Guardianships
Collaboration Needed to Protect Incapacitated Elderly People Gao ID: GAO-04-655 July 13, 2004As people age, some become incapable of managing their personal and financial affairs. To protect these people, state laws provide for court appointment of guardians to act on their behalf. In many cases federal programs provide these incapacitated people financial benefits. GAO was asked to examine: (1) what state courts do to ensure that guardians fulfill their responsibilities, (2) what guardianship programs recognized as exemplary do to ensure that guardians fulfill their responsibilities, and (3) how state courts and federal agencies work together to protect incapacitated elderly people.
All states have laws requiring courts to oversee guardianships, but court implementation varies. Most require guardians to submit periodic reports, but do not specify court review of these reports. Interstate jurisdictional issues sometimes arise when states do not recognize guardianships originating in other states. Most courts responding to our survey did not track the number of active guardianships, and few indicated the number of incapacitated elderly people under guardianship. Four courts recognized by members of the National Guardianship Network as having exemplary guardianship programs devote staff to strong programs for guardianship training and oversight. Three of these courts offer training to guardians even though state law does not require it. Three also have programs in which volunteers or social work student interns visit people under guardianship and report on their condition. Although state 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. Some courts send notices of guardianship to the Department of Veterans Affairs and the Social Security Administration, but generally coordination among federal agencies and courts is not systematic. Federal agencies and courts do not systematically notify other agencies or courts when they identify someone as incapacitated, or when they discover that a guardian or a representative payee is abusing the incapacitated person. This lack of coordination may leave incapacitated people without the protection of responsible guardians and representative payees.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-04-655, Guardianships: Collaboration Needed to Protect Incapacitated Elderly People
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Report to the Chairman, Special Committee on Aging, U.S. Senate:
United States General Accounting Office:
GAO:
July 2004:
GUARDIANSHIPS:
Collaboration Needed to Protect Incapacitated Elderly People:
GAO-04-655:
GAO Highlights:
Highlights of GAO-04-655, a report to the Chairman, Special Committee
on Aging, U.S. Senate:
Why GAO Did This Study:
As people age, some become incapable of managing their personal and
financial affairs. To protect these people, state laws provide for
court appointment of guardians to act on their behalf. In many cases
federal programs provide these incapacitated people financial benefits.
GAO was asked to examine: (1) what state courts do to ensure that
guardians fulfill their responsibilities, (2) what guardianship
programs recognized as exemplary do to ensure that guardians fulfill
their responsibilities, and (3) how state courts and federal agencies
work together to protect incapacitated elderly people.
What GAO Found:
All states have laws requiring courts to oversee guardianships, but
court implementation varies. Most require guardians to submit periodic
reports, but do not specify court review of these reports. Interstate
jurisdictional issues sometimes arise when states do not recognize
guardianships originating in other states. Most courts responding to
our survey did not track the number of active guardianships, and few
indicated the number of incapacitated elderly people under
guardianship.
Four courts recognized by members of the National Guardianship Network
as having exemplary guardianship programs devote staff to strong
programs for guardianship training and oversight. Three of these
courts offer training to guardians even though state law does not
require it. Three also have programs in which volunteers or social work
student interns visit people under guardianship and report on their
condition.
Although state 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. Some courts send
notices of guardianship to the Department of Veterans Affairs and the
Social Security Administration, but generally coordination among
federal agencies and courts is not systematic. Federal agencies and
courts do not systematically notify other agencies or courts when they
identify someone as incapacitated, or when they discover that a
guardian or a representative payee is abusing the incapacitated person.
This lack of coordination may leave incapacitated people without the
protection of responsible guardians and representative payees.
Courts and Federal Agencies Have Responsibilities for Protecting
Incapacitated Elderly People:
[See PDF for image]
[End of figure]
What GAO Recommends:
GAO recommends that (1) the Social Security Administration lead an
interagency/state court group to study options for prompt and
systematic information sharing for the protection of incapacitated
elderly people and that (2) the Department of Health and Human
Services provide support to states and national organizations involved
in guardianship programs in efforts to compile national data on the
incidence of abuse with and without the assignment of a guardian or
representative payee and to review state policies for interstate
transfer and recognition of guardianship appointments. HHS, Office of
Personnel Management (OPM), and VA agreed with the recommendations.
SSA disagreed, citing privacy issues.
www.gao.gov/cgi-bin/getrpt?GAO-04-655.
To view the full product, including the scope and methodology, click on
the link above. For more information, contact Barbara Bovbjerg at (202)
512-7215 or bovbjergb@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
State Laws Provide for Court Oversight of Guardianships, but Court
Procedures Vary:
Courts Recognized as Exemplary Focus on Training and Monitoring:
State Courts and Federal Representative Payee Programs Serve Many of
the Same Incapacitated Elderly People, but Collaborate Little in
Oversight Efforts:
Conclusions:
Recommendations:
Agency Comments:
Appendix I: Scope and Methodology:
Appendix II: GAO Surveys of Courts in California, Florida, and
New York:
Appendix III: Results from GAO Surveys of Courts in California,
Florida, and New York:
Appendix IV: Comments from the Office of Personnel Management:
Appendix V: Comments from the Department of Veterans Affairs:
Appendix VI: Comments from the Department of Health and Human Services:
Appendix VII: Comments from the Social Security Administration:
Appendix VIII: GAO Contacts and Staff Acknowledgments:
GAO Contacts:
Staff Acknowledgments:
Tables:
Table 1: Characteristics of Selected Federal Representative Payee
Programs:
Table 2: Few Surveyed Courts Tracked the Number of Elderly People with
Guardians the Courts Oversee:
Table 3: Characteristics of Courts Recognized as Exemplary:
Table 4: Training and Information Resources for Guardians in the Four
Courts:
Table 5: Oversight Procedures in the Four Courts:
Table 6: Many Elderly People Receive Benefits from More than One
Federal Agency:
Table 7: Representative Payee Programs' Gathering and Exchange of
Information:
Figures:
Figure 1: Courts and Federal Agencies Have Responsibilities for
Protecting Incapacitated Elderly People:
Figure 2: How Often Guardians' Accounting Reports Must Be Submitted
Varies by State:
Figure 3: Federal Agencies and the Courts May or May Not Assign
Representative Payee and Guardianship Responsibilities to the Same
Individual:
Abbreviations:
HHS: Department of Health and Human Services:
OPM: Office of Personnel Management:
SSA: Social Security Administration:
VA: Department of Veterans Affairs:
United States General Accounting Office:
Washington, DC 20548:
July 13, 2004:
The Honorable Larry E. Craig:
Chairman:
Special Committee on Aging:
United States Senate:
Dear Mr. Chairman:
As people age, some of them become incapable of caring for themselves
and must rely on a guardian--a person or entity appointed to make
decisions for them. In the United States, the number of people
requiring a guardian is expected to increase considerably in the years
ahead. The number of elderly people (those aged 65 and older) is
expected to increase substantially over the next several decades, and
the number of people aged 85 and older is expected to triple by 2040 to
15 million. The Census Bureau estimates that about one-quarter of the
people in this older age group has Alzheimer's disease, which may lead
to dementia that is severe enough that people become incapable of
caring for themselves.[Footnote 1] Generally, adults are identified as
incapacitated when they become physically or mentally incapable of
making or communicating important decisions, such as those required in
handling finances or securing possessions. In many cases, incapacitated
adults are elderly, but in many other cases they are not, and generally
the same laws and procedures apply to all incapacitated adults. Often,
family members can provide assistance, but sometimes a state or local
court needs to appoint a guardian to act on behalf of the incapacitated
person.[Footnote 2] The guardian becomes responsible for making
decisions to protect the incapacitated person from financial and
physical abuse or neglect, and the incapacitated person loses decision-
making rights.
Although guardianship is a state responsibility, there are many
incapacitated elderly people who receive federal benefits, and this
group of people may need federal agencies to identify a representative
payee--a person or organization designated to handle those benefits on
their behalf. State and local courts are responsible for oversight of
guardianship appointments, and federal agencies are responsible for
oversight of representative payees. Courts and federal agencies have
identified instances in which guardians or representative payees have
taken advantage of incapacitated elderly people by, for example,
stealing from them or billing for services not provided. Such cases of
abuse and neglect of elders by guardians and representative payees have
prompted questions about the oversight of these programs.
As part of your committee's focus on aging issues, you asked us to
study guardianships for the elderly and the representative payee
programs of federal agencies such as the Social Security Administration
(SSA), the Department of Veterans Affairs (VA), and the Office of
Personnel Management (OPM), which manages retirement programs for
federal employees. In response to your request, we examined: (1) what
state courts do to ensure that guardians fulfill their
responsibilities, (2) what exemplary guardianship programs do to ensure
that guardians fulfill their responsibilities, and (3) how state courts
and federal agencies work together to protect incapacitated elderly
people. To study these topics, we reviewed state statutes and conducted
surveys of courts responsible for guardianships in the three states
with the largest elderly populations--California, Florida, and New
York. Forty-two of 58 courts in California, 55 of 67 courts in Florida,
and 9 of 12 judicial districts in New York responded to our surveys. We
also visited courts in eight states and interviewed officials
responsible for representative payee programs at SSA, VA, and OPM and
officials at the Department of Health and Human Service's
Administration on Aging. In addition, we visited 4 courts identified by
members of the National Guardianship Network (a joint council
representing eight national organizations involved in guardianship
issues) as having exemplary guardianship programs. We conducted our
work between March 2003 and May 2004 in accordance with generally
accepted government auditing standards. (For details concerning our
scope and methodology, see app. I.)
Results in Brief:
All states have laws requiring courts to oversee guardianships, but
court implementation of these laws varies. At a minimum, most states'
laws require guardians of the person to submit a periodic report to the
court regarding the well being of the incapacitated person and
guardians of the estate to provide an accounting of the incapacitated
person's finances. Many states' statutes also authorize measures that
courts can use to enforce guardianship responsibilities, such as
termination of the guardianship appointment or imposition of fines for
failure to fulfill guardianship responsibilities. Often states do not
recognize guardianships originating in other states, which can raise
jurisdictional issues. In addition to variations among states' laws,
courts we studied have quite varied procedures for implementing
guardianship requirements in state law. For example, most California
and Florida courts responding to our survey require guardians to submit
time and expense records to support petitions for compensation, but
both states also have courts that do not require these reports. Some
courts also take steps beyond what is required by state statutes. For
example, some courts require that guardians receive more training than
the minimum required by law. Although information, such as the number
of people with guardians, is needed for effective oversight of
guardianships, it is neither required, nor generally available from the
courts. One-third or fewer of the responding courts tracked the number
of active guardianships for incapacitated adults and only a few in each
state provided the number of those who were elderly.
Judges for four courts widely recognized as having exemplary
guardianship programs devote staff to the management of guardianships,
allowing the courts to specialize and develop programs for guardianship
training and oversight. For example, the court we visited in Florida
provided comprehensive reference materials for guardians to supplement
training. The other three courts offered training to guardians even
though state law does not require it. Three of the exemplary courts
have programs in which volunteers or student interns visit people under
guardianship and report on their condition to the court. For example,
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 or cases in which guardians have failed to submit required
reports.
Although state 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. For example, some
courts may send notice of guardianship appointments to SSA, allowing
the federal agency to determine whether the court-appointed guardian
could also act as a representative payee. Federal agencies may also
provide information about incapacitated beneficiaries to courts to help
assess the incapacitated person's income and whether the guardian needs
to coordinate with a payee. However, coordination between federal
agencies and state and local courts does not take place systematically,
nor do federal agencies systematically share information with one
another. For example, if VA does not notify SSA when it identifies
someone as incapacitated, SSA may not learn that one of its
beneficiaries may need a representative payee. Similarly, courts
identifying a guardian who has abused or neglected an incapacitated
person do not automatically notify the federal agency that assigned the
guardian as a representative payee. Thus, an incapacitated person may
remain at risk of having an identified abuser in charge of his or her
benefit payments. The extent to which this is a problem is unknown,
because current efforts to compile statistical data by Adult Protective
Service agencies and the Justice Department's Bureau of Justice
Statistics do not identify cases of elder abuse involving guardians or
representative payees. Few courts provide a basis for estimating how
many incapacitated elderly people have guardians. Without such data,
the extent to which improvements in guardian and representative payee
oversight are needed remains unknown.
We are making recommendations to the Social Security Administration,
Office of Personnel Management, the Department of Health and Human
Services (HHS), and the Department of Veterans Affairs concerning
interagency and state and federal collaboration in efforts to plan and
implement cost-effective measures to systematically compile and share
information needed to enhance the protection of incapacitated elderly
people. We provided a draft of this report to each of these agencies
and received written comments on the draft from all four. See
appendixes IV, V, VI, and VII for their comments. VA, OPM, and HHS
agreed with our conclusions and indicated their willingness to
participate in the study group and other efforts we are recommending.
SSA disagreed with our recommendations concerning an interagency study
group, citing differences in federal agency and state court policies
regarding protection of the incapacitated, the difficulties that would
be involved, and requirements of the Privacy Act that it believes would
preclude the kind of information sharing we recommend that SSA and the
other agencies study.
Background:
The number of people age 65 and older will nearly double by the year
2030 to 71 million. An estimated 6 percent of people aged 65 or older
have Alzheimer's disease, a degenerative condition that may lead to
dementia.[Footnote 3] Over time, some elderly adults may become
physically or mentally incapable of making or communicating important
decisions, such as those required to handle finances or secure their
possessions. In addition, while some incapacitated adults may have
family members who can assume responsibility for their decision-making,
many elderly incapacitated people do not. The Census Bureau predicts
that in the future the elderly population will be more likely to live
alone and less likely to have family caregivers. 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, and appoint someone to assume durable
power of attorney, or establish a trust. However, such arrangements may
not provide sufficient protection. Some federal agencies do not
recognize durable powers of attorney for managing federal benefits.
SSA, for example, 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.[Footnote 4] 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.[Footnote 5] 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.
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 representative payee has already been
assigned to an incapacitated person by a federal agency. 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 a process for initiating and evaluating petitions
for guardianship appointment. Generally, state laws require that a
petition be filed with the court and notice be provided to the alleged
incapacitated person and other people with a connection to the person.
In nearly all states, the alleged incapacitated person is granted the
right to be present at the hearing, and the right to counsel. Most
states require clear and convincing evidence of a person's incapacity
before a guardian can be appointed. The court may appoint a family
member, friend, attorney, a paid private professional, a nonprofit
social service agency, or a local public agency to serve as the
guardian.
