Guardianships: Little Progress in Ensuring Protection for	 
Incapacitated Elderly People (07-SEP-06, GAO-06-1086T). 	 
                                                                 
The Senate Special Committee on Aging asked GAO to follow up on  
its 2004 report, Guardianships: Collaboration Needed to Protect  
Incapacitated Elderly People, GAO-04-655. This report covered	 
what state courts do to ensure that guardians fulfill their	 
responsibilities, what exemplary guardianship programs look like,
and how state courts and federal agencies work together to	 
protect incapacitated elderly people. For this testimony, GAO	 
agreed to (1) provide an overview and update of the findings of  
this prior work; (2) discuss the status of a series of		 
recommendations GAO made in that report; and (3) discuss the	 
prospects for progress in efforts to strengthen protections for  
incapacitated elderly people through guardianships. To complete  
this work, GAO interviewed lawyers and agency officials who have 
been actively involved in guardianship and representative payee  
programs, and spoke with officials at some of the courts	 
identified as exemplary in the report.				 
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-06-1086T					        
    ACCNO:   A60409						        
  TITLE:     Guardianships: Little Progress in Ensuring Protection for
Incapacitated Elderly People					 
     DATE:   09/07/2006 
  SUBJECT:   Aid for the disabled				 
	     Courts (law)					 
	     Decision making					 
	     Elder abuse					 
	     Elderly persons					 
	     Federal/state relations				 
	     Guardians						 
	     Jurisdictional authority				 
	     Surveys						 

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GAO-06-1086T

     

     * Background
     * Collaboration to Protect Incapacitated Elderly People Contin
          * While State Court Procedures Vary in Their Oversight of Guar
          * "Exemplary" Courts Focus on Training and Monitoring
          * State Courts and Federal Representative Payee Programs Serve
     * Limited Progress Has Been Made on Recommendations from 2004
     * Some Developments Regarding Guardianships Appear Promising
     * Concluding Observations
     * GAO Contact
     * Acknowledgments
     * GAO's Mission
     * Obtaining Copies of GAO Reports and Testimony
          * Order by Mail or Phone
     * To Report Fraud, Waste, and Abuse in Federal Programs
     * Congressional Relations
     * Public Affairs

Testimony

Before the Special Committee on Aging, U.S. Senate

United States Government Accountability Office

GAO

For Release on Delivery Expected at 10:00 a.m. EDT

Thursday, September 7, 2006

GUARDIANSHIPS

Little Progress in Ensuring Protection for Incapacitated Elderly People

Statement of Barbara D. Bovbjerg, Director Education, Workforce, and
Income Security

GAO-06-1086T

Mr. Chairman and Members of the Committee:

I'm pleased to be here today to discuss guardianships for the elderly. As
people age, some become incapable of caring for themselves and must rely
on a guardian-a person or entity appointed by the court to make decisions
for them.1 Despite existing safeguards, there continue to be instances
where some guardians have taken advantage of the elderly people they were
supposed to protect. Such cases of abuse and neglect have prompted
questions about the oversight of guardianship programs.

In 2003, the Senate Special Committee on Aging asked GAO to study
guardianships for the elderly, and the results of our work appeared in a
2004 report.2 This work covered what state courts do to ensure that
guardians fulfill their responsibilities, what exemplary guardianship
programs look like, and how state courts and federal agencies work
together to protect incapacitated elderly people. I am here today to (1)
provide an overview and update of the findings of this work; (2) discuss
the status of a series of recommendations GAO made in that report; and (3)
discuss the prospects for progress in efforts to strengthen protections
for incapacitated elderly people through guardianships.

To do this work, we reviewed changes in guardianship statutes nationwide
since our 2004 report, interviewed lawyers and agency officials who have
been actively involved in guardianship and representative payee programs,
and spoke with officials at some of the courts identified as exemplary in
our previous report. Our work for the 2004 report involved similar
interviews, as well as surveys of courts in the three states with the
largest elderly populations: California, New York and Florida. For the
report we visited courts in eight states and we interviewed federal
officials responsible for representative payee programs. We conducted our
review in accordance with generally accepted government auditing
standards.

