[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
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HEARING
BEFORE THE
SPECIAL COMMITTEE ON AGING
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
SECOND SESSION
__________
WASHINGTON, DC
__________
NOVEMBER 28, 2018
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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
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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
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
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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.
[all]