Figure 1: Courts and Federal Agencies Have Responsibilities for
Protecting Incapacitated Elderly People:
[See PDF for image]
[End of figure]
In many cases, both courts and federal agencies have responsibilities
for protecting incapacitated elderly people, as shown in figure 1. 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. Social Security officials sometimes designate the
nursing home where the incapacitated person resides as the
representative payee because it provides for direct payment to the
nursing home, ensuring continuity of care for the incapacitated
person.[Footnote 6]
Table 1: Characteristics of Selected Federal Representative Payee
Programs:
Characteristics: Benefit programs with representative payees;
SSA: Old Age and Survivors, Disability Insurance, and Supplemental
Security Income;
OPM: Civil Service Retirement System, Federal Employee Retirement
System;
VA: VA Compensation, VA Pension, and other VA programs providing cash
benefits.
Characteristics: Beneficiaries age 65 and older with representative
payee;
SSA: 717,623[A];
OPM: 5,161[B];
VA: 46,449[C].
Characteristics: Beneficiaries of all ages with representative payee;
SSA: 6,863,785[A];
OPM: 11,157[B];
VA: 100,239[C].
Characteristics: Estimated benefits paid in fiscal year 2003 to all
beneficiaries with representative payees;
SSA: $43 billion[D];
OPM: $115 million;
VA: $1 billion.
Source: SSA, OPM, and VA data.
[A] As of December 2003.
[B] As of November 2002.
[C] As of September 30, 2003.
[D] Annualized estimate based on data for December 2002.
[End of table]
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 may 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. The following are examples of abuse by
guardians and representative payees provided by courts and federal
agencies:
* A guardian and an employee of the guardian's law firm brought a
nursing home resident in New York a cake and flowers on her birthday
and billed her $850 for the visit using hourly rates for legal
services.
* Rather than using electronic direct deposit, a guardian in New York
City appointed to protect an incapacitated person regularly traveled to
their branch bank in another borough to deposit her monthly $50 Social
Security check, charging her $300 per deposit.
* A company in Michigan acting as guardian for more than 600
incapacitated people committed felonies against them, including selling
one individual's home to a relative of a company employee for $500.
* A woman in the position of Public Fiduciary at the Gila County Public
Fiduciary's Office in Arizona served as guardian of incapacitated
people and in that capacity embezzled and misused a total of at least
$1.2 million of public funds. The county's investigation concluded that
"the Court's lack of oversight contributed to the enormous loss of
public monies."
* A woman in Washington State established a nonprofit service
organization that SSA designated as the representative payee for about
200 beneficiaries. One of her clients was a homeless man entitled to
retroactive payment of benefits totaling about $15,000. She received
the payment on his behalf, but used the money as her own, along with
SSA benefits for others. She embezzled a total of approximately
$107,000 of SSA benefits.
* A guardian and representative payee for veterans pled guilty to four
counts of misappropriation after a joint VA and SSA Office of Inspector
General investigation substantiated allegations that he had embezzled
over $400,000 from the veterans' estates.
* The head of a foundation in West Virginia serving as a representative
payee for 140 people (including veterans and elderly people) embezzled
over $300,000 from them over a 4-year period, consisting mostly of
Social Security benefits.
State Laws Provide for Court Oversight of Guardianships, but Court
Procedures Vary:
All 50 states and the District of Columbia have statutes providing for
state or local court oversight of guardianship appointments, but court
procedures for implementing these laws vary considerably. Generally,
guardians submit periodic reports to the court, but courts' procedures
for reviewing reports vary, as do procedures for monitoring
guardianships and the penalties courts impose when guardians do not
perform their duties. Jurisdictional issues, such as courts in 2 states
being asked to appoint a guardian for the same incapacitated person,
sometimes complicate guardianship appointments. In addition, most state
courts surveyed do not maintain information needed for effective
monitoring and oversight of guardianships.
State Laws Require Courts to Oversee Guardianships, but Jurisdictional
Issues Complicate Oversight:
State laws provide for court appointment and oversight of
guardianships. Nearly all states require two kinds of reports: one
regarding the personal status and well being of the incapacitated
person and another regarding the accounting of the person's finances.
The personal status reports usually include information regarding the
condition of the incapacitated person, although many states require
more specific information regarding various aspects of the
incapacitated person's status. In many states, the laws require the
report to include documentation of the need for continued guardianship.
Many statutory requirements are very detailed and require a physician's
statement, a determination of the mental status of the incapacitated
person, or in some instances, reports of any change in the condition of
the incapacitated person. Other basic report elements may include
living conditions, place of residence, and the number of guardian
visits. Some states may allow courts to waive certain reporting
requirements.
Most states require that guardians submit a financial accounting and
record of expenditures for the care of the incapacitated person on an
annual basis. This document may list the assets and income of the
incapacitated person, including bank balances, real property holdings,
and detailed expenses associated with the care and housing of the
incapacitated person. State statutes usually require court approval for
the sale of real estate by a guardian.
How often guardians are required to submit reports varies. Most states
require guardians to submit personal status reports at least annually.
Only the District of Columbia's law requires submission at least
semiannually. Statutory requirements for filing financial accountings
range from annually to at least once every 3 years. (See fig. 2.) In
states where accounting frequency requirements are left to the
discretion of the courts, the minimum requirement is that an accounting
be made upon resignation or removal of the guardian. In many states,
there is an explicit requirement that court personnel take action when
reports are not filed on time. In Texas, if a guardian of the person
fails to file a report or a guardian of the estate fails to file an
annual accounting, the guardianship appointment expires.
Figure 2: How Often Guardians' Accounting Reports Must Be Submitted
Varies by State:
[See PDF for image]
[End of figure]
Some state statutes require an independent party or court personnel to
determine the accuracy and validity of personal status and accounting
reports. However, fewer than half of the states require courts to
review the reports guardians have submitted to them. Other states leave
it to the court to determine who reviews the reports. For example,
Texas specifies that a statutory probate[Footnote 7] court must review
filings as part of the annual determination of the continued need for a
guardianship, but provides that courts of general jurisdiction may use
any appropriate method determined by the court according to the court's
caseload and resources available" in order to assess the continued need
for a guardianship.
Apart from requirements for review of the submitted reports, some
states' statutes require a periodic review of the guardianships to
ensure that guardians are adequately fulfilling their responsibilities
and there is a continuing need for the guardianship. In some states, an
investigator will visit the incapacitated person to determine whether
there is a continuing need for a guardianship or if the current
guardian should be terminated and a new one appointed. For example,
Alaska requires courts to evaluate incapacitated persons every 3 years.
Some states hold a hearing to assess the continuing need for a
guardianship. For example, Connecticut law requires a hearing every 3
years to determine if any changes need to be made to the guardianship
appointment.
Many states' laws authorize penalties that courts can impose to enforce
guardianship responsibilities. These most frequently include
termination of the guardianship appointment or imposition of fines for
failure to fulfill responsibilities. Some states have statutes
providing for the denial of guardianship fees while others authorize
penalties against negligent or ineffective guardians, including
charging the guardian with contempt of court, imprisonment, restitution
for mismanagement of property, recovery of assets and surcharges, or
loss of bond. Many other state statutes allow hearings at the court's
discretion or in response to a petition.
Some states are reluctant to recognize guardianships originating in
other states, leading to jurisdictional complications. The 1998 Uniform
Guardianship and Protective Procedures Act has been adopted into many
states' statutes. This act gives courts the power to exercise
jurisdiction when an incapacitated person is moved or travels from one
state to another. However, these provisions may not sufficiently
address all complications that arise in guardianships for the elderly
such as when more than one jurisdiction is asked to appoint a guardian
for the same incapacitated person. For example, a guardian appointed in
one state that attempts to sell an incapacitated person's real property
located in another state may need to travel to that state and petition
a court there in order to establish authority to act on behalf of the
incapacitated person. Interstate jurisdictional issues also arise when
the guardian or the incapacitated person needs to move to another
state. Issues may also occur in cases involving the physical removal of
an incapacitated person from one jurisdiction to another in an effort
to gain control over the incapacitated person.
Courts' Procedures for Implementing State Laws Vary:
While some state statutes specify minimal requirements for overseeing
guardians, individual courts may set their own, sometimes more
stringent, requirements and standards. The courts in the 3 states we
surveyed (California, Florida, and New York) implemented their state
laws through reporting and oversight procedures. (See app. III for a
state-by-state compilation of survey results.)
Within the 3 states, court procedures varied for the submission and
review of reports guardians are required to submit. Most courts
responding to our survey require an initial inventory of assets,
income, and liabilities, and courts in Florida and New York typically
require annual financial statements or accountings. Most courts in
Florida and New York require some or all guardians to submit a
financial plan detailing how the guardian will manage the financial
affairs of the incapacitated person. Most of the responding courts in
California and Florida and all of the responding judicial districts in
New York indicated they require some or all guardians to petition or
inform the court if plans for the incapacitated person's care change.
Nearly all of the courts responding to our survey in each state
indicated that judges, court personnel, or court examiners review
guardians' reports, and a few courts use volunteers.
In each state surveyed, when guardians receive pay for services, the
pay varies. We asked courts about compensation approved in the last 12
months before responding to our survey. Most courts indicated that some
guardian compensation was based on an hourly rate. In New York, rates
typically ranged from $25 to $400 per hour, in California they ranged
from $7 to $250 per hour, and in Florida they ranged from $8 to $85 per
hour.[Footnote 8] In other cases, guardians' compensation was based on
the value of an elderly incapacitated person's estate but, while most
judicial districts in New York had allowed this, few courts in Florida
and about one-quarter of the courts in California had. In each state,
most courts responding to our survey required all guardians to submit
time and expense records to support petitions for compensation, but
other courts in each state only require these reports for some
guardians.
In all 3 states, responding courts reported a variety of measures for
guardianship oversight. Most California courts indicated that court
personnel visit all or almost all the incapacitated people, and several
responding Florida courts and two New York judicial districts indicated
they had court personnel visit some or most of the incapacitated
people. Most responding courts reported that they ask questions raised
by guardians' reports, send follow-up letters to conservators, or send
notices or orders to appear in court when reports are late, incomplete,
or inaccurate.
Most responding courts in each state indicated they had imposed some
kinds of penalties when guardians failed to fulfill their
responsibilities. The most commonly used measures included withholding
or reducing guardianship compensation, terminating guardianship
appointments, and contempt of court citations. Several courts indicated
they had done one or more of these things more than 10 times during the
past 3 years. A 1999 California State law established a statewide
registry of private professional guardians and requires courts to
notify the registry when a complaint against a guardian is valid. Only
one court indicated it had yet notified the registry of a guardian's
resignation or removal for cause.[Footnote 9] Eleven responding courts
in California and 9 in Florida indicated they had convicted guardians
of a crime against the incapacitated person. In New York, 2 judicial
districts had notified the state registry of a guardian's resignation
or removal for cause and 1 had convicted a guardian of a crime against
an incapacitated person.
Most Courts Surveyed Do Not Track the Number of Active Guardianships:
In each state surveyed, some information needed for effective oversight
of guardianships, such as the number of people with guardians, was
generally not available. In each of the 3 states, one-third or fewer of
the responding courts tracked the number of all guardianships for
adults that they were responsible for monitoring, and only a couple of
courts in each state provided us with the number of these guardianships
that were for incapacitated people aged 65 and older. (See table 2.)
California courts report the number of probate and guardianship filings
they handle each year, including guardianships, probate of decedents'
estates, and trusts--for a total of 50,786 filings in fiscal years
2001-2002. The state court administration does not, however, require a
separate count of guardianship filings for adults or the elderly.
Table 2: Few Surveyed Courts Tracked the Number of Elderly People with
Guardians the Courts Oversee:
Provided number of people aged 65 and older with guardians[B];
Number of courts[A]: California: 2;
Number of courts[A]: Florida: 2;
Number of judicial districts in New York: 2.
Provided the number of people with guardians, but not number of those
aged 65 and older;
Number of courts[A]: California: 8;
Number of courts[A]: Florida: 9;
Number of judicial districts in New York: 1.
Provided neither;
Number of courts[A]: California: 32;
Number of courts[A]: Florida: 44;
Number of judicial districts in New York: 6.
Did not respond to survey;
Number of courts[A]: California: 16;
Number of courts[A]: Florida: 12;
Number of judicial districts in New York: 3.
Total number of courts and New York State judicial districts;
Number of courts[A]: California: 58;
Number of courts[A]: Florida: 67;
Number of judicial districts in New York: 12.
Source: GAO surveys of courts in California, Florida, and judicial
districts in New York.
[A] GAO sent surveys to California superior courts in each California
county and to Florida circuit courts in each Florida county. GAO sent
similar surveys to each New York State judicial district. The
population of people 65 years of age or older was about 3.7 million in
California, 2.8 million in Florida, and 2.4 million in New York as of
July 2001.
[B] Includes one California court that indicated it had no elderly
people with a guardian, but did not provide the number of all people
(elderly and non-elderly) with guardians.
[End of table]
In 1999, amendments to California law established a statewide registry
of private professional guardians, providing courts information about
prospective guardians' experience and a record of complaints and cases
in which they have had a guardianship appointment terminated for cause.
(The names of people on the registry are available to the public.)
Florida also maintains a statewide registry of most professional
guardians, but registration is not required of nonprofessional
guardians.[Footnote 10] New York also maintains a list of private
professional fiduciaries, including guardians. However, most of the
courts responding to our survey in each state indicated that less than
half of the guardians they appointed were on the state registry. Many
of the guardians appointed are family members or friends of the
incapacitated elderly person.
Most courts surveyed said they did not have sufficient funds for
guardianship oversight.[Footnote 11] Often the courts handling
guardianship matters handle several kinds of cases. In each state, one-
fifth or fewer of the judges who hear guardianship cases in the
responding courts spend a majority of their time on them. Judges who
spend little of their time on guardianship cases tend to focus on each
case as it comes up on their calendar and find it difficult to devote
the time and resources needed to develop an effective guardianship
program, according to some officials at courts recognized as exemplary,
but others disagreed saying that general jurisdiction courts can also
provide good oversight of guardians. In Florida, about one-fifth of the
judges in courts responding to our survey spend the majority of their
time on guardianship cases. While in California and New York 17 percent
and 12 percent of judges, respectively, spend a majority of their time
on these cases.
Courts Recognized as Exemplary Focus on Training and Monitoring:
Each of the four courts recognized as exemplary went well beyond
minimum state requirements for guardianship training and oversight.
Each court provides training of guardians, even though training is only
required in one of the state's statutes. (See table 3.) The courts also
actively utilize computerized case management, court visitor programs,
in-depth review of annual reports, or investigations by court employees
to oversee guardianship cases. Two court officials told us that
specialization allows courts to focus on issues specific to
guardianships and try new strategies to improve the court's oversight
of guardians.
Table 3: Characteristics of Courts Recognized as Exemplary:
Type of court;
Broward County, Fla.: Probate court;
Rockingham County, N.H.: Probate court;
San Francisco County, Calif.: Probate Department of the Superior Court;
Tarrant County, Tex. Probate Court #2: Probate court.