In summary, our 2004 report noted that some state laws and some courts
provide more protection for incapacitated elderly people than others.
State laws have varied requirements for monitoring guardianships and court
practices in the states we visited also varied widely. Coordination among
federal agencies and courts was quite limited and on a case-by-case basis.
Since our report was issued, some states have strengthened their
guardianship programs and some efforts have been made to lay the
groundwork for better collaboration. However, according to guardianship
professionals, states and federal agencies have made only limited progress
in improving guardianships. Some states, including Texas, New Jersey, and
Wisconsin, adopted guardianship reform legislation that should help
strengthen protections for people under guardianships in those states.
Federal agencies administering benefit programs appoint representative
payees to manage the benefits of incapacitated individuals. Our study
found there is a lack of systematic coordination among the federal
agencies and between federal agencies and the courts. In some cases, this
may weaken protections for vulnerable incapacitated people.

1 For convenience, we use the term "guardian," though some states use
other terms. California, for example, uses the term "conservator" when the
incapacitated person is an adult.

2 GAO, Guardianships: Collaboration Needed to Protect Incapacitated
Elderly People, GAO-04-655 (Washington, D.C.: July 13, 2004).

Our report made recommendations to federal agencies, but to date little
progress has been made. We recommended that the Social Security
Administration (SSA) convene an interagency study group to increase the
ability of representative payee programs to protect federal benefit
payments from misuse. Although the Department of Veterans Affairs (VA),
Department of Health and Human Services (HHS), and the Office of Personnel
Management (OPM) indicated their willingness to participate in such a
study group, SSA disagreed with this recommendation. We checked with SSA
recently, and its position has not changed. Second, we recommended that
HHS work with national organizations involved in guardianship programs to
provide support and leadership to the states for cost-effective pilot and
demonstration projects to facilitate state efforts to improve oversight of
guardianships and to aid guardians in the fulfillment of their
responsibilities. HHS did support a study that surveyed the status of
states' guardianship data collection practices. HHS also supported an
effort to include in a survey of adult protective service agencies
information about the extent to which guardians are the sources of reports
about elder abuse or the alleged perpetrator. We also recommended a review
of state policies and procedures concerning interstate transfer and
recognition of guardianship appointments. A National Conference of
Commissioners on Uniform State Laws, held in July of this year, issued a
discussion draft for a uniform state law addressing these issues.

Following issuance of our report, a joint conference of professional
guardianship organizations agreed on a set of action steps to implement
previous recommendations made at the Second National Guardianship
conference, known as the Wingspan recommendations.3 Although only modest
progress has been made overall, there are a few bright spots. For example,
the Wingspan recommendations call for the licensure, certification, or
registration of professional guardians. Several states now have such
programs and in the last couple of years Texas and New Jersey have been
added to the list of states that have such requirements for some
guardians.

                                   Background

The number of people age 65 and older will nearly double in the U.S. by
the year 2030 to 71 million. Over time, some elderly adults become
physically or mentally incapable of making or communicating important
decisions, such as those required to handle finances or secure their
possessions. While some incapacitated adults may have family members who
can informally assume responsibility for their decision-making, many
elderly incapacitated people do not. In situations such as these,
additional measures may be necessary to ensure that incapacitated people
are protected from abuse and neglect.

Several arrangements can be made to protect the elderly or others who may
become incapacitated. A person may prepare a living will, write advance
health care directives, appoint someone to assume durable power of
attorney, or establish a trust. However, such arrangements may not provide
sufficient protection. For example, some federal agencies do not recognize
durable powers of attorney for managing federal benefits. SSA will assign
a representative payee for an incapacitated person if it concludes that
the interest of the incapacitated beneficiary would be served, whether or
not the person has granted someone else power of attorney. In addition,
many states have surrogacy healthcare decision-making laws, but these
alternatives do not cover all cases. Additional measures may be needed to
designate legal authority for someone to make decisions on the
incapacitated person's behalf. To provide further protection for both
elderly and non-elderly incapacitated adults, state and local courts
appoint guardians to oversee their personal welfare, their financial
well-being, or both. The appointment of a guardian typically means that
the person loses basic rights, such as the right to vote, sign contracts,
buy or sell real estate, marry or divorce, or make decisions about medical
procedures. If an incapacitated person becomes capable again, by
recovering from a stroke, for example, he or she cannot dismiss the
guardian but, rather, must go back to court and petition to have the
guardianship terminated.

