work that you have done on this issue. I would also like to
    thank our Senator Cortez Masto for her work as AG in regulating
    private professional guardians, bringing that issue up for the
    first time and all she does for our state.
        I would urge this panel to continue to engage with jurists,
    lawmakers, and to continue your quest for reform. Our seniors
    and adults with disabilities deserve no less.
        Thank you.
        The Chairman. Thank you very much.
        Commissioner Hamm, I am going to start with you. I was
    interested to learn of the reforms that the State of Maine has
    made in its probate code to better protect those who need
    guardians, and part of the reforms that you mentioned were
    regular reports, I believe, being filed annually. Could you
    give us some sense of what kind of information is required to
    be reported to the court? And what is involved in the court's
    review of guardianship reports?
        Ms. Hamm. Certainly. Thank you, Chairman, and I just want
    to start off by saying Maine is extremely lucky to have you as
    a champion, particularly on these issues, and not just a
    champion in Maine but a champion across the country.
        The Chairman. Thank you.
        Ms. Hamm. So thank you very much for your work, and I do
    want to just go back to one statement that you made in your
    opening remarks about Maine being the oldest state in the
    Nation, which right now about 20 percent of our folks in Maine
    are 65 and older, so we have an interest in making sure that
    they are protected.
        So Maine did adopt the Uniform Probate Code which goes into
    effect July 2019, so the report has generally adopted
    everything that was in the reporting requirements, the 13
    requirements that were laid out. So those were adopted and will
    be followed. They will review the reports annually, as I
    described, and just looking here to see a little bit about what
    the reports will determine.
        So the reports provide sufficient information to establish
    the guardian has complied with the guardian's duty, whether the
    guardianship should continue, and also whether the guardian's
    fees, if any, should be approved. So that is just a few
    examples of those.
        The Chairman. Thank you.
        Ms. Buckley, you talked about the reforms which were really
    major reforms that Nevada implemented. Were these reforms in
    response to specific cases that occurred? I recall from a
    previous hearing a particularly egregious case of one
    individual who had ripped off so many people who were under his
    care.
        Ms. Buckley. Thank you, Senator. Yes, the reform commission
    started after reports became known through the voices of
    victims and their families and the press, and there were just
    so many of them. One particular private professional guardian
    was particularly egregious. She was the one featured in that
    New Yorker article that you discussed at your last hearing. She
    is still in the Clark County detention center and has agreed to
    a plea bargain, you know, but she destroyed hundreds of lives.
    But it was not just her. It was other private professional
    guardians. It was other guardians including family members that
    just suffered from a lack of kind of rights and a structural
    imbalance.
        The Chairman. And nobody overseeing them really once they
    are appointed, too.
        Ms. Buckley. None whatsoever. I mean, I recall one case
    where our attorney went to visit someone, and they had had a
    stroke, and Elder Protective Services asked us to go visit the
    home. And when we talked with the gentleman and asked him,
    ``Are you happy where you are?'' he just looked at us and
    signaled, you know, ``No.'' We said, you know, ``Would you like
    a change in guardian?'' He had been, you know, pretty hurt by a
    stroke. And he squeezed our attorney's hand so tightly, and
    when she said, ``I will represent you. I will tell the court
    that you need another guardian,'' he moved his finger to give
    her a thumbs up, and a tear went down his face. He had been
    held prisoner in this home without the ability to address the
    court, without the ability to escape. That is what the right to
    counsel began to end in Nevada.
        The Chairman. It is a heart-wrenching story indeed.
        Ms. Boyko, you described in your testimony the proposal for
    a rapid response pilot project that proposes to transform the
    guardianship system in the courts, and I was intrigued that
    part of it was that the guardian or conservator would be
    required to sign up with a financial monitoring company so that
    suspicious transactions could be identified quickly and alerts
    sent to the court's rapid response team. Can you tell us the
    current status of that pilot project?
        Ms. Boyko. Yes. Thank you, Chair Collins. That project is
    just about to go underway. We hope to start it at the beginning
    of the year. We have received funding from the Office of
    Victims of Crime, and although it is minimal funding to get it
    started in two pilot courts, we have a court in Michigan and a
    court in South Carolina that are going to pilot it. And we are
    hoping that the proof of concept will be determined to be
    viable and it will be able to be replicated on a national
    level.