Number of people under guardianship;
Broward County, Fla.: 5,000 to 6,000[A];
Rockingham County, N.H.: 679[B];
San Francisco County, Calif.: 1,350[C];
Tarrant County, Tex. Probate Court #2: 978[D].
People under guardianship who are elderly;
Broward County, Fla.: About half;
Rockingham County, N.H.: More than half;
San Francisco County, Calif.: About three-quarters;
Tarrant County, Tex. Probate Court #2: 299[E].
Source: Court officials and documents.
[A] The court does not keep count of the number of individuals under
guardianship as this is done by the Clerk of Court in Florida as an
independent constitutional officer. Court officials estimate, based
upon the Clerk of Court reports, that there are between 5,000 and
6,000 open guardianship cases for adults and children.
[B] As of December 31, 2003. Number includes adult cases only (minor
guardianships tracked separately).
[C] Includes adult cases only (minor cases are called guardianships
and are tracked separately).
[D] As of June 2004, including guardianships of adults and children.
[E] As of June 2004.
[End of table]
Courts Recognized as Exemplary Provide Training and Sources of
Information Resources for Guardians:
The courts recognized as exemplary provide training and/or information
resources for guardians. (See table 4.) Of the 4 states in which the
courts recognized as exemplary are located, only Florida requires
guardians to receive training, but Broward County provides training
beyond what is required in state law for nonprofessional guardians and
provides supplemental reference materials, such as a software program
for preparing guardianship reports.[Footnote 12] The courts in San
Francisco and Tarrant County, Texas, also provide independently
developed training for guardians. For example, as of January 2004, the
San Francisco court required professional and nonprofessional guardians
alike to complete formal classroom training.[Footnote 13] Working in
partnership with a group of professional guardians, the court developed
a required half-day training course that nonprofessional guardians must
complete within 6 months of their appointment.
Table 4: Training and Information Resources for Guardians in the Four
Courts:
Broward County, Fla;
Training requirements in state law:
* Nonprofessional: 8 hours (4 hours parent of minor child.);
* Professional: 40 hours, plus 16 continuing education hours every 2
years;
* Courses must be certified by state;
Court procedures exceeding state law:
* Requires 12-hour course for nonprofessional guardians and a 48-hour
course for professional guardians;
* Handbook, required forms, required software for preparing
guardianship reports, court procedures, and answers to frequently
asked questions available on Web site.[A].
Rockingham County, N.H;
Training requirements in state law:
* None specified;
Court procedures exceeding state law:
* Provides information packet and checklist;
* Offers informal information sessions with judge;
* Provides video explaining guardianship;
* Forms, information packet, and checklist available on Web site.
San Francisco County, Calif;
Training requirements in state law:
* Required to provide handbook and resource supplement book for local
resources;
Court procedures exceeding state law:
* Nonprofessionals: must complete up to 6 hours of court-supervised
training. Those appointed guardian of person must complete a 3-hour
course and those appointed guardian of estate must complete another 3-
hour course;
* Professionals: complete certificate program at university or
demonstrate equivalent experience;
* Guardians are required to watch video.
Tarrant County, Tex;
Training requirements in state law:
* None specified;
Court procedures exceeding state law:
* Court staff provides 20-30 minute training and handbook;
* Training also available at local organization offering guardianship
services.
Source: Court officials and documents.
[A] The court requires that guardians use this software to prepare
initial inventories, initial plans, annual plans, annual accountings,
and simplified accounting reports.
[End of table]
Courts Recognized as Exemplary Actively Oversee Guardianships:
Each of the exemplary courts uses at least one means to actively
oversee guardianships, and while each will penalize guardians who fail
to fulfill their responsibilities, two courts dedicate extra resources
to enforcement activities. These two, Rockingham County and Tarrant
County, oversee guardianship cases through computerized case management
systems. The system in Rockingham County automatically notifies court
staff when reports are due for each guardianship case. For example,
when a guardianship of the estate is established, the system prints a
notice to the guardian that an inventory of the incapacitated person's
assets must be submitted to the court within 90 days. If the court has
not received the inventory, the system notifies court staff that an
inventory default notice is needed. This system also tracks the number
of new guardianship cases and the total number of active cases.
Similarly, Tarrant County enters information about each new
guardianship case into a database. Each month the court generates a
list of annual reports that are due and mails the guardians the
required report form. The court also enters the date the report is
received into the database.
Two of the courts have developed procedures for in-depth review of
guardians' reports. In Florida, the state statute requires that the
clerk of the court review each guardianship report to ensure that it
contains the appropriate information. Broward County has implemented a
three-tiered sampling system for reviewing the reports from the
substantial caseload of approximately 5,000 guardianships. All reports
are subject to the first level of review, which is conducted by the
Audit Division of the Clerk of the Court's office. A further sample of
reports is selected, and the Audit Division conducts a more intensive
second level review. At the third level of review, a further sample of
reports is selected, and the audit division conducts detailed in-house
and field audits of supporting documentation to verify the information
in the reports. If these reviews indicate any irregularities, the Audit
Division sends a memorandum to the judge to review the report and the
auditor's findings. Tarrant County also employs an auditor who is
responsible for monitoring guardianships of the estate. The auditor
uses a database to track when guardians' reports are due. Twice a
month, the auditor checks this database to ensure that no reports are
overdue or overlooked.
As shown in table 5, each court recognized as exemplary uses a visitor
program to support guardianship oversight. Tarrant County is required
by state law to have court visitors monitor the status of people under
guardianship, so the court provides visitation internships to social
work students who work as court visitors.[Footnote 14] A licensed
Master Social Worker on the court staff acts as program manager and
trains and supervises the interns. The students receive course credit,
and the program is of little cost to the court. There are typically 4
or 5 interns making an average of 60-70 visits each month. The visitors
submit a report of the visit to the program manager for review, and the
judge reviews these reports to guide his or her decision on whether to
continue the guardianship for an additional year.
Rockingham County recruits volunteers from AARP to serve as either
visitors or researchers. Researchers prepare files for the court with
contact information, case background, and the last annual guardian's
report. The visitors then contact the guardian and arrange to visit the
incapacitated person. They assess the ward's living situation,
finances, health, and social activities, and recommend follow-up
actions to the court. A court employee serves as the volunteer
coordinator. According to the volunteer coordinator in Rockingham
County, costs are minimal because volunteers use court telephones, and
the state provides supplies. According to the court, the detailed,
first-hand information provided about the incapacitated person's
environment and condition helps the court make better decisions when
the case is reviewed.
Table 5: Oversight Procedures in the Four Courts:
Broward County, Fla;
Requirements in state law: Monitoring:
* Court may require background investigation of nonprofessionals;
* Court must require initial background investigation of professionals
and reinvestigate every 2 years;
* Clerk's office is required to audit guardian reports;
* Registration of professional guardians;
* Bond required for all;
Requirements in state law: Enforcement:
* Court may employ court monitors;
* Show cause hearing, etc., for delinquent reports;
Court procedures exceeding state laws:
* Background investigations of all guardians required;
* Background investigations required annually;
* 3-tiered report review system;
* Electronic reporting software;
* The Office of the Public Guardian--a publicly funded agency that
serves as a guardian, which is one of only a handful in the state;
* Full-time court monitor on staff and part-time contractors to
investigate abuse.
Rockingham County, N.H;
Requirements in state law: Monitoring:
* Bond required for all guardians;
* Criminal background check required for guardians of the person;
Requirements in state law: Enforcement:
* Court may issue show cause order, fine guardian, arrest guardian, or
terminate guardianship for failure to file reports;
Court procedures exceeding state laws:
* Volunteer Court Visitor program;
* Follow-up on court visitor recommendations.
San Francisco County, Calif;
Requirements in state law: Monitoring:
* Court investigators visit incapacitated people 1st year then every
other year;
* Status reports required for guardians of estate who are also
guardians of person;
* Statewide registration system for professionals;
* Full bond on all liquid assets required for all guardians;
Requirements in state law: Enforcement:
* Punish or remove guardian, suspend powers, appoint legal counsel, or
granting a 60-day extension;
Court procedures exceeding state laws:
* General Plan required for all guardianships;
* Status report required for all guardianships of person after first
year then every other year even if no guardianship of estate exists;
* Examiners review accountings;
* Yearlong study on guardianship data;
* More frequent investigations on troubled cases;
* Investigations on all petitions for termination of guardianship.
Tarrant County, Tex;
Requirements in state law: Monitoring:
* Court visitor program;
* Annual renewal of guardianship letters;
* Judge considers and approves annual accounts;
* Criminal background check for professionals required;
* Bond required for all guardians;
Requirements in state law: Enforcement:
* Show cause hearing, fine, or removal if necessary;
* Court investigator investigates complaints;
* Authority to sentence guardians to jail for misconduct;
Court procedures exceeding state laws:
* Court visitors are social work students;
* Database system to track open cases;
* Auditor reviews annual accounts;
* Program Manager follows up on concerns in guardian and court visitor
reports before judge's review;
* Criminal background checks for nonprofessional guardians in court-
initiated guardianship.
Source: Court officials and documents.
[End of table]
When guardians fail to fulfill their responsibilities, the courts have
legal authority to penalize guardians, and two of the courts recognized
as exemplary have staff dedicated to investigating these types of
cases. Broward County employs court monitors to investigate abuse
allegations involving guardians, or problems discovered due to annual
background checks, report review, or other tips. A study of statewide
guardianship monitoring practices found that Broward County conducts
about 400 field investigations a year, some of which have resulted in
referrals to the state attorney for prosecution.
State Courts and Federal Representative Payee Programs Serve Many of
the Same Incapacitated Elderly People, but Collaborate Little in
Oversight Efforts:
Federal agencies and state courts' representative payee programs
collaborate little to protect incapacitated people and prevent misuse
of federal benefits. Although overlap is known to occur among the
incapacitated populations they serve, the extent of this overlap is not
known. Some state courts and federal agencies share certain information
on a case-by-case basis. However, the absence of a systematic means for
compiling and exchanging pertinent information may leave many
incapacitated people at risk and result in the misuse of benefits and
increased federal expense. State courts and federal agencies lack
consistent and sustained compilations of data needed to assess options
for improving oversight of guardians and representative payees.
Beneficiary Populations Overlap, but Coordination Is on a Case-by-Case
Basis:
The incapacitated populations served by state courts and federal
agencies overlap to some extent. Because we focused on incapacitated
elderly people, we did not assess overlaps between agencies' general
beneficiary populations. (See table 6.) An estimated 95 percent of all
people 65 and older are SSA recipients, and elderly recipients of OPM
or VA benefits often also receive SSA payments. An estimated 96 percent
of VA beneficiaries aged 65 and older are also SSA recipients and about
9 percent are OPM beneficiaries. Also, an estimated 82 percent of OPM
elderly beneficiaries are also SSA beneficiaries. While there are no
data on the number of beneficiaries who are incapacitated in each
category, it is likely that a number of incapacitated people are
beneficiaries from more than one federal agency, and a number could
also have court-appointed guardians.
Table 6: Many Elderly People Receive Benefits from More than One
Federal Agency:
Agencies providing benefits[A]: SSA and VA;
Estimated number of beneficiaries aged 65 or older[A]: 1,164,000[B].
Agencies providing benefits[A]: SSA and OPM;
Estimated number of beneficiaries aged 65 or older[A]: 1,191,000.
Agencies providing benefits[A]: VA and OPM;
Estimated number of beneficiaries aged 65 or older[A]: 109,000.
Agencies providing benefits[A]: SSA, VA, and OPM;
Estimated number of beneficiaries aged 65 or older[A]: 100,000.
Source: Census Bureau analysis of Survey of Income and Program
Participation (SIPP) Data, 2001, Wave 6 survey results.
[A] Each estimate includes beneficiaries listed in other rows. For
example, about 100,000 of the estimated 1,164,000 people aged 65 or
older who were beneficiaries of both SSA and VA were also OPM
beneficiaries.
[B] The 90 percent confidence interval for this estimate is from 1.0 to
1.3 million elderly people.
[End of table]
Like many courts that oversee guardianship programs, federal agencies
collect certain information from representative payees.[Footnote 15]
SSA annually sends each representative payee (whether a court-appointed
guardian or not) a two-page report form asking for certain information-
--for example, whether the representative payee was convicted of a
felony, whether the beneficiary continued to live in the same
circumstances, how much of the benefit payments were spent on the
beneficiary's behalf, how much was saved, and in what kind of account
the funds are held.[Footnote 16] Similarly, OPM biennially sends its
representative payees a brief survey asking for similar information,
though those who are court-appointed guardians are not required to
complete the survey. OPM leaves it to the courts to monitor these
payees. VA also requires its representative payees to submit a two-page
accounting report, but asks payees who are court-appointed guardians to
submit the same accountings that they submit to the court. Each agency
sends follow-up mailings, and SSA and VA visit payees as needed in
cases where payees fail to submit a report. In addition, VA sends field
examiners to visit each incapacitated beneficiary. Agency officials
indicated that these efforts often help identify cases in which
beneficiaries or representative payees have moved or cases where a
payee may need to be replaced for a variety of reasons. For example,
they may no longer be living close enough to the beneficiary or they
themselves have become unable to handle the benefit payments.
Typically, however, cases of abuse come to the agencies' attention by
way of tips from individuals who know of the beneficiary rather than
from report and survey follow-up efforts.
Some state courts and federal agencies share certain information about
some beneficiaries on a case-by-case basis. Some state court officials
that we spoke with indicated that they have established a rapport with
staff in local offices of federal agencies, such as SSA and VA, and are
able to obtain information concerning incapacitated beneficiaries or
their representative payees. (See table 7.) For example, upon request,
federal agencies will sometimes provide them with information to allow
the court to determine all sources of the incapacitated person's income
and whether the guardian needs to coordinate with a payee. State courts
may also offer information to federal agencies. For example, some
courts send occasional notices of guardianship appointment to SSA,
allowing SSA staff to identify which of their beneficiaries is
incapacitated and determine if the guardian can be designated as a
representative payee.
While coordination is often case-by-case, some takes place more
systematically and is based on previously established agreements. For
example, about one-third of the states have adopted the Uniform
Veterans' Guardianship Act that requires state courts to notify VA when
they appoint a guardian for a veteran. According to this act, VA must
receive copies of court orders and accountings related to the veteran's
case. The act also gives VA the right to appear in court during
guardianship proceedings involving a veteran.