3 The second national guardianship conference, known as the "Wingspan
Conference" was held at the Stetson University College of Law in Florida
on November 30 to December 1, 2001.

The federal government does not regulate or provide any direct support for
guardianships, but courts may decide that the appointment of a guardian is
not necessary if a federal agency has already assigned a representative
payee-a person or organization designated to handle federal benefits
payments on behalf of an incapacitated person. Representative payees are
entirely independent of court supervision unless they also serve their
beneficiary as a court-appointed guardian. Guardians are supervised by
state and local courts and may be removed for failing to fulfill their
responsibilities. Representative payees are supervised by federal
agencies, although each federal agency with representative payees has
different forms and procedures for monitoring them. Each state provides
its own process for initiating and evaluating petitions for guardianship
appointment. Generally, state laws require filing a petition with the
court and providing notice to the alleged incapacitated person and other
people with a connection to that person.

In many cases, both courts and federal agencies have responsibilities for
protecting incapacitated elderly people. For federal agencies, a state
court determination that someone is incapacitated or reports from
physicians often provide evidence of a beneficiary's incapacity, but
agency procedures also allow statements from lay people to serve as a
sufficient basis for determining that a beneficiary needs someone to
handle benefit payments on their behalf-a representative payee. SSA, OPM,
and VA ask whether the alleged incapacitated person has been appointed a
guardian and often appoint that person or organization as the
representative payee. In some cases, however, the agencies choose to
select someone other than the court-appointed guardian.

In many cases, guardians are appointed with a full range of
responsibilities for making decisions about the incapacitated person's
health and well-being as well as their finances, but several states' laws
require the court to limit the powers granted to the guardian, if
possible. The court may appoint a "guardian of the estate" to make
decisions regarding the incapacitated person's finances or a "guardian of
the person" to make nonfinancial decisions. An incapacitated person with
little income other than benefits from SSA for example, might not need a
"guardian of the estate" if he or she already has a representative payee
designated by SSA to act on their behalf in managing benefit payments.
Sometimes the guardian is paid for their services from the assets or
income of the incapacitated person, or from public sources if the
incapacitated person is unable to pay. In some cases, the representative
payee is paid from the incapacitated person's benefit payments.

Guardians and representative payees do not always act in the best interest
of the people they are appointed to protect. Some have conflicts of
interest that pose risks to incapacitated people. While many people
appointed as guardians or representative payees serve compassionately,
often without any compensation, some will act in their own interest rather
than in the interest of the incapacitated person. Oversight of both
guardians and representative payees is intended to prevent abuse by the
people designated to protect the incapacitated people. While the incidence
of elder abuse involving persons assigned a guardian or representative
payee is unknown, certain cases have received widespread attention.

 Collaboration to Protect Incapacitated Elderly People Continues to Be Limited

Our 2004 report noted that some state laws and some courts provide more
protection for incapacitated elderly people than others. State laws have
varied requirements for monitoring guardianships and court practices in
the states we visited also varied widely. Coordination among federal
agencies and courts was quite limited and on a case-by-case basis. Since
our report was issued, some states have strengthened their guardianship
programs and some efforts have been made to lay the groundwork for better
collaboration. However, there continues to be little coordination between
state courts and federal agencies in the area of guardianships.

While State Court Procedures Vary in Their Oversight of Guardianships, Some
States Have Recently Strengthened Their Guardianship Programs

In our 2004 review we determined that all 50 states and the District of
Columbia have laws requiring courts to oversee guardianships. At a
minimum, most states' laws require guardians to submit a periodic report
to the court, usually at least once annually, regarding the well-being of
the incapacitated person. Many states' statutes also authorize measures
that courts can use to enforce guardianship responsibilities. However,
court procedures for implementing guardianship laws appear to vary
considerably. For example, most courts in each of the three states
responding to our survey require guardians to submit time and expense
records to support petitions for compensation, but each state also has
courts that do not require these reports. We also found that some states
are reluctant to recognize guardianships originating in other states. Few
have adopted procedures for accepting transfer of guardianship from
another state or recognizing some or all of the powers of a guardian
appointed in another state. This complicates life for an incapacitated
elderly person who needs to move from one state to another or when a
guardian needs to transact business on his or her behalf in another state.