        The Chairman. And would the funding that is included in the
    Guardianship Accountability Act that Senator Casey and I have
    introduced be useful in expanding pilot projects like that?
        Ms. Boyko. It certainly would.
        The Chairman. I knew you would answer that way.
        [Laughter.]
        The Chairman. But I just wanted to get it on the record so
    that we----
        Ms. Boyko. Yes, yes, yes. It certainly would.
        The Chairman. Thank you.
        Senator Casey?
        Senator Casey. That was remarkable choreography.
        [Laughter.]
        Senator Casey. And we need it.
        Karen, I will start with you and also maybe Ms. Boyko on
    this round of questions. But I wanted to start with this
    question of data and, more importantly, reliable data. We found
    in this process that even what we consider, I think most would
    consider basic information on guardianship is lacking. We do
    not know often, for example, how many people are subject to
    guardianship, who their guardians are. Has a guardian been
    thoroughly vetted? How many people are possibly being abused or
    exploited by a guardian? Questions to which we often do not
    know the answer.
        Karen, I wanted to start with you on this and ask you, in
    light of the really limited information sometimes, we know that
    Pennsylvania has created the Guardianship Tracking System, a
    data base for guardianships that will be up and running in all
    67 counties in Pennsylvania by the end of December. I guess,
    first, could you explain how the system would address this gap
    in data?
        Ms. Buck. Yes, I would be happy to, Senator. Thank you.
    And, again, thank you for your leadership on behalf of older
    Americans. We are really thrilled to have you on this Committee
    and as our voice in Washington.
        So the Guardianship Tracking System, as I mentioned, came
    out of the work of the Supreme Court's Elder Justice Council
    and Task Force, and it was a recommendation of that initial
    report that was released in 2014. Similar to Nevada, our courts
    really took leadership in this role. And as we were working as
    a leadership entity through the problems of access to justice,
    guardianship, elder abuse and neglect, we surveyed courts. We
    did some recon to find out what was the status of data on
    guardianships in Pennsylvania, and what we found was very
    disheartening.
        As you know, Senator, we have 67 counties in Pennsylvania.
    Many of our judicial and Orphans' Court branches are quite
    small. For example, we have one county in Pennsylvania which
    has one judge. He does it all. He is the president judge and
    the only judge. So the challenge is we recognize that there are
    challenges, and keeping up with the data was one of them, and
    having enough resources to review reports, make sure they were
    filed, follow up with guardians and track the data.
        So the Supreme Court had recommended through its council
    that we develop this tracking system, and it has been a year
    and a half in the making. This is our profile, GTS, and if you
    go on the Supreme Court Council Web site, the Pennsylvania
    Supreme Court Web site, there is actually a video about our new
    tracking system.
        I just wanted to mention a couple things about how it was
    created. This was a project of the Office of Pennsylvania
    Courts, and they put a whole team of IT experts on this
    project--five analysts, five developers, four data base
    administrators, and a separate migration team. It really was
    transformative. They are currently migrating all active
    guardianship caseloads into the system and working with courts
    and with guardians to ensure that information is as accurate as
    possible as it is migrated into the new system.
        As you mentioned, it is new and will not be fully
    implemented until the end of this year. But it will really make
    various information that was never available before on a
    statewide basis available, including the frequency of contact
    of guardians, the caseloads, the relationship to incapacitated
    persons. Ms. Buckley talked about we would like family members
    to be guardians of their loved ones if it is at all possible.
        Criminal background checks, of course, is an issue, and
    next year it will become a requirement in Pennsylvania. Bond
    information, whether the individual is leaving the community
    and moving into a nursing home, and that is a big problem with
    guardians, as Ms. Buckley mentioned, and others--selling the
    house, moving that individual under their care, not where they
    want to be, but what might be more effective for the guardian.
    Sometimes it is the right decision, but we want to have that
    information, and, also, significant transfers of funds, so that
    also flashes the financial information.
        There is a page in our manual--several pages which are all
    the flags that judges and their staff can input into the GTS,
    concern of loss and neglect flags. So a series of over 34 flags
    that judges and their court staff can input into the system to
    say this guardian or this case is problematic or potentially
    problematic, and then that information will be available to all
    judges who are looking at guardianships in Pennsylvania.