Federal agencies may also establish agreements with one another to
exchange information. For example, SSA allows a limited number of VA
service representatives nationwide to electronically access some SSA
information about veterans' SSA benefits. This SSA data system includes
the amount of SSA benefits veterans receive, whether SSA has identified
them as incapacitated, and the identity of a representative payee, if
one has been designated. VA officials regularly look at SSA's
information before conducting a field examination to help determine
incapacity and choose a fiduciary, according to a VA official
responsible for managing the agency's fiduciary program. VA is not,
however, notified when SSA changes a beneficiary's representative
payee. Many VA representative payee program staff that do not currently
have access to the database see it as a useful tool and have expressed
a desire to be able to use it in order to more efficiently assess
beneficiaries' needs.[Footnote 17]
Lack of Systematic Coordination Weakens Oversight of Incapacitated
People:
The lack of systematic coordination weakens the oversight of both
elderly and non-elderly incapacitated people and may leave
incapacitated people at risk of not being assigned a representative
payee or guardian despite having been identified either by a state or
federal entity as a person who needs one. For example, if a federal
agency has identified one of its beneficiaries as incapacitated and
assigns a representative payee, the agency does not systematically
notify the courts or other agencies. (See table 7.) The other agencies
making payments to the same person may not learn that they may need to
assign a representative payee to handle their benefit payments to the
person. Such notification could also be useful to state courts in
assessing the need for a guardian. This lack of coordination could
leave the incapacitated person who needs a representative payee or
guardian without one.
Table 7: Representative Payee Programs' Gathering and Exchange of
Information:
Information gathered or exchanged: Ask whether incapacitated
beneficiary has a court-appointed guardian?
SSA: Yes;
OPM: Yes;
VA: Yes.
Information gathered or exchanged: Compile names of guardians not
designated as agency's payee?
SSA: No;
OPM: Not applicable[A];
VA: No.
Information gathered or exchanged: Give other agencies/courts access
to database with name of representative payee?
SSA: Yes, VA access only;
OPM: No;
VA: No.
Information gathered or exchanged: Systematically notify other
agencies/courts of assignment of a representative payee?
SSA: No;
OPM: No;
VA: Not other agencies, courts in some cases[B].
Information gathered or exchanged: Systematically notify other
agencies/courts of the replacement of a representative payee?
SSA: No;
OPM: No;
VA: Not other agencies, courts in some cases[B].
Source: GAO interviews with SSA, OPM, and VA officials.
[A] OPM's policy is to designate the guardian as the representative
payee.
[B] A VA official indicated that VA typically informs the court by
letter if it selects a new or successor representative payee other than
one who was previously appointed by the court.
[End of table]
Insufficient interagency coordination may also leave incapacitated
elderly people more vulnerable to abuse or neglect. For example, when
an agency identifies a representative payee who is abusing or
neglecting an incapacitated person, it does not automatically notify
the state court or other federal agencies that have assigned a guardian
or representative payee. Without such a notification, the court or
other federal agency may be unaware of the need to replace an abusive
or negligent guardian or representative payee.
If agencies and courts do not communicate with each other concerning
incapacitated beneficiaries, they may unknowingly assign different
people as representative payees or guardians with overlapping
responsibilities. However, in some cases, agencies and courts
intentionally select different people or organizations as
representative payee or guardian. Although most Old Age, Survivor, and
Disability Insurance beneficiaries with both a guardian and SSA-
designated representative payee, have the same person serving in both
roles, for an estimated 19 percent of these beneficiaries the guardian
is not their representative payee.[Footnote 18] Some guardians choose
not to be the representative payee, so SSA designates someone else.
(See fig. 3.) Sometimes VA designates a nursing home as a
representative payee, even though a court has appointed a family member
or other person to be the incapacitated resident's guardian. The
guardian and the nursing home may get into conflict over the use of the
incapacitated person's benefit payments. Additional coordination among
federal agencies and courts and cooperation among guardians and
representative payees may be necessary to avoid conflicts and better
protect the incapacitated person.
Figure 3: Federal Agencies and the Courts May or May Not Assign
Representative Payee and Guardianship Responsibilities to the Same
Individual:
[See PDF for image]
[End of figure]
Federal officials have recognized the need for better exchange of
information regarding incapacitated beneficiaries. In response to
provisions in the Omnibus Budget Reconciliation Act of 1990, SSA and VA
studied the feasibility of collaborating in serving veterans who were
also SSA beneficiaries.[Footnote 19] In 1993, several agencies
participated in a discussion group on representative payee programs.
Two of the agencies--SSA and VA--signed an agreement calling for each
agency to notify the other when it had information that could be
helpful to the other agency's oversight of its representative
payee.[Footnote 20] However, according to VA and SSA officials, efforts
to implement the agreement failed due to changes in management
personnel, concerns about costs, and issues concerning nondisclosure of
confidential information.
Not only is it likely that the lack of coordination limits the
protection of incapacitated people and their federal benefits, it may
also result in increased federal expenditures. The recently enacted
Social Security Protection Act of 2004 requires SSA to repay the
benefits in certain cases of misuse.[Footnote 21] For example, if a
representative payee that is an organization, or an individual serving
15 or more beneficiaries misuses the benefit payments, SSA will have to
reissue the misused benefits to the beneficiaries or to an alternate
representative payee, resulting in increased federal expenditures.
Before the passage of this act, SSA was only required to replace
benefits if SSA was negligent in its oversight of a representative
payee. Annually, SSA has found fewer than 1,000 cases of misuse, and
only in a small percentage of those cases was SSA found to be
negligent. However, according to an SSA official, the new provisions
may mean that more benefits will have to be reissued.
Statistical Data to Analyze Options for Improving Oversight Not
Available:
Certain data, such as the number of active guardianships and incidence
of abuse, could help courts and agencies determine the effectiveness of
efforts to protect incapacitated people but are not currently
available. The courts we surveyed generally do not compile aggregate
data such as the number of incapacitated people, or elderly
incapacitated people, with guardians. Often the only records concerning
guardianship appointments aside from a calendar of upcoming hearings
and due dates for required reports are in individual paper files. Some
states, however, are making efforts to compile statewide data on
guardianships. In Vermont, for example, the Supreme Court compiles
reports from each court on the number of open guardianship cases, but
without any information on the age of the incapacitated people. In New
York, the state court's Guardian and Fiduciary Services is working on
the development of a statewide database on guardians, fiduciaries, and
the people they were appointed to serve.
The federal agencies that we examined, SSA, VA, and OPM, do more to
compile data on representative payees than most courts responding to
our 3-state survey do for incapacitated people with guardians. All
three of the federal agencies that we examined have databases that keep
count of the different types of representative payees for incapacitated
people. Neither SSA nor VA, however, consistently compiles information
showing how many beneficiaries with representative payees have a court-
appointed guardian who is not the representative payee.[Footnote 22]
To keep these databases current, all three agencies require most of
their representative payees to submit periodic reports. SSA, VA, and
OPM compile and maintain basic information, such as contact
information, about the representative payees they designate. They also
ask whether an incapacitated beneficiary has a court-appointed guardian
before designating a representative payee. They do not, however,
compile and maintain more detailed information that could contribute to
more effective oversight of representative payees. For example, none of
these agencies consistently records information about a beneficiary's
court-appointed guardian in its computerized records system or updates
the information unless the agency also designates the court-appointed
guardian as its beneficiary's representative payee. Although SSA
compiles some information about the reasons it replaces representative
payees, such as the assignment of a more suitable payee, misuse of
benefits, or fraud, for example--OPM and VA do not. This information
might be useful in making future assignments.
Sufficient data are not available to determine the incidence of abuse
of incapacitated people by guardians or representative payees, nor the
extent to which guardians and representative payees are protecting
incapacitated people from abuse. Current efforts to compile aggregate
national data on elder abuse do not identify cases when a guardian or
representative payee has been assigned to the victim of abuse, or
whether a guardian or representative payee commits the abuse. States
compile statistics on incidence of abuse and neglect, including
information on the age of victims.[Footnote 23] National associations
collect these statistics from Adult Protective Service agencies and
Area Agencies on Aging. Generally, states track types of abuse and some
of the relationships between perpetrators and victims, but they do not
track instances where the victim had been assigned a guardian or
representative payee or had granted a power of attorney to someone. As
a result, federal agencies lack national data concerning the incidence
of elder abuse by guardians and representative payees or the incidence
of abuse with and without the assignment of a guardian or
representative payee. Similarly, national crime statistics, such as
crime victimization surveys, identify various relationships between
victims and perpetrators, and the age of victims, but fail to identify
cases involving guardians or representative payees. SSA tracks the
number of cases in which representative payees are found to have
misused benefits--fewer than a 1,000 cases each year for beneficiaries
of all ages. SSA officials agreed, however, that since SSA largely
relies on tips from third parties to discover cases of misuse, their
records of misuse might be incomplete.
Conclusions:
Although state and local courts have primary responsibility for
protecting incapacitated people, including the elderly, by appointing
and overseeing guardians, federal agencies also have responsibilities
to help protect many of the same incapacitated people through
representative payee programs. Yet, courts and federal agencies
collaborate little in the protection of incapacitated elderly people
and the protection of federal benefit payments from misuse. Court and
agency efforts to improve protection of the incapacitated is limited by
their failure to systematically compile and exchange data--by, for
example, promptly notifying each other when an incapacitated person is
identified or a representative payee or guardian is appointed or needs
to be replaced, due to their failure to fulfill their responsibilities,
or for other reasons. However, the extent to which the courts and
agencies leave elderly incapacitated people at risk is unknown. Neither
the states nor the federal government compile data concerning the
incidence of abuse of people assigned a guardian or representative
payee or even the number of elderly people with guardians. Without
better statistical data concerning the size of the incapacitated
population or how effectively it is being served, it will be difficult
to determine precisely what kinds of efforts may be appropriate to
better protect incapacitated elderly people from exploitation, abuse,
and neglect.
Improvements in oversight of guardians and representative payees depend
in part on additional efforts by states, state and local courts,
federal agencies, state area agencies on aging, and HHS. Although the
focus of our review was elderly incapacitated people, state
guardianship and federal representative payee programs also serve other
incapacitated adults. Improvements could be of benefit to all
incapacitated adults, particularly if they are designed with both the
elderly and non-elderly in mind. However, certain actions that would
improve oversight are not currently being undertaken. For example, the
various entities responsible for oversight do not collaborate to
compile, on a continuing basis, consistent national data concerning
guardianships and representative payees. Without such statistical data,
the extent of preventable abuse and neglect of incapacitated elderly
people is unknown. Finally, the states have done little to collaborate
on interstate recognition and transfer of guardianship appointments.
Few states 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 can be a problem
when an incapacitated elderly person needs to move to another state or
the guardian needs to conduct business in another state on his or her
behalf. The need to establish a new guardianship in another state
because of these gaps in states' law can make it difficult for
guardians and the courts that supervise them to ensure that they
fulfill their responsibilities.
The prospect of increasing numbers of incapacitated elderly people in
the year's 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.
Recommendations:
To increase the ability of representative payee programs to protect
federal benefit payments from misuse, SSA should convene an interagency
study group that includes representatives from HHS, federal agencies
with representative payee programs, including VA and OPM, and state
courts that wish to participate in order to study the costs and
benefits of options for improving interagency cooperation and federal-
state cooperation in the protection of incapacitated elderly and non-
elderly people. Options may include:
* prompt and systematic sharing among federal agencies' representative
payee programs of information such as the identity of individuals who
are incapacitated, the identity of those individuals' designated
guardians and representative payees, the identity of guardians and
representative payees who fail to fulfill their duties, and the
assignment of successor guardians and successor representative payees;
and:
* prompt and systematic sharing of similar information among federal
agencies and courts responsible for guardianships that choose to
participate.
Information-sharing initiatives must be designed in a manner that is
cost-effective, respectful of privacy rights, and consistent with
federal nondisclosure requirements concerning confidential
information.
To facilitate state efforts to improve oversight of guardianships and
to aid guardians in the fulfillment of their responsibilities, the
Department of Health and Human Services should work with national
organizations involved in guardianship programs, such as the those
represented on the National Guardianship Network, to provide support
and leadership to the states for cost-effective pilot and demonstration
projects to:
* develop cost-effective approaches for compiling, on a continuing
basis, consistent national data concerning guardianships to aid in the
management of programs for protecting incapacitated adults, such as the
age of the incapacitated person, the type of guardian appointed, etc;
* study options for compiling data from federal agencies and state
agencies, such as Adult Protective Services 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, and in cases in which the
victim did not have a fiduciary; and:
* review state policies and procedures concerning interstate transfer
and recognition of guardianship appointments to facilitate efficient
and cost-effective solutions for interstate jurisdictional issues.
Agency Comments:
We provided a draft of this report to SSA, OPM, VA, and HHS and
received written comments on the draft from all four. See appendixes
IV, V, VI, and VII for their responses.
SSA disagreed with our recommendation concerning an interagency study
group. It views the study we recommend as something beyond its purview.
Although SSA shares concern about incapacitated people's general
welfare, it stated that its responsibility focuses on ensuring that any
SSA benefits incapacitated people receive are used for their
maintenance and welfare. SSA stated that systematic sharing of
information among federal agencies and state courts would be extremely
difficult and a study group focusing on such sharing would not be
within SSA's purview. SSA also commented that efforts to coordinate
with state courts must meet Privacy Act requirements, and in that
regard they noted that there is currently no statement of routine use
allowing SSA to share representative payee information with state
courts. Because state courts, SSA, and other federal agencies have such
different policies regarding representative payees and guardians, SSA
believes that it is constrained by the Privacy Act in releasing
information.
We believe that the systematic exchange of data could help SSA better
ensure that SSA benefits are used for incapacitated people's
maintenance and welfare. The interagency study group should be able to
develop policies allowing for the sharing of information consistent
with the Privacy Act and other applicable nondisclosure requirements.
We believe that an interagency study group could identify carefully
specified kinds of information that under specified circumstances could
be shared among limited numbers of federal and state court officials
with jurisdiction over guardianships in a manner that is consistent
with the Privacy Act and other applicable nondisclosure requirements.
SSA and the other federal agencies involved have the authority to
develop statements of routine use to provide for such exchange of
information. They currently have such agreements in place to share data
with other federal agencies, such as SSA's sharing of information
concerning its representative payees with a limited number of VA staff.
Although exchange of data among federal agencies with representative
payee programs may be easier to establish than exchange between federal
agencies and state courts, further study is warranted to assess the
feasibility of such exchange and the extent to which it could enable
courts and federal agencies to better protect incapacitated elderly
people.
VA and OPM agreed with our conclusions pertaining to their agencies,
indicating that they look forward to participating in the study group
we are recommending. VA noted wide variations in state guardianship
laws and procedures, the need for federal agencies and state courts to
share information on cases of common interest, and the current lack of
systematic information sharing among federal agencies state agencies,
and state courts relating to the protection of elderly beneficiaries.
OPM suggested that we assert that it would be to the federal
government's benefit, either in terms of efficiency or savings, to
create systems for sharing information on guardians or representative
payees. OPM also urged that we add to the report statistics
demonstrating the efficiency of coordination with state courts.
Although adding these would strengthen the report, data necessary to do
so are not currently available. Our findings strongly suggest that
savings and greater efficiency would result from collaboration, but the
extent to which this is the case will not be known until agencies and
state courts start collaborating in efforts to assess overlaps in the
populations of incapacitated people they serve, incidence of abuse, and
the costs and benefits of data exchange.