In addition, guardianship data are scarce. Most courts we surveyed did not
track the number of active guardianships, let alone maintain data on abuse
by guardians. Although this basic information is needed for effective
oversight, no more than one-third of the responding courts tracked the
number of active guardianships, and only a few could provide the number
that were for elderly people specifically.

Since issuance of our report, several states have passed new legislation
amending their guardianship laws. During 2004, for example, 14 states
amended their laws related to guardianships, and in 2005 at least 15
states did so, according to the American Bar Association's annual
compilations. Alaska, for example, established requirements for the
licensing of private professional guardians and, in January of this year,
New Jersey began requiring the registration of professional guardians.
Acting on legislation in 2004, the California court system established an
education requirement for guardians and a 15-hour-per-year continuing
education requirement for private professional guardians.4 In 2004 Hawaii
adopted legislation requiring that guardians provide the court annual
accountings. Wisconsin also adopted a major revision of its guardianship
code this year; it establishes a new requirement that the guardian
regularly visit the incapacitated person to assess their condition and the
treatment they are receiving. The new law also leaves in effect powers of
attorney previously granted by the incapacitated person unless it finds
good cause to revoke them, and establishes procedures for recognition of
guardianships originating in other states.

Several states' guardianship law amendments established or strengthened
public guardian programs, including those in Texas, Georgia, Idaho, Iowa,
Virginia, Nevada, and New Jersey. In Georgia and New Jersey, for example,
public guardians must now be registered. Public guardians are public
officials or publicly funded organizations that serve as guardians for
incapacitated people who do not have family members or friends to be their
guardian and cannot afford to pay for the services of a private guardian.

4 Those who have served as guardians in California for 10 or more people
during the 2000 to 2005 period are exempt from the education requirement
for appointment, but are subject to the annual continuing education
requirement.

"Exemplary" Courts Focus on Training and Monitoring

In our 2004 report several courts were identified as having "exemplary"
programs. As we conducted our review, we sought particular courts that
those in the guardianship community considered to have exemplary
practices. Each of the four courts so identified distinguished themselves
by going well beyond minimum state requirements for guardianship training
and oversight. For example, the court we visited in Florida provides
comprehensive reference materials for guardians to supplement training.
With regard to active oversight, the court in New Hampshire recruits
volunteers, primarily retired senior citizens, to visit incapacitated
people, their guardians, and care providers at least annually, and submit
a report of their findings to court officials. Exemplary courts in Florida
and California also have permanent staff to investigate allegations of
fraud, abuse, or exploitation. The policies and practices associated with
these courts may serve as models for those seeking to assure that
guardianship programs serve the elderly well.

We recently contacted officials in each of these courts and received
responses from two of them. We learned that officials in these two courts
have worked to help strengthen statewide guardianship programs. For
example, court officials in Fort Worth, Texas, have helped encourage
adoption of Texas' recent reform legislation. However, we could not
determine whether other courts had adopted these courts' practices.

State Courts and Federal Representative Payee Programs Serve Many of the Same
Incapacitated Elderly People, but Continue to Collaborate Little in Oversight
Efforts

There is also a role for the federal government in the protection of
incapacitated people. Federal agencies administering benefit programs
appoint representative payees for individuals who become incapable of
handling their own benefits. The federal government does not regulate or
provide any direct support for guardianships, but state courts may decide
that the appointment of a guardian is not necessary if a representative
payee has already been assigned. In our study, we found that although
courts and federal agencies are responsible for protecting many of the
same incapacitated elderly people, they generally work together only on a
case-by-case basis. With few exceptions, courts and federal agencies don't
systematically notify other courts or agencies when they identify someone
who is incapacitated, nor do they notify them if they discover that a
guardian or a representative payee is abusing the person. This lack of
coordination may leave incapacitated people without the protection of
responsible guardians and representative payees or, worse, with an
identified abuser in charge of their benefit payments.

