[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                     
          
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                       SPECIAL COMMITTEE ON AGING

                   SUSAN M. COLLINS, Maine, Chairman

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


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

                              ----------                              

                                                                   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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