HHS agreed that guardians should be adequately trained and monitored,
and that governmental agencies and courts should coordinate their
efforts and share information concerning guardians and representative
payees. HHS plans to carry out our recommendation to study options for
compiling data from federal agencies 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. This year the National
Center on Elder Abuse will survey all state adult protective services
agencies to determine the incidence of elder abuse reports and the
characteristics of victims and perpetrators. The center plans to ask
states to cite the number or percentage of perpetrators of elder abuse
who served as the victims' powers of attorney, guardians, or
representative payees. HHS also plans to explore cost-effective pilot
and demonstration projects to develop approaches for compiling
guardianship data and to facilitate solutions for interstate
jurisdictional issues. It also agreed to serve on an interagency study
group to develop options for improving interagency cooperation and
federal-state cooperation in the protection of incapacitated elderly
and non-elderly people.
As agreed with your office, unless you publicly announce its contents
or authorize its release sooner, we will not distribute it until 30
days from the date of issuance. At that time, we will send copies of
this report to the Commissioner of Social Security, the Director of the
Office of Personnel Management, the Secretary of Health and Human
Services, and the Secretary of Veterans Affairs. We will also make
copies available to others on request. In addition, the report will be
available at no charge on GAO's Web site at http://www.gao.gov/.
If you have any questions concerning this report, please contact
Barbara Bovbjerg or Alicia Puente Cackley at (202) 512-7215. See
appendix VIII for other contacts and staff acknowledgments.
Sincerely yours,
Signed by:
Barbara D. Bovbjerg:
Director, Education, Workforce, and Income Security Issues:
[End of section]
Appendix I: Scope and Methodology:
Our review included a review of state laws on guardianship, the
development and administration of surveys of state courts in 3 states,
visits to 15 courts in 8 states, and interviews with federal officials
at the Social Security Administration (SSA), Department of Veterans
Affairs (VA), Office of Personnel Management (OPM), and the Department
of Health and Human Services (HHS). In addition, one member of the team
completed a 2-day training program for professional guardians in
Washington State and two attended a conference of the National
Guardianship Association. We conducted our review between March 2003
and May 2004 in accord with generally accepted government auditing
standards.
To determine what state courts do to ensure that guardians fulfill
their responsibilities, we studied both states' laws concerning
guardianship and court practices, particularly those concerning court
oversight of guardians. Our review of states' laws relied in part on
the compilations prepared by the American Bar Association Commission on
Law and Aging. To review court practices we limited our scope to courts
with jurisdiction over guardianships for the elderly in the three
states with the largest elderly populations (residents aged 65 and
older)--California, New York, and Florida. Together these three states
account for about one-quarter of the nation's elderly population. We
administered similar survey instruments tailored to the courts in each
of these states. We refined the survey instruments based on pretest
visits to court officials at three counties in California, three
counties in Florida, and two counties in New York. We sent finalized
survey instruments to California Superior Courts in each of
California's 58 counties, to circuit courts in each of Florida's 67
counties, and to each of New York's 12 judicial districts. We received
usable survey responses from 42 California courts, 55 Florida courts,
and 9 of New York's judicial districts for response rates of 72
percent, 82 percent, and 75 percent, respectively. Several courts
provided responses to some items, but no responses to other items in
the survey instrument. For details on the numbers of responses to each
item and a compilation of responses by state, see appendix III. We
reviewed courts' survey responses for consistency, but did not
independently review the accuracy of the court officials' responses.
To determine what guardianship programs recognized as exemplary do to
ensure that guardians fulfill their responsibilities we visited 4
courts to study their procedures. We selected the four courts by
contacting members of the National Guardianship Network and asking them
which courts throughout the nation they regard as having exemplary
practices.[Footnote 24] The four courts we selected were each
identified as exemplary by two or more members of the network. We
visited each of the courts and interviewed judges, probate directors,
monitoring staff, volunteers, legal staff, and others. In two of the
courts, we attended guardianship hearings. We reviewed each of the
court's documents concerning probate procedures including state laws,
rules of court, training materials, forms, and written and Web site
documents. We also examined examples of guardianship case files.
To determine to what extent do state courts and federal agencies
coordinate their efforts to protect incapacitated elderly people, we
interviewed court officials in each of the four courts recognized as
exemplary and in several additional courts. We attended the National
Guardianship Association's conference including sessions concerning
guardianships and VA and guardianships and the Healthcare Insurance
Portability and Privacy Act of 1996.[Footnote 25] We met with a group
of conference attendees, including judges, probate lawyers, and
guardians, to discuss federal agencies' interactions with guardians and
courts. We also reviewed documents provided by court officials
concerning specific cases in which federal agencies were involved in
guardianship cases. We also interviewed officials at SSA, VA, OPM, and
HHS and reviewed applicable regulations and policy manuals and
handbooks.
[End of section]
Appendix II: GAO Surveys of Courts in California, Florida, and New
York:
The following are surveys GAO mailed to the California Superior Court
in each of the 58 counties in California, the Florida Circuit Courts in
each of the 67 counties in Florida, and the 12 Judicial Districts in
New York. For summary results of the survey, see appendix III.
[See PDF for image]
[End of figure]
[End of section]
Appendix III: Results from GAO Surveys of Courts in California,
Florida, and New York:
Below are tabulations of survey responses received from 42 of the 58
superior courts in California, 55 of the 67 superior courts in Florida,
and 9 of the 12 judicial districts in New York. In some cases,
respondents to the survey did not respond to particular items in the
survey.
Court Policies and Procedures:
Which of the following resources are available to guardians appointed
by your court?[A] (Check one for each resource.)
A. Summary of statutory duties of guardians;
California: Yes: 31;
California: No: 5;
Florida: Yes: 18;
Florida: No: 30;
New York: Yes: 6;
New York: No: 2.
B. List of resources and contacts for guardians (e.g., Area Agencies on
Aging, county/state support agencies, etc.);
California: Yes: 25;
California: No: 10;
Florida: Yes: 14;
Florida: No: 30;
New York: Yes: 6;
New York: No: 3.
C. Training classes;
California: Yes: 2;
California: No: 29;
Florida: Yes: 30;
Florida: No: 20;
New York: Yes: 7;
New York: No: 2.
D. Training video;
California: Yes: 18;
California: No: 19;
Florida: Yes: 13;
Florida: No: 33;
New York: Yes: 7;
New York: No: 2.
E. Guardian handbook or manual;
California: Yes: 40;
California: No: 1;
Florida: Yes: 17;
Florida: No: 29;
New York: Yes: 6;
New York: No: 3.
F. Online reporting forms;
California: Yes: 4;
California: No: 24;
Florida: Yes: 5;
Florida: No: 39;
New York: Yes: 3;
New York: No: 6.
G. Examples of model reports;
California: Yes: 8;
California: No: 24;
Florida: Yes: 10;
Florida: No: 33;
New York: Yes: 7;
New York: No: 2.
H. Other (please specify);
California: Yes: 2;
California: No: 5;
Florida: Yes: 2;
Florida: No: 5;
New York: Yes: 1;
New York: No: 0.
[A] Surveys to courts in California use the term "conservators." In
California guardians are appointed to protect minors and conservators
are appointed to protect adults. For convenience, for the purposes of
this report, we use the term "guardian" rather than "conservator."
[End of table]
Does your court require formal training (e.g., classes, videos,
instructional meetings) for any of the following types of guardians?
(Check one for each row.)
A. Guardians who are family members or friends;
Training required for: California: All: 10;
Training required for: California: Some: 3;
Training required for: California: None: 27;
Training required for: Florida: All: 31;
Training required for: Florida: Some: 16;
Training required for: Florida: None: 6;
Training required for: New York: All: 4;
Training required for: New York: Some: 4;
Training required for: New York: None: 1.
B. Guardians who are attorneys;
Training required for: California: All: 9;
Training required for: California: Some: 1;
Training required for: California: None: 31;
Training required for: Florida: All: 8;
Training required for: Florida: Some: 5;
Training required for: Florida: None: 38;
Training required for: New York: All: 4;
Training required for: New York: Some: 2;
Training required for: New York: None: 3.
C. Guardians (not family members, friends or attorneys) who are paid
from public sources (e.g., social service agencies, etc.);
Training required for: California: All: 6;
Training required for: California: Some: 3;
Training required for: California: None: 31;
Training required for: Florida: All: 28;
Training required for: Florida: Some: 9;
Training required for: Florida: None: 11;
Training required for: New York: All: 3;
Training required for: New York: Some: 0;
Training required for: New York: None: 5.
D. Guardians (not family members, friends or attorneys) who are paid
from the income or assets of the incapacitated person (e.g., non-
attorneys on the state registry);
Training required for: California: All: 9;
Training required for: California: Some: 5;
Training required for: California: None: 27;
Training required for: Florida: All: 37;
Training required for: Florida: Some: 9;
Training required for: Florida: None: 6;
Training required for: New York: All: 4;
Training required for: New York: Some: 2;
Training required for: New York: None: 3.
E. Others (please specify);
Training required for: California: All: 1;
Training required for: California: Some: 0;
Training required for: California: None: 8;
Training required for: Florida: All: 0;
Training required for: Florida: Some: 1;
Training required for: Florida: None: 7;
Training required for: New York: All: 1;
Training required for: New York: Some: 0;
Training required for: New York: None: 0.
[End of table]
Does your court require guardians of the property to submit
documentation of the following items, either separately or as part of
a report? (Check one for each item.)
Guardians of the property: A. Initial inventory of assets, income, and
liabilities;
California: Required for all: 38;
California: Required for some: 3;
California: Not required: 1;
Florida: Required for all: 53;
Florida: Required for some: 2;
Florida: Not required: 0;
New York: Required for all: 9;
New York: Required for some: 0;
New York: Not required: 0.
Guardians of the property: B. Annual financial statements or
accountings;
California: Required for all: 13;
California: Required for some: 11;
California: Not required: 3;
California: Annual, then biennial[A]: 15;
Florida: Required for all: 50;
Florida: Required for some: 5;
Florida: Not required: 0;
New York: Required for all: 9;
New York: Required for some: 0;
New York: Not required: 0.
Guardians of the property: C. More frequent than annual financial
statements or accountings;
California: Required for all: 0;
California: Required for some: 9;
California: Not required: 30;
Florida: Required for all: 0;
Florida: Required for some: 15;
Florida: Not required: 39;
New York: Required for all: 0;
New York: Required for some: 2;
New York: Not required: 7.
Guardians of the property: D. Less frequent than annual financial
statements or accountings;
California: Required for all: 5;
California: Required for some: 14;
California: Not required: 6;
California: Annual, then biennial[A]: 15;
Florida: Required for all: 0;
Florida: Required for some: 10;
Florida: Not required: 43;
New York: Required for all: 0;
New York: Required for some: 2;
New York: Not required: 7.
Guardians of the property: E. Written financial plan;
California: Required for all: 5;
California: Required for some: 9;
California: Not required: 26;
Florida: Required for all: 18;
Florida: Required for some: 12;
Florida: Not required: 24;
New York: Required for all: 3;
New York: Required for some: 5;
New York: Not required: 1.
Guardians of the property: F. Written report and/or petition when
plans change;
California: Required for all: 9;
California: Required for some: 12;
California: Not required: 18;
Florida: Required for all: 25;
Florida: Required for some: 7;
Florida: Not required: 21;
New York: Required for all: 8;
New York: Required for some: 1;
New York: Not required: 0.
Guardians of the property: G. Other (please specify);
California: Required for all: 3;
California: Required for some: 1;
California: Not required: 6;
Florida: Required for all: 0;
Florida: Required for some: 0;
Florida: Not required: 3;
New York: Required for all: 0;
New York: Required for some: 0;
New York: Not required: 0.
[A] California state law generally requires an accounting and report by
the end of the first year following the appointment and at 2-year
intervals (biennially) thereafter.
[End of table]
Does your court require guardians of the person to submit documentation
of the following items, either separately or as part of a report?
(Check one for each item.)
Guardians of the person: A. Initial description of personal status;
California: Required for all: 31;
California: Required for some: 3;
California: Not required: 8;
California: Annual, then biennial[A]: 0;
Florida: Required for all: 51;
Florida: Required for some: 2;
Florida: Not required: 2;
New York: Required for all: 9
New York: Required for some: 0;
New York: Required for some: 0.
Guardians of the person: B. Annual personal status reports;
California: Required for all: 9;
California: Required for some: 9;
California: Not required: 18;
California: Annual, then biennial[A]: 3;
Florida: Required for all: 46;
Florida: Required for some: 6;
Florida: Not required: 2;
New York: Required for all: 7;
New York: Required for some: 2;
New York: Required for some: 0.
Guardians of the person: C. More frequent than annual personal status
reports;
California: Required for all: 1;
California: Required for some: 8;
California: Not required: 29;
California: Annual, then biennial[A]: 0;
Florida: Required for all: 0;
Florida: Required for some: 10;
Florida: Not required: 44;
New York: Required for all: 0;
New York: Required for some: 4;
New York: Required for some: 5.
Guardians of the person: D. Less frequent than annual personal status
reports;
California: Required for all: 9;
California: Required for some: 10;
California: Not required: 18;
California: Annual, then biennial[A]: 2;
Florida: Required for all: 0;
Florida: Required for some: 6;
Florida: Not required: 48;
New York: Required for all: 0;
New York: Required for some: 1;
New York: Required for some: 8.
Guardians of the person: E. Written plan for personal care;
California: Required for all: 7;
California: Required for some: 8;
California: Not required: 23;
California: Annual, then biennial[A]: 1;
Florida: Required for all: 44;
Florida: Required for some: 6;
Florida: Not required: 5;
New York: Required for all: 7;
New York: Required for some: 1;
New York: Required for some: 1.
Guardians of the person: F. Written report and/or petition when plans
change;
California: Required for all: 9;
California: Required for some: 12;
California: Not required: 19;
California: Annual, then biennial[A]: 0;
Florida: Required for all: 31;
Florida: Required for some: 10;
Florida: Not required: 13;
New York: Required for all: 9;
New York: Required for some: 0;
New York: Required for some: 0.
Guardians of the person: G. Other (please specify);
California: Required for all: 3;
California: Required for some: 0;
California: Not required: 5;
California: Annual, then biennial[A]: 0;
Florida: Required for all: 1;
Florida: Required for some: 0;
Florida: Not required: 3;
New York: Required for all: 0;
New York: Required for some: 0;
New York: Required for some: 0.
[A] California state law generally requires an accounting and report by
the end of the first year following the appointment and at 2-year
intervals (biennially) thereafter.
[End of table]
Monitoring Guardianships:
How sufficient is your court's funding for monitoring guardianships?
(Check one.)
A. Much more than sufficient;
California: 0;
Florida: 0;
New York: 0.