Since issuance of our report, we have not found any indication that
coordination among the federal agencies or between federal agencies and
the state courts has changed. SSA did, however, contract with the National
Academies for a study of its representative payee program. The study
committee issued a letter report including preliminary observations in
2005, and a final report is scheduled for release in May 2007. 5 The
committee plans to use a nationally representative survey of
representative payees and the beneficiaries they serve in order to (1)
assess the extent to which the representative payees are performing their
duties in accordance with standards, (2) learn whether representative
payment policies are practical and appropriate; (3) identify types of
representative payees that have the highest risk of misuse of benefits;
and (4) suggest ways to reduce the risk of misuse of benefits and ways to
better protect beneficiaries.

          Limited Progress Has Been Made on Recommendations from 2004

Only limited progress has been made on our recommendations. In one
recommendation we suggested that SSA convene an interagency study group to
increase the ability of representative payee programs to protect federal
benefit payments from misuse. Although VA, HHS, and OPM indicated their
willingness to participate in such a study group, SSA disagreed with this
recommendation. SSA stated that its responsibility focuses on protecting
SSA benefits, cited concern about the difficulty of interagency data
sharing and Privacy Act restrictions, and indicated that leadership of the
study group would not be within its purview. We checked with SSA recently
and learned that its position has not changed. Coordination among federal
agencies and between federal agencies and state courts remains essentially
unchanged, according to agency and court officials we spoke with. SSA
continues to provide limited information to the VA in cases where issues
arise such as evidence of incapability or misuse of benefits. However, to
ensure that no overpayment of VA benefits occurs, SSA will provide
appropriate VA officials requested information as to the amount of Social
Security benefit savings reported by the representative payee.

5 Committee on Social Security Representative Payees, National Research
Council, "Assessment of the Representative Payee Program of the Social
Security Administration: Letter Report," The National Academies, August 4,
2005.

In 2004, we also recommended that HHS work with national organizations
involved in guardianship programs to provide support and leadership to the
states for cost-effective pilot and demonstration projects to facilitate
state efforts to improve oversight of guardianships and to aid guardians
in the fulfillment of their responsibilities. Specifically, we recommended
that HHS support the development of cost-effective approaches for
compiling consistent national data concerning guardianships. HHS made a
step in this direction by supporting a study by the American Bar
Association Commission on Law and Aging of the guardianship data practices
in each state, which could prove helpful in efforts to move toward more
consistent and comprehensive data on guardianships.6 The study found that
although several states collect at least some basic data on guardianships,
most still do not. Only about a third of states receive trial court
reports on the number of guardianship filings. A total of 33 states
responded to a question about whether they were interested in compiling
data. Of these, 21 expressed interest and 12 indicated that they are not
interested, as the barriers are too high. Thus, it is still not possible
to determine how many people in the U.S. of any age are assigned guardians
each year, let alone the number of elderly people who are currently under
such protection.

Third, we recommended that HHS support the study of options for compiling
data from federal and state agencies concerning the incidence of elder
abuse in cases in which the victim had granted someone the durable power
of attorney or had been assigned a fiduciary, such as a guardian or
representative payee, as well as cases in which the victim did not have a
fiduciary. HHS has taken a step in this direction by supporting the
inclusion of questions about guardians in the National Center on Elder
Abuse's annual survey of state adult protective services agencies. 7
Specifically, the survey asked each state about cases in which a guardian
was the source of a report of abuse or was the alleged perpetrator in
state fiscal year 2003. Only 11 states provided information about the
source of reports of abuse. Similarly, 11 states indicated the
relationship between the victims and the alleged perpetrators. Guardians
were not often cited in either case. Indeed, a recent study found that
existing data cannot provide a clear picture of the incidence and
prevalence of elder abuse.8

6 Erica F. Wood, "State-Level Adult Guardianship Data: An Exploratory
Survey," American Bar Association Commission on Law and Aging for the
National Center on Elder Abuse, August 2006.