        And then, finally, I would just say I heard the federal
    funding question, and this transformation of data for our
    courts is going to require a lot more effort to review the
    information, to have eyes and ears on it. So any type of
    additional funding for the courts and the court staff to do
    that important work would be much welcome in Pennsylvania.
        Senator Casey. Well, thank you very much. I know that I am
    over time. Let me just ask one more for Ms. Boyko, the same
    general question about reliable data. But I guess from more of
    a national perspective, what improvements to the collection of
    data are needed to ensure we can have consistent, reliable data
    from across the country on guardianships?
        Ms. Boyko. Thank you, Senator Casey, and I reiterate I do
    not think the issues in Pennsylvania that Ms. Buck identified
    are unique to Pennsylvania. I think they are reflective
    nationwide as far as the data picture goes.
        I think the No. 1 thing that is needed is a national
    identification of what data elements would be beneficial for
    courts to collect, and then an avenue to assist courts in
    finding ways to collect that data. And as Ms. Buck identified
    in Pennsylvania, the resources needed to get to that level are
    essential and extensive, and any assistance to courts--because
    courts are very localized, it is a very individual court issue
    as far as the collection of data. So assisting courts at the
    very local level in establishing a mechanism to gather this
    data would be essential.
        Senator Casey. Thank you very much.
        The Chairman. Thank you.
        Senator Blumenthal?
        Senator Blumenthal. Thank you very much, Madam Chairwoman.
        This topic is immensely important. Many of us in this room
    will encounter this situation. In Connecticut, guardianship or
    conservatorship decisions are made by a local probate court
    judge who is elected and need not be a lawyer. I do not know
    how often that occurs elsewhere in the country, but these
    judges are essentially beyond any oversight. And very often
    they have their own fiefdoms, literally their own private
    kingdoms. They make a ton of money.
        [Applause.]
        Senator Blumenthal. So I gather from the applause that many
    of you are familiar with these situations. Maybe you have been
    in a sense involved in them. I hear from my constituents all
    the time. We are carrying on this conversation at a very high
    level of abstraction, but the impact on lives, real-world
    situations, is enormous. And I say that as a lawyer in
    Connecticut who has never handled a guardianship or
    conservatorship case, but I think we need to figure out a way
    to assure greater accountability in this system.
        [Applause.]
        Senator Blumenthal. And I think we need more information.
    But I do not need more information to have seen some of the
    ways that the probate courts or the other parts of the system
    operate. And you can all speak for your own states. Maybe
    Connecticut is an outlier; maybe the rest of the system is
    perfect, and Connecticut is the one place in the universe where
    there have been these issues. But I wonder if you could comment
    on the quality of judging--I assume it is mostly judges who
    appoint these guardianships. I have always assumed it in other
    states as well, judges who are elected. Are they appointed? Do
    we know? What kind of oversight is there? I realize these are
    all big questions, but maybe you can give us some feedback on
    it. And, most importantly, what is the quality of this
    decision-making?
        Ms. Buckley. I will answer that. So, Senator, I am from
    Nevada, and when we started our reform journey, there were
    8,000 open adult guardianship cases. After the cases were
    scrubbed, it was found that there was only 3,000 actually where
    the person had not died. There was no oversight of the
    financial issues or the care of the guardian. The cases were
    basically rubber-stamped. If a lawyer said this person needs
    guardianship, it was granted without even a hearing. And so the
    protected person did not have a voice. We had a very sad case
    where a neighbor came to protest that she was looking after the
    neighbor in her cul-de-sac, but the hearing was canceled. The
    private professional guardian was appointed. She moved the
    person out of the home, sold her lovely home, liquidated all
    her assets, overcharged her, and every time the neighbor looks
    at her former neighbor's house, it breaks her heart. That is
    what happens when there is no oversight.
        Ms. Buck. I might just add a comment as well, Senator.
    Karen Buck from Pennsylvania. I know we have a lot of family
    members here who have experienced a lot of anguish and pain as
    a result of guardianship and maybe some bad decisions. We have
    worked with a lot of Orphans' Court judges who are doing
    excellent work, and I would not make any blanket statements
    about any judges, and I probably would not be here complaining
    about judges either. We know that our judges are also elected
    in Pennsylvania, so there is a real challenge there.