B. More than sufficient;
California: 0;
Florida: 0;
New York: 0.
C. Sufficient;
California: 7;
Florida: 15;
New York: 2.
D. Less than sufficient;
California: 13;
Florida: 5;
New York: 1.
E. Much less than sufficient;
California: 9;
Florida: 5;
New York: 2.
F. No funds available for this purpose;
California: 10;
Florida: 28;
New York: 3.
[End of table]
Do courts in your county require that guardians of the property be
bonded? (Check one.)
A. Yes, for all or almost all;
California: 26;
Florida: 15;
New York: 4.
B. Yes, for some;
California: 13;
Florida: 36;
New York: 4.
C. Not required for guardians of the property;
California: 3;
Florida: 4;
New York: 1.
[End of table]
Do courts in your county require background checks on guardians of the
property? (Check one.)
A. Yes, for all or almost all;
California: 15;
Florida: 8;
New York: 2.
B. Yes, for some;
California: 10;
Florida: 31;
New York: 1.
C. Not required for guardians of the property;
California: 17;
Florida: 13;
New York: 6.
[End of table]
Do courts in your county require background checks on guardians of the
person? (Check one.)
A. Yes, for all or almost all;
California: 17;
Florida: 7;
New York: 1.
B. Yes, for some;
California: 8;
Florida: 28;
New York: 2.
C. Not required for guardians of the person;
California: 17;
Florida: 17;
New York: 6.
[End of table]
Other than relying on reports by guardians, which, if any, of the
following strategies does your court use after the initial hearing to
assess the personal status of people who have guardians appointed by
the court? (Check one for each strategy.)
Court strategy: California: A. Personal visits by court official;
All almost all the cases: 32;
Most cases: 3;
About half the cases: 0;
Some cases: 1;
No cases: 5.
Court strategy: California: B. Personal visits by persons outside the
court, other than the appointed guardian;
All almost all the cases: 3;
Most cases: 1;
About half the cases: 0;
Some cases: 10;
No cases: 23.
Court strategy: California: C. Periodic hearings on the continued need
for guardianship;
All almost all the cases: 20;
Most cases: 5;
About half the cases: 2;
Some cases: 8;
No cases: 5.
Court strategy: California: D. Other (please specify);
All almost all the cases: 1;
Most cases: 0;
About half the cases: 0;
Some cases: 1;
No cases: 8.
Court strategy: Florida: A. Personal visits by court official;
All almost all the cases: 0;
Most cases: 0;
About half the cases: 0;
Some cases: 7;
No cases: 44.
Court strategy: Florida: B. Personal visits by persons outside the
court, other than the appointed guardian;
All almost all the cases: 1;
Most cases: 0;
About half the cases: 1;
Some cases: 6;
No cases: 45.
Court strategy: Florida: C. Periodic hearings on the continued need for
guardianship;
All almost all the cases: 0;
Most cases: 4;
About half the cases: 1;
Some cases: 14;
No cases: 32.
Court strategy: Florida: D. Other (please specify);
All almost all the cases: 2;
Most cases: 0;
About half the cases: 0;
Some cases: 3;
No cases: 7.
Court strategy: New York: A. Personal visits by court official;
All almost all the cases: 0;
Most cases: 1;
About half the cases: 0;
Some cases: 1;
No cases: 7.
Court strategy: New York: B. Personal visits by persons outside the
court, other than the appointed guardian;
All almost all the cases: 1;
Most cases: 0;
About half the cases: 0;
Some cases: 3;
No cases: 5.
Court strategy: New York: C. Periodic hearings on the continued need
for guardianship;
All almost all the cases: 0;
Most cases: 1;
About half the cases: 1;
Some cases: 5;
No cases: 2.
Court strategy: New York: D. Other (please specify);
All almost all the cases: 0;
Most cases: 0;
About half the cases: 0;
Some cases: 0;
No cases: 0.
[End of table]
Who reviews financial and personal status reports submitted by
guardians appointed by your court? (Check one for each type of
reviewer.)
Court strategy: California: A. A judge;
All/almost all the cases: 30;
Most cases: 1;
About half the cases: 0;
Some cases: 7;
No cases: 1.
Court strategy: California: B. Court personnel other than judges;
All/ almost all the cases: 25;
Most cases: 2;
About half the cases: 0;
Some cases: 1;
No cases: 11.
Court strategy: California: C. Volunteers;
All/almost all the cases: 1;
Most cases: 0;
About half the cases: 0;
Some cases: 2;
No cases: 30.
Court strategy: California: D. Government agencies other than the
court;
All/almost all the cases: 0;
Most cases: 0;
About half the cases: 0;
Some cases: 5;
No cases: 27.
Court strategy: California: E. Other (please specify);
All/almost all the cases: 6;
Most cases: 0;
About half the cases: 0;
Some cases: 1;
No cases: 10.
Court strategy: Florida: A. A judge;
All/almost all the cases: 28;
Most cases: 2;
About half the cases: 0;
Some cases: 6;
No cases: 6.
Court strategy: Florida: B. Court personnel other than judges;
All/ almost all the cases: 47;
Most cases: 0;
About half the cases: 0;
Some cases: 0;
No cases: 4.
Court strategy: Florida: C. Volunteers;
All/almost all the cases: 0;
Most cases: 0;
About half the cases: 0;
Some cases: 1;
No cases: 36.
Court strategy: Florida: D. Government agencies other than the court;
All/almost all the cases: 4;
Most cases: 0;
About half the cases: 0;
Some cases: 6;
No cases: 28.
Court strategy: Florida: E. Other (please specify);
All/almost all the cases: 7;
Most cases: 0;
About half the cases: 1;
Some cases: 3;
No cases: 5.
Court strategy: New York: A. A judge;
All/almost all the cases: 5;
Most cases: 0;
About half the cases: 0;
Some cases: 1;
No cases: 3.
Court strategy: New York: B. Court personnel other than judges;
All/ almost all the cases: 7;
Most cases: 0;
About half the cases: 0;
Some cases: 0;
No cases: 2.
Court strategy: New York: C. Court examiner or other compensated person
appointed to review reports[A];
All/almost all the cases: 8;
Most cases: 0;
About half the cases: 0;
Some cases: 0;
No cases: 1.
Court strategy: New York: D. Volunteers;
All/almost all the cases: 0;
Most cases: 0;
About half the cases: 0;
Some cases: 0;
No cases: 7.
Court strategy: New York: E. Government agencies other than the court;
All/almost all the cases: 1;
Most cases: 0;
About half the cases: 0;
Some cases: 2;
No cases: 6.
Court strategy: New York: F. Other (please specify);
All/almost all the cases: 0;
Most cases: 0;
About half the cases: 0;
Some cases: 0;
No cases: 0.
[A] This item was included only in the surveys to New York judicial
districts.
[End of table]
What steps, if any, are taken to verify information in financial and
personal status reports? (Check one for each step.)
California: A. Information in personal status reports is verified;
All or almost all reports: 22;
Most reports: 1;
About half the reports: 0;
Some reports: 5;
No reports: 10.
California: B. Information in financial reports is verified;
All or almost all reports: 16;
Most reports: 3;
About half the reports: 0;
Some reports: 11;
No reports: 7.
California: C. Supporting documentation for financial information must
be submitted (e.g., bank/brokerage statements);
All or almost all reports: 24;
Most reports: 2;
About half the reports: 0;
Some reports: 8;
No reports: 5.
California: D. Other (please specify);
All or almost all reports: 3;
Most reports: 0;
About half the reports: 0;
Some reports: 1;
No reports: 7.
Florida: A. Information in personal status reports is verified;
All or almost all reports: 19;
Most reports: 2;
About half the reports: 1;
Some reports: 9;
No reports: 18.
Florida: B. Information in financial reports is verified;
All or almost all reports: 29;
Most reports: 1;
About half the reports: 0;
Some reports: 7;
No reports: 11.
Florida: C. Supporting documentation for financial information must be
submitted (e.g., bank/brokerage statements);
All or almost all reports: 48;
Most reports: 2;
About half the reports: 0;
Some reports: 4;
No reports: 1.
Florida: D. Other (please specify);
All or almost all reports: 5;
Most reports: 0;
About half the reports: 0;
Some reports: 0;
No reports: 5.
New York: A. Information in personal status reports is verified;
All or almost all reports: 5;
Most reports: 1;
About half the reports: 0;
Some reports: 1;
No reports: 2.
New York: B. Information in financial reports is verified;
All or almost all reports: 6;
Most reports: 1;
About half the reports: 0;
Some reports: 1;
No reports: 1.
New York: C. Supporting documentation for financial information must
be submitted (e.g., bank/brokerage statements);
All or almost all reports: 5;
Most reports: 2;
About half the reports: 0;
Some reports: 2;
No reports: 0.
New York: D. Other (please specify);
All or almost all reports: 0;
Most reports: 0;
About half the reports: 0;
Some reports: 0;
No reports: 0.
[End of table]
Is your court required to document approval of financial and personal
status reports? (Check one.)
A. Only required to document approval of financial reports;
California: 12;
Florida: 11;
New York: 0.
B. Only required to document approval of personal status reports;
California: 0;
Florida: 0;
New York: 0.
C. Required to document approval of both financial and personal status
reports;
California: 20;
Florida: 39;
New York: 6.
D. No requirement for court to document approval of reports;
California: 8;
Florida: 4;
New York: 3.
[End of table]
Does your court use a computer(s) to track when financial and/or
personal status reports are due and when they are filed? (Check one.)
A. Yes, for financial reports only;
California: 4;
Florida: 2;
New York: 0.
B. Yes, for personal status reports only;
California: 2;
Florida: 0;
New York: 0.
C. Yes, for both financial and personal status reports;
California: 22;
Florida: 37;
New York: 4.
D. No;
California: 13;
Florida: 15;
New York: 5.
[End of table]
About how many of the required guardianship reports for the elderly are
filed on time? (Check one.)
A. All or almost all;
California: 5;
Florida: 4;
New York: 0.
B. Most;
California: 18;
Florida: 16;
New York: 2.
C. About half;
California: 6;
Florida: 15;
New York: 2.
D. Less than half;
California: 6;
Florida: 14;
New York: 1.
E. Few, if any;
California: 3;
Florida: 1;
New York: 0.
F. Do not know;
California: 4;
Florida: 5;
New York: 4.
[End of table]
Guardian Compensation:
In the last 12 months, has your court approved any guardian
compensation that was based on a percentage of the value of an elderly
incapacitated person's estate? (Check one.)
Yes;
California: 11;
Florida: 3;
New York: 7.
No;
California: 30;
Florida: 48;
New York: 2.
[End of table]
If "Yes," what is the range of percentages typically approved?
California: Lowest.
California: 0.75%;
California: Highest: 5%;
Florida: Lowest: 0.5%;
Florida: Highest: 1.5%;
New York: Lowest: 0.03%;
New York: Highest: 5%.
[End of table]
In the last 12 months, has your court approved any guardian
compensation that was based on a percentage of an elderly
incapacitated person's income? (Check one.)
Yes;
California: 4;
Florida: 2;
New York: 6.
No;
California: 37;
Florida: 51;
New York: 3.
[End of table]
If "Yes," what is the range of percentages typically approved?
California: Lowest;
California: Highest;
Florida: Lowest;
Florida: Highest;
New York: Lowest;
New York: Highest.
California: 0.9%;
California: 10%;
Florida: 0%;
Florida: 5%;
New York: 1%;
New York: 5%.
[End of table]
In the last 12 months, has your court approved any guardian
compensation based on an hourly rate? (Check one.)
Yes;
California: 31;
Florida: 35;
New York: 6.
No;
California: 11;
Florida: 18;
New York: 3.
[End of table]
If "Yes," what is the range of hourly rates typically approved?
California: Lowest;
California: Highest;
Florida: Lowest;
Florida: Highest;
New York: Lowest;
New York: Highest.
California: $7;
California: $250;
Florida: $8;
Florida: $85;
New York: $25;
New York: $400.
[End of table]
How does your court handle petitions from guardians for compensation?
(Check one for each row.)
A. Court personnel review petitions;
California: All: 27;
California: Some: 5;
California: None: 8;
Florida: All: 26;
Florida: Some: 6;
Florida: None: 19;
New York: All: 6;
New York: Some: 1;
New York: None: 2.
B. Judges review petitions;
California: All: 34;
California: Some: 7;
California: None: 0;
Florida: All: 46;
Florida: Some: 1;
Florida: None: 2;
New York: All: 7;
New York: Some: 2;
New York: None: 0.
C. Guardians are required to submit time and expense records to support
their compensation petitions;
California: All: 24;
California: Some: 12;
California: None: 5;
Florida: All: 40;
Florida: Some: 6;
Florida: None: 4;
New York: All: 6;
New York: Some: 3;
New York: None: 0.
D. Petitions are approved by court personnel or judge unless a problem
surfaces;
California: All: 32;
California: Some: 4;
California: None: 6;
Florida: All: 34;
Florida: Some: 3;
Florida: None: 6;
New York: All: 7;
New York: Some: 1;
New York: None: 1.
E. Final approval is required by circuit or state office;
California: All: 0;
California: Some: 0;
California: None: 34;
Florida: All: 12;
Florida: Some: 2;
Florida: None: 25;
New York: All: 3;
New York: Some: 0;
New York: None: 6.
F. Other (please specify);
California: All: 0;
California: Some: 1;
California: None: 7;
Florida: All: 1;
Florida: Some: 0;
Florida: None: 5;
New York: All: 1;
New York: Some: 0;
New York: None: 0.
[End of table]
Statistical Information:
How many judges in your court hear guardianship petitions for the
elderly? (Enter number.)
Minimum;
California: 1;
Florida: 1;
New York: 3.
Maximum;
California: 11;
Florida: 8;
New York: 32.
Mean;
California: 1.60;
Florida: 1.62;
New York: 10.78.
Median;
California: 1;
Florida: 1;
New York: 8.
[End of table]
Of the judges in your court who hear guardianship petitions for the
elderly, how many work more than half the time on guardianship matters? (Enter number less than or equal to that given in Question 20.)
Minimum;
California: 0;
Florida: 0;
New York: 0.
Maximum;
California: 1;
Florida: 2;
New York: 5.
Mean;
California: 0.34;
Florida: 0.42;
New York: 1.44.
Median;
California: 0;
Florida: 0;
New York: 1.
[End of table]
How frequently is the elderly respondent (aged 65 and over) to a
guardianship petition present at the appointment hearing? (Check one.)
A. Always or almost always;
California: 3;
Florida: 4;
New York: 2.
B. In most cases;
California: 5;
Florida: 3;
New York: 3.
C. In about half the cases;
California: 8;
Florida: 6;
New York: 3.
D. In less than half the cases;
California: 16;
Florida: 12;
New York: 1.
E. In few, if any, cases;
California: 8;
Florida: 28;
New York: 0.