7Pamela Teaster et al., The 2004 Survey of State Adult Protective
Services: Abuse of Adults 60 Years of Age and Older (Boulder, Colo.:
February 2006).

Finally, we also recommended that HHS facilitate a review of state
policies and procedures concerning interstate transfer and recognition of
guardianship appointments to facilitate efficient and cost-effective
solutions for interstate jurisdictional issues. The National Conference of
Commissioners on Uniform State Laws (NCCUSL) met in July 2006 and issued a
discussion draft for a Uniform Adult Guardianship and Protective
Proceedings Jurisdiction Act. This draft contains provisions that would
allow guardianships to be formally recognized by another state or
transferred to another state. The draft is being refined, and a NCCUSL
committee plans to discuss it at another meeting this November. Passage of
this draft by the NCCUSL does not, however, guarantee that states will
follow its provisions because they must decide on their own whether to
amend their own laws.

           Some Developments Regarding Guardianships Appear Promising

While little progress has been made on several of our specific
recommendations, other steps taken since the release of our report are
more promising. In November of 2004, a joint conference of the National
Academy of Elder Law Attorneys, the National Guardianship Association and
the National College of Probate Judges convened a special session to
develop an action plan on guardianships.9 This implementation session
developed a series of 45 action steps that could be taken at the national,
state, and local levels in order to accomplish a select subset of the
recommendations made at the 2001 Second National Guardianship
Conference--the "Wingspan Conference." These action steps fall into five
main categories: the development of interdisciplinary guardianship
committees at the national, state, and local levels; the development of
uniform jurisdiction procedures, uniform data collection systems, and
innovative funding mechanisms for guardianships; the enhancement of
training and certification for guardians and the encouragement of judicial
specialization in guardianship matters; the encouragement of the most
appropriate and least restrictive types of guardianships; and the
establishment of effective monitoring of guardianships. The identification
of these action steps and the work that has begun on them reflects a high
level of commitment by the professionals working in the field.

8 Erica F. Wood, The Availability and Utility of Interdisciplinary Data on
Elder Abuse: A White Paper for the National Center on Elder Abuse,
American Bar Association Commission on Law and Aging for the National
Center on Elder Abuse  (Washington, D.C.: May 2006).

9 In addition to participants from the three organizations,
representatives from the American Bar Association Commission on Law and
Aging, the American Bar Association Section on Real Property, Probate and
Trust Law, and the American College of Trust and Estate Counsel all
participated in this conference.

In some cases work has begun on these action steps. Both the House and the
Senate versions of bills calling for an Elder Justice Act10 would
establish an Advisory Board on Elder Abuse, Neglect, and Exploitation
charged with making several recommendations including some concerning the
development of state interdisciplinary guardianship committees. As noted
earlier, the Commission on Uniform State Law has issued a discussion draft
of a Uniform Adult Guardianship and Protective Proceedings Jurisdiction
Act. Wisconsin's adoption of a reformed guardianship law this year
emphasizes the use of the least restrictive type of guardianship that is
appropriate. Regarding the monitoring of guardianships, recently Texas and
New Jersey joined several states that now have programs in place to
license, certify, or register professional guardians. In 2005, Colorado
began requiring prospective guardians (with some exceptions such as
parents who are seeking to be guardians for their children) to undergo
criminal background checks.

                            Concluding Observations

In conclusion, as the number of elderly Americans grows dramatically, the
need for guardianship arrangements seems likely to rise in response, and
ensuring that such arrangements are safe and effective will become
increasingly important. Progress on fulfilling some of our recommendations
has been slow where it has occurred, and for some, no steps have been
taken at all. The lack of leadership from a federal agency, and states'
differing approaches to guardianship matters, make it difficult to realize
quick improvements. Nonetheless, many people actively involved in
guardianship issues continue to look for ways to make improvements.
Emulating exemplary programs such as the four we examined would surely
help, but we believe more can also be done to better coordinate across
states, federal agencies, and courts. In our 2004 report we concluded that
the prospect of increasing numbers of incapacitated elderly people in the
years ahead signals the need to reassess the way in which state and local
courts and federal agencies work together in efforts to protect
incapacitated elderly people. Your Committee has played an important role
in bringing these problems to light and continuing to seek improvements.
In the absence of more federal leadership, however, progress is likely to
continue to be slow, particularly in the coordination among federal
agencies and between federal agencies and state courts.