        I would say, however, that having a right to counsel,
    having an attorney representing the alleged incapacitated
    person, as well as incapacitated persons already determined to
    be under guardianship who may not need to any longer be under
    guardianship, having access to counsel to fight abuse,
    exploitation, and neglect to challenge what is going on in the
    courtroom is really an essential first step. We have been
    talking about the access to legal services, which I would agree
    with Ms. Buckley, as an independent, usually nonprofit
    organization, profit is not the goal of our work in legal
    services. So, to me, that would be one of the great
    recommendations that we have unbiased, independent, nonprofit
    attorneys helping to represent these individuals.
        Ms. Boyko. If I could just address that question, Senator
    Blumenthal, I am Kate Boyko from the National Center for State
    Courts, and the Conference of Chief Justices and the Conference
    of State Court Administrators are very interested in reform in
    the courts in the area of guardianship and conservatorship. A
    document referred to in my written testimony on the
    guardianship improvement process has been supported and
    resoundingly approved by the Conference of Chief Justices and
    the Conference of State Court Administrators, and I think that
    that is a step in the right direction to provide an increase in
    oversight and to start reform in this--or continue the reform
    in some areas, but in some instances start reform in this area.
        Ms. Hamm. Senator, thank you for the question. In Maine,
    our probate judges are elected as well. Generally, I would say
    that they are thoughtful in their oversight or thoughtful in
    their decision-making. There is little oversight, as my
    colleague said. They are locally represented, and one thing I
    would say is there is a general need for more education around
    the guardianship issues amongst the probate judges. And I would
    also echo the need for more requirements around the noticing
    and rights to attorneys, et cetera.
        Senator Blumenthal. Well, I want to thank all of you. I
    apologize that I have gone over my time, Madam Chairwoman. And
    I do not mean to impugn every probate judge in Connecticut or
    elsewhere. There are some very fine and dedicated individuals
    doing this hard work. But it is an area which is largely
    invisible. Every other judge in our system has an appeals
    court, whatever it is called, above him or her, and then
    another appeals court, and then the United States Supreme Court
    eventually, theoretically. But probate court decisions are unto
    themselves, and I understand that the right to counsel is a
    protection, but if you said to the ordinary litigant, ``Well,
    you have no right to appeal this decision, but you do get a
    lawyer,'' they would say, ``That is not really good enough.''
        And I do not know what the solution is for us because we
    are up here on the dais and up here symbolically as Senators
    and we cannot really dictate to states how to run their justice
    systems. But I really appreciate all your hard work, and I
    appreciate the Chairwoman and Ranking Member focusing on this
    issue. Thank you.
        The Chairman. Thank you.
        Senator Gillibrand, you have been very patient.
        Senator Gillibrand. Oh, I very much enjoy my colleagues'
    work and your insightfulness, so I am very grateful to be here.
        Thank you all for your work. Obviously, you are all public
    servants and helping people who desperately need your help.
    Many advocates argue that there are far too many individuals in
    guardianship arrangements and that states need to provide
    better guidance to courts to use when determining when it is
    appropriate to subject an individual to such arrangements.
        Ms. Hamm, in your written testimony, you touch on the
    importance of exploring all options to limit or prevent the
    need for a guardianship arrangement when appropriate, including
    the use of technological assistance and employing supportive
    decision-making? Can you describe in more detail some of the
    alternative arrangements to full guardianship? What steps can
    Congress take to support greater adoption of these
    alternatives?
        And for Ms. Buck, in your testimony, you discuss the
    importance of education about guardianship alternatives for
    courts, families, and communities. How can Congress improve
    access to education in this area so that families facing
    undergoing complex guardianship proceedings are aware of all of
    their options before such a life-changing event?
        Ms. Hamm. Thank you, Senator. Well, I think that the UPC
    code and the enactment in Maine is moving in the right
    direction around less restrictive alternatives, by way of
    supported decision-making approaches, identifying a team or an
    individual that can help somebody make those important life
    decisions rather than move toward full guardianship. Single-
    issue orders, examples of that might be medical or financial,
    and then limited guardianships, examples of that might be
    residential placement or medical or financial.