[End of table]
Does your court keep counts of the number of people, elderly and non-
elderly, who have guardians appointed by the court? (Check one.)
Yes;
California: 13;
Florida: 12;
New York: 3.
No;
California: 29;
Florida: 41;
New York: 6.
[End of table]
Currently, how many people, elderly and non-elderly, have active or
continuing guardians appointed by your court? (Please provide actual
numbers, if possible. If they are not available, check the box under
"Information is not available."):
Minimum;
California: 103;
Florida: 2;
New York: 1,131.
Maximum;
California: 2,034;
Florida: 7,412;
New York: 3,150.
Mean;
California: 853;
Florida: 1,225;
New York: 2,217.
Median;
California: 833;
Florida: 590;
New York: 2,370.
Number of responses;
California: 9;
Florida: 11;
New York: 3.
[End of table]
Does your court keep counts of the number of people with active or
continuing guardians appointed by your court who are elderly (aged 65
and over)? (Check one.)
Yes;
California: 4;
Florida: 4;
New York: 2.
No;
California: 37;
Florida: 50;
New York: 7.
[End of table]
If "Yes," currently, how many elderly have guardians?
Minimum;
California: 0;
Florida: 2;
New York: 1,165.
Maximum;
California: 103;
Florida: 1,073;
New York: 2,520.
Mean;
California: 52;
Florida: 538;
New York: 1,842.
Median;
California: 52;
Florida: 538;
New York: 1,842.
Number of responses;
California: 2;
Florida: 2;
New York: 2.
[End of table]
Currently, about what percentage of the people with guardians
appointed by your court are elderly (aged 65 and over)? (Check one.)
A. All or almost all;
California: 1;
Florida: 4;
New York: 2.
B. More than half;
California: 22;
Florida: 10;
New York: 2.
C. About half;
California: 0;
Florida: 6;
New York: 1.
D. Less than half;
California: 1;
Florida: 8;
New York: 0.
E. In few, if any, cases;
California: 1;
Florida: 2;
New York: 0.
F. Information is not available;
California: 17;
Florida: 20;
New York: 4.
[End of table]
In the last 12 months, about what percentage of petitions for
guardianship of elderly people resulted in the appointment of a
guardian? (Check one.)
A. All or almost all;
California: 28;
Florida: 43;
New York: 8.
B. More than half;
California: 8;
Florida: 3;
New York: 0.
C. About half;
California: 0;
Florida: 0;
New York: 0.
D. Less than half;
California: 0;
Florida: 0;
New York: 0.
E. Few, if any;
California: 0;
Florida: 0;
New York: 0.
F. Information is not available;
California: 6;
Florida: 9;
New York: 1.
[End of table]
Does your court keep counts of the types of guardians (e.g., family
members, attorneys, or other guardians who receive payment from either
public sources or the income and assets of the incapacitated person)
appointed for elderly persons?
Yes;
California: 3;
Florida: 4;
New York: 3.
No;
California: 39;
Florida: 50;
New York: 6.
[End of table]
How frequently does your court appoint each of the following types of
guardians for elderly persons? (Check one for each type.)
California: A. Guardians who are family members or friends;
Few, if any, cases: 2;
Less than half the cases: 8;
About half the cases: 14;
Most cases: 14;
All or almost all the cases: 1.
California: B. Guardians who are attorneys;
Few, if any, cases: 33;
Less than half the cases: 3;
About half the cases: 0;
Most cases: 1;
All or almost all the cases: 0.
California: C. Guardians, other than family members, friends, or
attorneys, who receive payment for services from public sources (e.g.,
social service agencies, etc.);
Few, if any, cases: 12;
Less than half the cases: 19;
About half the cases: 6;
Most cases: 1;
All or almost all the cases: 1.
California: D. Guardians, other than family members, friends, or
attorneys, who receive payment for services from the income or assets
of the incapacitated person;
Few, if any, cases: 14;
Less than half the cases: 21;
About half the cases: 3;
Most cases: 0;
All or almost all the cases: 0.
California: E. Other (please specify);
Few, if any, cases: 4;
Less than half the cases: 3;
About half the cases: 1;
Most cases: 1;
All or almost all the cases: 0.
Florida: A. Guardians who are family members or friends;
Few, if any, cases: 0;
Less than half the cases: 3;
About half the cases: 10;
Most cases: 20;
All or almost all the cases: 15.
Florida: B. Guardians who are attorneys;
Few, if any, cases: 44;
Less than half the cases: 2;
About half the cases: 0;
Most cases: 0;
All or almost all the cases: 0.
Florida: C. Guardians, other than family members, friends, or
attorneys, who receive payment for services from public sources (e.g.,
social service agencies, etc.);
Few, if any, cases: 35;
Less than half the cases: 7;
About half the cases: 2;
Most cases: 1;
All or almost all the cases: 0.
Florida: D. Guardians, other than family members, friends, or
attorneys, who receive payment for services from the income or assets
of the incapacitated person;
Few, if any, cases: 23;
Less than half the cases: 12;
About half the cases: 7;
Most cases: 4;
All or almost all the cases: 0.
Florida: E. Other (please specify);
Few, if any, cases: 1;
Less than half the cases: 0;
About half the cases: 0;
Most cases: 0;
All or almost all the cases: 1.
New York: A. Guardians who are family members or friends;
Few, if any, cases: 0;
Less than half the cases: 1;
About half the cases: 1;
Most cases: 5;
All or almost all the cases: 1.
New York: B. Guardians who are attorneys;
Few, if any, cases: 3;
Less than half the cases: 4;
About half the cases: 1;
Most cases: 0;
All or almost all the cases: 0.
New York: C. Guardians, other than family members, friends, or
attorneys, who receive payment for services from public sources (e.g.,
social service agencies, etc.);
Few, if any, cases: 3;
Less than half the cases: 4;
About half the cases: 0;
Most cases: 0;
All or almost all the cases: 0.
New York: D. Guardians, other than family members, friends, or
attorneys, who receive payment for services from the income or assets
of the incapacitated person;
Few, if any, cases: 6;
Less than half the cases: 1;
About half the cases: 0;
Most cases: 0;
All or almost all the cases: 0.
New York: E. Other (please specify);
Few, if any, cases: 0;
Less than half the cases: 0;
About half the cases: 0;
Most cases: 0;
All or almost all the cases: 0.
[End of table]
About what percentage of the guardians appointed by your court are on
the state registry? (Check one.)
A. All or almost all;
California: 0;
Florida: 2;
New York: 2.
B. More than half;
California: 0;
Florida: 2;
New York: 1.
C. About half;
California: 1;
Florida: 2;
New York: 0.
D. Less than half;
California: 13;
Florida: 6;
New York: 4.
E. Few, if any;
California: 17;
Florida: 12;
New York: 1.
F. Information is not available;
California: 10;
Florida: 30;
New York: 1.
[End of table]
Enforcement:
In the last 12 months, which actions has your court taken to enforce
requirements for guardians for the elderly? (Check one for each
action.)
A. Asked guardians questions raised by submitted reports;
California: Yes: 35;
California: No: 5;
Florida: Yes: 43;
Florida: No: 6;
New York: Yes: 8;
New York: No: 1.
B. Sent follow-up letters to guardians when reports are late,
incomplete, or inaccurate;
California: Yes: 25;
California: No: 14;
Florida: Yes: 44;
Florida: No: 6;
New York: Yes: 8;
New York: No: 1.
C. Sent show cause order, summons, or court notice for delinquent
reports;
California: Yes: 33;
California: No: 7;
Florida: Yes: 43;
Florida: No: 7;
New York: Yes: 7;
New York: No: 2.
D. Investigated complaints about guardians;
California: Yes: 30;
California: No: 9;
Florida: Yes: 27;
Florida: No: 21;
New York: Yes: 7;
New York: No: 2.
E. Held hearings on complaints from incapacitated persons, family
members, or other parties;
California: Yes: 32;
California: No: 8;
Florida: Yes: 35;
Florida: No: 15;
New York: Yes: 8;
New York: No: 1.
F. Other (please specify);
California: Yes: 3;
California: No: 2;
Florida: Yes: 3;
Florida: No: 4;
New York: Yes: 1;
New York: No: 0.
[End of table]
Over the last 3 years, about how often has your court imposed the
following penalties on guardians for the elderly for failure to fulfill
their responsibilities? (Check one estimate for each penalty.)
California: A. Terminated appointment;
Never: 6;
1-5 times: 20;
6-10 times: 3;
More than 10: 5;
Do not know: 5.
California: B. Reduced guardian's power over incapacitated person;
Never: 11;
1-5 times: 15;
6-10 times: 1;
More than 10: 3;
Do not know: 10.
California: C. Fined or surcharged guardian for filing required
reports late;
Never: 21;
1-5 times: 9;
6-10 times: 1;
More than 10: 2;
Do not know: 7.
California: D. Surcharged bond for property mismanagement;
Never: 16;
1-5 times: 11;
6-10 times: 3;
More than 10: 3;
Do not know: 7.
California: E. Denied guardian's petition for a new appointment;
Never: 14;
1-5 times: 15;
6-10 times: 1;
More than 10: 1;
Do not know: 7.
California: F. Notified state registry of guardian's resignation or
removal for cause;
Never: 29;
1-5 times: 1;
6-10 times: 0;
More than 10: 0;
Do not know: 8.
California: G. Letter of reprimand;
Never: 31;
1-5 times: 1;
6-10 times: 0;
More than 10: 0;
Do not know: 7.
California: H. Mandated additional training;
Never: 33;
1-5 times: 1;
6-10 times: 0;
More than 10: 0;
Do not know: 6.
California: I. Withheld or reduced compensation;
Never: 9;
1-5 times: 11;
6-10 times: 4;
More than 10: 9;
Do not know: 6.
California: J. Notified bar about attorneys who submit delinquent
reports;
Never: 32;
1-5 times: 0;
6-10 times: 0;
More than 10: 0;
Do not know: 7.
California: K. Awarded damages for civil actions against a guardian;
Never: 25;
1-5 times: 5;
6-10 times: 0;
More than 10: 0;
Do not know: 9.
California: L. Issued contempt of court citation;
Never: 15;
1-5 times: 7;
6-10 times: 4;
More than 10: 8;
Do not know: 6.
California: M. Convicted a guardian of a crime against the
incapacitated person;
Never: 17;
1-5 times: 11;
6-10 times: 0;
More than 10: 0;
Do not know: 12.
California: N. Other (please specify);
Never: 4;
1-5 times: 0;
6-10 times: 0;
More than 10: 1;
Do not know: 4.
Florida: A. Terminated appointment;
Never: 11;
1-5 times: 20;
6-10 times: 6;
More than 10: 6;
Do not know: 6.
Florida: B. Reduced guardian's power over incapacitated person;
Never: 20;
1-5 times: 13;
6-10 times: 3;
More than 10: 2;
Do not know: 10.
Florida: C. Fined or surcharged guardian for filing required reports
late;
Never: 38;
1-5 times: 3;
6-10 times: 0;
More than 10: 2;
Do not know: 5.
Florida: D. Surcharged bond for property mismanagement;
Never: 32;
1-5 times: 9;
6-10 times: 3;
More than 10: 0;
Do not know: 4.
Florida: E. Denied guardian's petition for a new appointment;
Never: 26;
1-5 times: 13;
6-10 times: 0;
More than 10: 2;
Do not know: 7.
Florida: F. Notified state registry of guardian's resignation or
removal for cause;
Never: 40;
1-5 times: 0;
6-10 times: 0;
More than 10: 0;
Do not know: 8.
Florida: G. Letter of reprimand;
Never: 29;
1-5 times: 5;
6-10 times: 0;
More than 10: 4;
Do not know: 9.
Florida: H. Mandated additional training;
Never: 26;
1-5 times: 8;
6-10 times: 2;
More than 10: 3;
Do not know: 8.
Florida: I. Withheld or reduced compensation;
Never: 17;
1-5 times: 12;
6-10 times: 2;
More than 10: 10;
Do not know: 7.
Florida: J. Notified bar about attorneys who submit delinquent reports;
Never: 33;
1-5 times: 6;
6-10 times: 0;
More than 10: 1;
Do not know: 8.
Florida: K. Awarded damages for civil actions against a guardian;
Never: 29;
1-5 times: 7;
6-10 times: 0;
More than 10: 1;
Do not know: 10.
Florida: L. Issued contempt of court citation;
Never: 18;
1-5 times: 11;
6-10 times: 1;
More than 10: 11;
Do not know: 8.
Florida: M. Convicted a guardian of a crime against the incapacitated
person;
Never: 31;
1-5 times: 8;
6-10 times: 0;
More than 10: 1;
Do not know: 8.
Florida: N. Other (please specify);
Never: 4;
1-5 times: 1;
6-10 times: 0;
More than 10: 2;
Do not know: 4.
New York: A. Terminated appointment;
Never: 0;
1-5 times: 4;
6-10 times: 0;
More than 10: 2;
Do not know: 3.
New York: B. Reduced guardian's power over incapacitated person;
Never: 2;
1-5 times: 3;
6-10 times: 0;
More than 10: 1;
Do not know: 3.
New York: C. Fined or surcharged guardian for filing required reports
late;
Never: 2;
1-5 times: 3;
6-10 times: 1;
More than 10: 0;
Do not know: 3.
New York: D. Surcharged bond for property mismanagement;
Never: 3;
1- 5 times: 2;
6-10 times: 1;
More than 10: 0;
Do not know: 3.
New York: E. Denied guardian's petition for a new appointment;
Never: 5;
1-5 times: 0;
6-10 times: 0;
More than 10: 0;
Do not know: 4.
New York: F. Notified state registry of guardian's resignation or
removal for cause;
Never: 6;
1-5 times: 1;
6-10 times: 0;
More than 10: 0;
Do not know: 2.
New York: G. Letter of reprimand;
Never: 7;
1-5 times: 0;
6-10 times: 0;
More than 10: 0;
Do not know: 1.
New York: H. Mandated additional training;
Never: 8;
1-5 times: 0;
6- 10 times: 0;
More than 10: 0;
Do not know: 1.
New York: I. Withheld or reduced compensation;
Never: 1;
1-5 times: 2;
6-10 times: 0;
More than 10: 3;
Do not know: 2.
New York: J. Notified bar about attorneys who submit delinquent
reports;
Never: 7;
1-5 times: 0;
6-10 times: 0;
More than 10: 0;
Do not know: 2.
New York: K. Awarded damages for civil actions against a guardian;
Never: 7;
1-5 times: 0;
6-10 times: 0;
More than 10: 0;
Do not know: 2.
New York: L. Issued contempt of court citation;
Never: 4;
1-5 times: 2;
6-10 times: 0;
More than 10: 1;
Do not know: 2.
New York: M. Convicted a guardian of a crime against the incapacitated
person;
Never: 6;
1-5 times: 1;
6-10 times: 0;
More than 10: 0;
Do not know: 2.