10 Elder Justice Act, HR 4993, 109th Cong., 2d sess. (2006) and S 2010,
109th Cong., 1st sess. (2005).

                                     - - -

Mr. Chairman and Members of the Committee, this concludes my prepared
statement. I'd be happy to answer any questions you may have.

Appendix I: GAO Contact and Staff Acknowledgments

                                  GAO Contact

Barbara D. Bovbjerg, Director, Education, Workforce, and Income Security
Issues at (202) 512-7215.

                                Acknowledgments

Alicia Puente Cackley, Assistant Director; Benjamin P. Pfeiffer; Scott R.
Heacock; Mary E. Robison; and Daniel A. Schwimer also contributed to this
report.

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Highlights of GAO-06-1086T , a testimony before the Special Committee on
Aging, U.S. Senate

September 7, 2006

GUARDIANSHIPS

Little Progress in Ensuring Protection for Incapacitated Elderly People

The Senate Special Committee on Aging asked GAO to follow up on its 2004
report, Guardianships: Collaboration Needed to Protect Incapacitated
Elderly People, GAO-04-655. This report covered what state courts do to
ensure that guardians fulfill their responsibilities, what exemplary
guardianship programs look like, and how state courts and federal agencies
work together to protect incapacitated elderly people. For this testimony,
GAO agreed to (1) provide an overview and update of the findings of this
prior work; (2) discuss the status of a series of recommendations GAO made
in that report; and (3) discuss the prospects for progress in efforts to
strengthen protections for incapacitated elderly people through
guardianships.

To complete this work, GAO interviewed lawyers and agency officials who
have been actively involved in guardianship and representative payee
programs, and spoke with officials at some of the courts identified as
exemplary in the report.

What GAO Recommends

GAO is making no new recommendations in this testimony.

GAO's 2004 report had three principal findings. First, all states have
laws requiring courts to oversee guardianships, but court implementation
of these laws varies. Second, those courts recognized as exemplary in the
area of guardianships focused on training and monitoring. Third, there is
little coordination between state courts and federal agencies or among
federal agencies regarding guardianships. At present, these findings
remain largely the same, but there are some new developments to report.
Since GAO's report was issued, some states have strengthened their
guardianship programs. For example, Alaska established requirements for
licensing of private guardianships and New Jersey and Texas established
requirements for the registration of professional guardians. However,
there continues to be little coordination between state courts and federal
agencies or among federal agencies in the protection of incapacitated
people.

GAO's report made recommendations to federal agencies, but to date little
progress has been made. GAO recommended that SSA convene an interagency
study group to increase the ability of representative payee programs to
protect federal benefit payments from misuse. Although VA, HHS, and OPM
indicated their willingness to participate in such a study group, SSA
disagreed with this recommendation, and its position has not changed.
Second, GAO recommended that HHS work with national organizations involved
in guardianship programs to provide support and leadership to the states
for cost-effective pilot and demonstration projects to facilitate state
efforts to improve oversight of guardianships and to aid guardians in the
fulfillment of their responsibilities. HHS did support a study that
surveyed the status of states' guardianship data collection practices. HHS
also supported a National Center on Elder Abuse survey of adult protective
services agencies to collect information including the extent to which
guardians are the alleged perpetrators or the sources of reports about
elder abuse. Third, GAO recommended a review of state policies and
procedures concerning interstate transfer and recognition of guardianship
appointments. A National Conference of Commissioners on Uniform State
Laws, held in July of this year, issued a discussion draft for a uniform
state law addressing these issues.

Following issuance of GAO's 2004 report, a joint conference of
professional guardianship organizations agreed on a set of action steps to
implement previously-released recommendations from a group of experts on
adult guardianship, known as the Wingspan recommendations. Among other
things, these action steps call for licensing, certifying, or registering
professional guardians.
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