        So I think that we are making progress, but my esteemed
    colleagues certainly represent those on the ground in the
    forefront and probably have some more thoughtful ideas around
    that.
        Ms. Buck. Yes, Senator, thank you so much for the question.
    The alternatives to guardianship are an enormous issue in this
    realm. There have been proposals from the American Bar
    Association that guardians--that states should require
    consideration of alternatives to guardianship in their
    guardianship statutes, to add that requirement, which I think
    is an important one. And you also questioned about education
    and training. In Pennsylvania, we are doing a lot to really
    energetically start that training of all judges so that they
    understand the full panoply of issues affecting older people,
    whether it is elder abuse and neglect or capacity or the aging
    brain, family dynamics, domestic and family violence, et
    cetera, and, of course, guardianship, because the issues of
    elder abuse and neglect are not aligned only with the
    guardianship field, as we know, and they do affect all aspects
    of the judicial system, whether it is the family court, the
    housing court, the orphans' court or others, landlord-tenant
    court, et cetera.
        So in Pennsylvania, we have created bench books that we are
    about to release in 2019 that every judge who handles
    guardianship will have so that they are clearly familiar with
    their duties, the roles and responsibilities of guardians, the
    rights of individuals, and, of course, the additional
    alternative means to guardianship. We would very much like to
    see less guardianships and more alternatives to guardianship,
    whether it is supported decision-making, whether it is making
    sure people have done all of their advance and life planning
    issues, done power of attorney duly executed while they have
    capacity, and having judges recognize the legitimacy of those
    documents and referring to those first.
        So we are also doing lay guardianship and training
    programs. We are training district attorneys and others. But I
    think there is a lot of misunderstanding not only about
    guardian but the full panoply of alternatives.
        If I could just go back quickly to Senator Blumenthal's
    question, I did want to point out that in Pennsylvania many of
    the judges are part and parcel of crafting the solutions. So I
    think they do understand in many instances that there are
    serious challenges in our judicial system.
        Senator Gillibrand. Ms. Buckley or Ms. Boyko, do you have
    any comments you want to add?
        Ms. Boyko. One comment that I would add to promote the
    alternatives to guardianship, the National Center for State
    Courts is currently working with the American Bar Association,
    with funding from the Elder Justice Initiative, to provide some
    online training for lay persons that will speak to alternatives
    to guardianship in hopefully promoting people before they come
    to the court that they know that there are other alternatives
    out there.
        Senator Gillibrand. Thank you, Madam Chairwoman. Thank you,
    Mr. Ranking Member.
        The Chairman. Thank you very much.
        Senator Cortez Masto?
        Senator Cortez Masto. Thank you, Madam Chair. And thank you
    all for being here. I apologize. I have other committee
    hearings going on at the same time. That seems to be a thing
    here. So if this question was asked, excuse me.
        I want to jump back to the idea of these proposed rules and
    duties for attorneys as they represent those in guardianship,
    and maybe, Ms. Buckley, let me start with you. Describe the
    difference. What we are talking about here is the duties for
    attorneys. It is not the duties that we typically have as
    attorneys in our roles that we are trained in law school and
    the rules and responsibility and what we carry out and the oath
    that we take specifically. These are duties that are unique to
    guardianship, the special interest model for attorneys that are
    engaging in this. Do you see a distinction? In other words, is
    there training that is necessary for an attorney that is taking
    on one of these roles that would be different than what they
    normally carry out in their day-to-day functions and other
    representation?
        Ms. Buckley. Thank you, Senator, for the question. The
    short answer is yes and no. The longer answer is we want an
    attorney for someone in a guardianship arena to follow the
    traditional attorney-client model. The person facing
    guardianship has the right to have their opinion matter and
    direct the course of the attorney. It is not a guardian ad
    litem role where the attorney says kind of what I think, ``Oh,
    I think this person is better than this person,'' because
    sometimes attorneys are not very good at that, right? They are
    trained in law. They are trained in how to be a lawyer. They
    are trained in what to do when there is a client in need. So
    our attorneys zealously advocate for our clients.
        If they are unable to communicate with us, let us say they
    are in a coma, we will then represent their legal and
    constitutional rights; if they have done estate planning, to
    make sure that is honored; if they are not in the least
    restrictive alternative, right? That is how we operate as
    attorneys for protected persons.
        Senator Cortez Masto. And how do you ensure--so this is
    best practice. So better jurisdictions are going to favor best
    practices. How would you help them to understand, yeah, that is
    something that--how does that export to part of best practices?
        Ms. Buckley. So what we have done is we have learned from
    our brethren throughout the country who study these issues,
    there are national trainings, and for attorneys in Nevada, we
    have put together a manual on how to represent a protected
    person. We are going to be offering a pro bono program, which
    is what we usually do, where we represent individuals directly,
    and then we ask attorneys in the community to come forward so
    they get to see unmet legal needs, so they can add their voices
    to Supreme Court commissions. And so in my written testimony I
    have provided a link to it and would encourage all throughout
    the country to look at it and to add their thoughts to it, and
    a major shout-out to our attorney, Jim Berchtold. It is really
    a masterpiece and really could be a model throughout the
    Nation.
        Senator Cortez Masto. Thank you. And I know, Ms. Buck, this
    is an area that you have advocated as well. Is that something
    similar to what you have seen as well?
        Ms. Buck. Yes, absolutely. But I think Ms. Buckley makes a
    very important point that we want attorneys to be zealous
    advocates for incapacitated or allegedly incapacitated persons,
    not to serve as a guardian ad litem. These are not children.
    They are adults. I started my legal career representing abused
    and neglected children, and part of the education of courts and
    others is we need to treat seniors as adults who have rich
    histories and experiences and not to be infantilizing them, to
    really check our paternalism and ageism at the door. And I
    think that is a big part of what we all do who advocate for
    older people.
        Senator Cortez Masto. Right, both for seniors and people
    with disabilities that require the guardianships. Thank you.
        Thank you, Madam Chair.
        The Chairman. Thank you.
        Ms. Buck, I am impressed by the work that the SeniorLAW
    Center Project Stop Abuse and Financial Exploitation, the SAFE
    program that you have, and the free legal representation that
    is provided to and abusive situations. What are the barriers
    that you have found to the successful prosecution of financial
    crimes?
        Ms. Buck. That is an excellent question, Senator. Thank
    you. Project SAFE, Stop Abuse and Financial Exploitation, is
    one of our most successful projects and one that is really
    growing and expanding enormously because of the extraordinary
    need of older victims who are facing so many forms of abuse,
    domestic violence, family violence, and the financial
    exploitation issues that you are all so familiar with.
        We have a real challenge just keeping up with the need, but
    I am happy to say--it is a two-part answer, some happy, some
    not happy. I am happy to say that we have had really successful
    civil and criminal justice partnerships with our district
    attorneys in Philadelphia and district attorneys around our
    Commonwealth. That being said, we need more resources and more
    attention by prosecutors to these issues of financial
    exploitation and other forms of elder abuse, and sometimes they
    do not get the attention that they need. And it is often a
    resources question.
        In Philadelphia, we have the largest percentage of seniors
    of the ten largest cities in the country and one of the
    poorest, and we are still working with a new district attorney
    to develop an elder justice unit in the district attorney's
    office.
        Another positive note is that, as you probably know, the
    U.S. Attorneys, the Department of Justice, have now Elder
    Justice Coordinations in almost every one of----
        The Chairman. We pushed very hard for that.
        Ms. Buck. Yes, and we thank you. In Pennsylvania, and
    particularly in the Eastern District, near Philadelphia, that
    is going to be transformative for us, and we are working very
    closely with them to try to pursue additional prosecutions.
        The Chairman. Thank you.
        Commissioner Hamm, obviously it is important that we
    prosecute those who have ripped off our seniors and betrayed
    their trust. I have a feeling that at times when it is a family
    member involved, that there is a reluctance on the part of the
    victim to proceed with the case. But my question for you is:
    What more can we do in the area of prevention, of making sure
    that these abuses do not occur in the first place, whether the
    guardian is a family member, a close fried, or a professional
    guardian who is unconnected to the family?
        Ms. Hamm. Thank you, Senator. That is an excellent question
    and one that I asked my team before I came here today to talk
    with everyone. So it is a difficult thing to tackle, for sure,
    and I think you can recall a situation in the State of Maine up
    in the Lincoln area where a family member did just what you
    described and was eventually prosecuted, so that was a good
    thing. But we are deploying things like SeniorSafe, which I
    know you are intimately familiar with. We partner with the
    Maine Council for Elder Abuse and Prevention and do regulate
    APS outreach in the community. We work very closely with our
    Legal Services for the Elderly folks. We contract with them to
    investigate or represent individuals who do not have
    representation.
        So those are some of the things that we are doing and will
    continue to do moving forward.
        The Chairman. Thank you very much.
        Senator Casey?
        Senator Casey. Thank you very much.
        Karen Buck, I will go back to you about the issue of
    background checks. I know we have talked about the right to
    counsel, but several of the individuals and organizations that
    have provided feedback to the Committee recommended that courts
    adopt a process for investigating backgrounds. I think that is
    fundamental. While this surely will not prevent all instances
    of abuse or exploitation, or both, it could weed out some
    really bad actors.
        The General Assembly in Pennsylvania is considering a bill
    to require these background checks of prospective guardians
    before being appointed, and the question I have for you is: If
    these checks are implemented with the proper safeguards, do you
    believe they could play an important role in providing
    additional information to the court as it considers whether to
    appoint a person as a guardian?
        Ms. Buck. Thank you, Senator. Yeah, the issue of criminal
    background checks is an important one. I am familiar with the
    legislation that you are referring to by Senator Haywood and
    others. One great stride we have been making as a result of
    some very egregious guardians in Philadelphia and surrounding
    counties who had very significant criminal convictions in other
    states that were not revealed by the guardianship process and
    were not known to the courts. As a result of that, Philadelphia
    has changed its rules and now currently requires criminal
    background checks to be part of the guardianship petition in
    all cases.
        The Pennsylvania Supreme Court has changed its rules, and
    as of next June, July, criminal background checks will be
    required in the filing of all guardianship petitions in
    Pennsylvania as well.
        As legal services attorneys, we think that as much
    information as possible is the way to go. I think the real
    question is: How is that information used? The judge should
    have all possible information at his or her disposal when they
    are making those decisions, and to Senator Cortez Masto's
    question, that is one of the areas and ways that we can prevent
    the appointment of bad or exploitive guardians. We do not
    condone blanket applications or exclusions of individuals with
    criminal backgrounds. It really should be a case-by-case basis
    on what was the criminal conviction. Is it relevant? And will
    it make the guardian less able to do their job? Of course,
    there are many that immediately should raise red flags, and
    that information will go into our Guardianship Tracking System
    as well.
        Senator Casey. The bill in the General Assembly, is it
    bipartisan?
        Ms. Buck. I believe so, yes.
        Senator Casey. OK. Thank you very much, Madam Chair.
        The Chairman. Thank you, Senator Casey.
        A vote has just started. Senator Cortez Masto, I want to
    give you a chance for one more question before we close out the
    hearing.
        Senator Cortez Masto. Thank you.
        For Ms. Boyko, thank you for your testimony and all of the
    work that you are doing. Data is key. I think it is key to
    everything that we do. It informs us. It helps us develop best
    practices, identify trends, things that we need to improve
    upon.
        Let me ask you this: Is there anything that the Federal
    Government can do to assist in distributing and encouraging
    some of these best practices that you have identified? Or what
    more can we do to help states address the issue of a lack of
    data or standardizing some of this data across the country so
    we can compare it?
        Ms. Boyko. Thank you for that question. I think one of the
    key things is encouraging collaboration. There are a lot of
    good ideas out there. There are a lot of states and local
    courts that are doing fabulous things to reform this area and
    improvements in data such as Pennsylvania that we have heard of
    today, and I think providing some type of national resource
    center for the clearinghouse of that information, to get that
    information to a variety of local courts and local states,
    accompanied by resources--there is a lack of resources, but
    sharing information. We do not need to reinvent everything. We
    can use the best practices that are in place some places and
    just share those with other places so that courts can implement
    them.
        Senator Cortez Masto. Thank you. That was a good segue into
    the final recommendation, because the recommendation, one of
    them in there, is a national resource center, which is
    fantastic. So thank you.
        Thank you, Madam Chair.
        The Chairman. Thank you very much.
        I want to thank all of our witnesses for being here today
    and for your enormous contributions to this debate. I have a
    fairly lengthy closing statement, but in the interest of our
    all making the vote, I am going to just put it into the record.
        I do want to take this opportunity to thank the two
    staffers who worked the hardest on this report, Amber Talley on
    my staff and Kevin Barstow on the Ranking Member's staff, who
    were the chief authors of the report. Many other staff members
    also played a role, and I want to thank them as well.
        I also want to indicate that Committee members have until
    Friday, December 7th, to submit questions for the record, so
    you may be receiving some additional communications from our
    Committee. But, again, my thank you to the witnesses today. You
    have really helped enhance our understanding. My hope is that
    states will take a hard look at the recommendations in our
    report and that the legislative reforms that we have proposed
    will be enacted as well.
        Senator Casey?
        Senator Casey. I will submit a statement for the record as
    well.
        Thank you, Madam Chair. Thank you to the witnesses.
        The Chairman. Thank you. This hearing is now adjourned.
        [Whereupon, at 4 o'clock p.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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            Closing Statement of Senator Susan M. Collins, Chairman
        I want to thank our witnesses for your contribution to this
    important discussion about what States are doing to better protect
    those placed under guardianship arrangements. Guardianship,
    conservatorship, and other protective arrangements are designed to
    protect those with diminished or lost capacity. In most situations the
    appointment of a guardian is necessary, and many of the individuals
    charged with caring for others through such arrangements provide
    compassionate and faithful services, enabling better outcomes for
    seniors, their families, and their communities.
        At the same time, in this Committee's investigation over the past
    year, we have uncovered opportunities for improving oversight of
    guardianship arrangements, for the increased use of alternatives to
    guardianship and the restoration of rights in appropriate situations,
    and for the collection of more reliable and consistent data. Several
    States are, however, making significant progress in reforming their
    guardianship procedures. As we have heard today, Maine, Pennsylvania,
    and Nevada are real leaders in this effort, and we applaud their
    efforts and successes.
        The report the Committee is releasing today discusses these issues
    and highlights some of the reforms that have been implemented, and
    includes recommendations for continued improvements. The Guardianship
    Accountability Act that Senator Casey and I introduced this morning
    would further support guardianship reform, providing support for many
    of those recommendations. This Committee remains committed to
    addressing the financial exploitation of older Americans by guardians,
    and we seek your feedback on this legislation as we look toward the
    116th Congress. Working together, we can identify the best ways to
    protect seniors from exploitation and stop the egregious abuses of
    power by guardians like those in the stories we heard today.
        Before I close, I'd like to thank those Members who will be leaving
    our Committee at the end of the 115th Congress . . . Senators: Hatch,
    Corker, Flake, Donnelly, and Nelson. Thank you for your service on this
    Committee, and you will be missed.
                                   __________

       Closing Statement of Senator Robert P. Casey, Jr., Ranking Member
        Thank you, Chairman Collins, for holding this important hearing.
    Thank you to our witnesses for being here today and providing valuable
    insight. As we have heard today, and exposed throughout the Committee's
    examination of the issue, there are many concerns about how the
    guardianship system is currently working. Instead of serving as an
    option of last resort, guardianship is far too often the first course
    of action. Older Americans and individuals with disabilities are faced
    with a complete loss of rights that often lasts their entire lives. For
    too long, we have heard horrific stories of how guardians have
    exploited people in their care. Once under guardianship, older
    Americans and individuals with disabilities are provided with little to
    no resources to lessen or remove a guardianship.
        I was encouraged to hear about efforts that are taking place in
    States across the country to improve their guardianship systems. While
    great work has been done, it will take a sustained effort to reform the
    guardianship system. We must work together to ensure individuals
    subject to guardianship are protected and that their well-being is
    considered first and foremost.
        I would like to thank Kevin Barstow, Rashage Green and Josh
    Dubensky on my staff, as well as former fellow in my office, Liz
    Weintraub, who helped kick off this work. I would also like to thank
    the staff of Senator Collins's office, for their work over the past
    year to bring this report together. I am thankful to Senator Collins
    for working with me on legislation that would improve the oversight of
    guardians and the collection of data. I am committed to working with
    her and my colleagues in the next Congress to pass this legislation. I
    look forward to our continued work on the issue.

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