New York: N. Other (please specify);
Never: 1;
1-5 times: 0;
6-10 times: 0;
More than 10: 0;
Do not know: 1.
[End of table]
[End of section]
Appendix IV: Comments from the Office of Personnel Management:
[See PDF for image]
[End of figure]
[End of section]
Appendix V: Comments from the Department of Veterans Affairs:
THE SECRETARY OF VETERANS AFFAIRS:
WASHINGTON:
June 18, 2004:
Ms. Barbara Bovbjerg:
Director, Education, Workforce and Income Security Issues:
U. S. General Accounting Office:
441 G Street, NW:
Washington, DC 20548:
Dear Ms. Bovbjerg:
The Department of Veterans Affairs (VA) has reviewed your draft report,
GUARDIANSHIP: Collaboration Needed to Protect Incapacitated Elderly
People (GAO-04-655) and agrees with your conclusions as they pertain to
VA. The General Accounting Office (GAO) has illuminated concerns that
have long been apparent to the Veterans Benefits Administration's (VBA)
Fiduciary Program
* There are wide variances in State guardianship laws
and procedures.
* There is a need for Federal agencies and State courts to share
information on cases of common interest.
* There is a lack of any systematic information sharing arrangement
among Federal agencies, State agencies, and State courts relating to
the protection of elderly beneficiaries.
VA looks forward to being an active participant in any study groups
formed as GAO recommends. These groups would study the costs and
benefits of systematically sharing information about incapacitated
(incompetent) individuals, existing and successor fiduciary
arrangements, fiduciaries removed for cause, and other information that
could be mutually beneficial. One or more VBA participants with
knowledge of the Fiduciary Program, the Fiduciary-Benefits System, the
Benefits Delivery Network, Privacy Act/Freedom of Information Act, and
interagency data sharing procedures should be part of any group formed.
A VBA representative from the Fiduciary Program staff would also be a
valuable participant in any discussions concerning sharing and
compiling data from Federal and State agencies, as well as reviewing
individual State policies on guardianships to develop more consistent
management of programs, data collection, and cooperation among states.
Thank you for the opportunity to comment on your draft report.
Sincerely yours,
Signed by:
Anthony J. Principi:
[End of section]
Appendix VI: Comments from the Department of Health and Human Services:
DEPARTMENT OF HEALTH & HUMAN SERVICES:
Office of Inspector General:
Washington, D.C. 20201:
JUN 21 2004:
Ms. Barbara D. Bovbjerg:
Director, Education, Workforce and Income Security Issues:
United States General Accounting Office:
Washington, D.C. 20548:
Dear Ms. Bovbjerg:
Enclosed are the Department's comments on your draft report entitled,
"Guardianships: Collaboration Needed to Protect Incapacitated Elderly
People" (GAO-04-655). The comments represent the tentative position of
the Department and are subject to reevaluation when the final version
of this report is received.
The Department appreciates the opportunity to comment on this draft
report before its publication.
Sincerely,
Signed by:
Dara Corrigan:
Acting Principal Deputy Inspector General:
Enclosure:
The Office of Inspector General (OIG) is transmitting the Department's
response to this draft report in our capacity as the Department's
designated focal point and coordinator for General Accounting Office
reports. OIG has not conducted an independent assessment of these
comments and therefore expresses no opinion on them.
Comments of the Department of Health and Human Services on the General
Accounting Office's Draft Report "Guardianships: Collaboration Needed
to Protect Incapacitated Elderly People" (GAO-04-655):
The Department of Health and Human Services (HHS) appreciates the
opportunity to comment on the GAO's draft report. Guardians play a
critical role in protecting vulnerable individuals and in helping them
to obtain the care and services they require. Most guardians are
conscientious, but some mistreat, neglect, or exploit their wards.
Guardianship must be approached with protection in mind because it can
remove our most basic rights. It should be imposed only as a last
resort. Nevertheless, today more Americans are in need of guardianship
because more are living to old age and suffering from Alzheimer's
disease or related dementias. We can expect the number of those in need
of guardianship to continue to grow: the number of seniors 85 years of
age and over will grow from 4.6 million today to 20.9 million in 2050,
and those with Alzheimer's disease will grow from 4.5 to 11.4 million
or more. Your draft report clearly outlines the challenge we face in
coordinating processes to provide consistent information across the
nation on the number and conditions of individuals receiving
guardianship services.
The Older Americans Act (OAA) mandates that the Administration on Aging
(AoA) serve as the effective and visible advocate for older Americans
and their concerns. As such, AoA is committed to protecting vulnerable
seniors under or in need of guardianship. We work first to provide
alternatives to guardianship to enhance the continued freedom and
independence of elder individuals to the extent feasible. Legal
services programs funded under the OAA promote alternatives to
guardianship, such as financial powers of attorney and health care
advance directives. These instruments empower seniors to decide who
will make their decisions when they become incapacitated, reducing
their risk for victimization and limiting the number of unnecessary
guardianships. Senior legal providers also advocate for alternatives to
guardianship or limited guardianships when representing prospective
wards before the court, and they petition the court to appoint an
emergency guardian when an incapacitated senior is being abused,
neglected or exploited.
AoA and the State and area agencies that administer OAA programs are
also committed to program coordination as a top priority for all
service domains, and this is reflected in key initiatives and efforts
conducted throughout the aging network. AoA and the Center for Medicare
and Medicaid Services have instituted "Aging and Disability Resource
Centers" in States across the nation to better coordinate and integrate
service provision and funding for long-term care services across the
country. This initiative pursues the establishment of "one-stop shops"
for elders and disabled individuals of other ages, specifically and
especially for community-based long-term care services, such as those
provided under the OAA and Medicaid.
Under AoA guidance, State and local programs that serve older Americans
seek to protect the individual rights, preferences, and safety of older
Americans and to enhance the quality of their lives, whether they are
at home or in long-term care facilities. Long-:
term care ombudsmen are working with the Quality Improvement
Organizations and adult protective services agencies in their States on
strategies to improve the quality of care and life of older people
living in long-term care facilities and to protect these vulnerable
consumers. To improve the consistency of "abuse" and other complaint
data collected across the nation under the Long-Term Care Ombudsman
Program, AoA has developed an action plan that includes consistent
training in classifying cases and promotes consistency between the
ombudsman and adult protective services networks in the investigation
and reporting of institutional abuse.
Other programs funded under the OAA are partnering with courts to help
train and monitor guardians. For example, the Indiana Long-Term Care
Ombudsman provides probate judges with brochures on long-term care for
distribution to newly appointed guardians, and the area agency on aging
in West Palm Beach, Florida is working with the local court to recruit
volunteers for a guardianship monitoring program. AoA recently
disseminated information about these and other model guardianship
practices to all State and area agencies on aging.
HHS supports the manner in which you have addressed this important
issue. Your fmdings reinforce our approach to protecting those under or
in need of guardianship. We agree that guardians should be adequately
trained and monitored, and that governmental agencies and courts should
coordinate their efforts and share information concerning guardians and
representative payees.
AoA is carrying out the GAO recommendation for HHS to "study options
for compiling data from Federal agencies and State agencies, such as
adult protective services 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..." This year AoA's National Center on Elder
Abuse will survey all State adult protective services agencies to
determine the incidence of elder abuse reports and the characteristics
of victims and perpetrators. This study will ask States to cite the
number or percentage of perpetrators of elder abuse who served as the
victims' powers of attorney, guardians, or representative payees.
AoA will explore "cost-effective pilot and demonstration projects" to
develop approaches for compiling guardianship data and to facilitate
solutions for interstate jurisdictional issues. We also agree that HHS
should serve on the interagency study group charged with developing
"options for improving interagency cooperation and Federal-State
cooperation in the protection of incapacitated elderly and non-elderly
people." AoA co-chairs the Federal Elder Justice Interagency Working
Group. This group brings together Federal officials responsible for
carrying out elder justice activities, including elder abuse
prevention, research, grant and program-funding, and prosecution. Since
2001, members have met regularly to discuss emerging issues, promising
practices, and ways to coordinate their efforts. National experts have
addressed the group on a range of topics, including guardianship, adult
protective services, and predatory lending, enabling increased
awareness and opportunities for collaboration in these areas.
Thank you again for calling attention to this important issue. Programs
funded under the OAA provide legal representation to seniors under or
in need of guardianship and help courts to train and monitor guardians.
Your findings highlight the need for better coordination and
information sharing between governmental agencies and courts, and for
more data collection. HHS looks forward to working with Congress to
address these and other issues that impact on the lives of vulnerable
older Americans.
[End of section]
Appendix VII: Comments from the Social Security Administration:
SOCIAL SECURITY:
The Commissioner:
June 10, 2004:
Ms. Barbara D. Bovbjerg:
Director, Education, Workforce, and Income Security Issues:
U.S. General Accounting Office Room 5968:
441 G Street, NW
Washington, D.C. 20548:
Dear Ms. Bovbjerg:
Thank you for the opportunity to review and comment on the draft
report, "GUARDIANSHIPS: Collaboration Needed to Protect Incapacitated
Elderly People" (GAO-04-655). Our comments on the report are enclosed.
If you have any questions, please contact Candace Skurnik, Director,
Audit Management and Liaison Staff, at (410) 965-4636. Staff questions
should be directed to Trudy Williams at (410) 965-0380.
Sincerely,
Signed by:
Jo Anne B. Barnhart:
Enclosure:
SOCIAL SECURITY ADMINISTRATION BALTIMORE MD 21235-0001:
COMMENTS ON THE GENERAL ACCOUNTING OFFICE (GAO) DRAFT REPORT,
"GUARDIANSHIPS: COLLABORATION NEEDED TO PROTECT INCAPACITATED ELDERLY
PEOPLE" (GAO-04-655):
Thank you for the opportunity to comment on the subject draft report.
Our response to the report and to the specific recommendations is
provided below.
The protection of the elderly, or others who may become incapacitated,
is of significant importance, not only to our Agency, but to society in
general. We support the need for vigilance in ensuring our
representative payees (Rep Payees) are accountable for using Social
Security benefits appropriately and that funds are not misused.
In 1998, the Social Security Administration (SSA) funded a grant for
the American Bar Association (ABA) to look into a nearly identical
issue; i.e., can there be better coordination between State court
guardianship actions and the SSA Rep Payee program? The results of the
ABA project were very similar to GAO's conclusions and recommendations
with respect to SSA. The two biggest hurdles facing SSA in adopting the
ABA recommendations were the Privacy Act and the fact that a statement
of routine use, allowing SSA to share Rep Payee information with State
courts, does not exist. A Rep payeeship is the most limited type of
guardianship (restricted only to management of benefits), whereas State
court guardianships are almost invariably more complicated. To the
extent that SSA's policies differ from State court and other agencies'
policies, SSA is bound by the Social Security Act and the Privacy Act.
SSA may only disclose information to State courts or other Federal
agencies in accordance with the Privacy Act and section 1106 of the
Social Security Act, including SSA's regulation at 20 C.F.R. Part 401:
Recommendation 1:
To increase the ability of Rep Payee programs to protect Federal
benefit payments from misuse, SSA should convene an interagency study
group that includes representatives from the Department of Health and
Human Services (DHHS), Federal agencies with Rep Payee programs,
including the Veterans' Administration (VA) and the Office of Personnel
Management, and State courts that wish to participate in order to:
study the costs and benefits of options for improving interagency
cooperation and Federal-State cooperation in the protection of
incapacitated elderly and non-elderly people.
Comment:
We disagree. Although we share your concern about this very vulnerable
segment of our beneficiary population, we do not believe the proposed
effort is within the purview of SSA. SSA receives appropriations from
Congress to ensure that the benefits paid to payees are used for the
maintenance and welfare of incapacitated individuals. The effort GAO
has proposed goes far beyond the statutory responsibilities of SSA.
Moreover, we believe that it would be extremely difficult for agencies
to develop a systematic way to share information when we consider the
number of State and local courts that exist and the differing laws of
the State and Federal agencies regarding capability. In addition, there
are privacy implications that could preclude information sharing among
the many different jurisdictions.
Recommendation 2:
To facilitate State efforts to improve oversight of guardianships and
to aid guardians in the fulfillment of their responsibilities, the DHHS
should work with national organizations involved in guardianship
programs, such as those represented on the National Guardianship
Network, to provide support and leadership to the States for cost-
effective pilot and demonstration projects.
Comment:
We defer our response to DHHS.
Technical Comment:
Page 5, the first full paragraph, sentence 5 reads, "SSA, for example,
will assign a representative payee for an incapacitated person if it
concludes that the best interest of the incapacitated beneficiary would
be served, whether or not the person has granted someone else power of
attorney." We recommend removing the word "best" from the sentence.
Page 8, the first paragraph, last sentence reads, "Sometimes the
guardian or representative payee is paid from the assets or income of
the incapacitated person, or from the public sources if the
incapacitated person is unable to pay." This sentence is misleading. If
an SSA Rep Payee is authorized to take a fee, the fee comes from the
monthly benefit payment. SSA's Rep Payees are not paid from public
sources.
Page 29, the first full paragraph, sentence 3 reads, "For example, if a
representative payee for 15 or more beneficiaries misuses the benefit
payments, SSA will have to reissue the misused benefits to the
beneficiaries or to an alternate representative payee, resulting in
increased federal expenditures." The sentence should be revised to
read, "For example, if a representative payee that is an organization,
or an individual servicing 15 or more beneficiaries, misuses the
benefit payments..."
Page 30, the second full paragraph, the penultimate sentence reads,
"The agencies also do not compile information on the reasons a
representative payee is replaced-due to death, relocation, voluntary
resignation, or for failure to fulfill representative payee
responsibilities." This statement is not entirely true. SSA keeps
information on Rep Payees who are removed for misuse or Social Security
fraud.
[End of section]
Appendix VIII: GAO Contacts and Staff Acknowledgments:
GAO Contacts:
Alicia Puente Cackley (202) 512-7022 Benjamin P. Pfeiffer (206) 287-
4832:
Staff Acknowledgments:
Carolyn M. Boyce, Nicole E. Gore, Jill M. Johnson, Corinna A. Nicolaou,
Daniel A. Schwimer, Derald Seid, and John E. Trubey also contributed to
this report.
FOOTNOTES
[1] Alzheimer's disease is only one of the health conditions leading to
dementia or other incapacity.
[2] 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.
[3] Other causes of dementia include strokes, brain tumors, and a
variety of endocrine, metabolic, and nutritional disorders.
[4] For convenience, we use the term "incapacitated," recognizing that
federal agencies and states use a variety of terms and somewhat
different definitions to assess whether someone is in need of a
guardian or representative payee. SSA, for example, assigns
representative payees to people it has determined are incapable of
managing or directing the management of benefit payments. OPM and VA
use the term "incompetent" but have somewhat different definitions.
Most states use the term "incapacitated," but others use "incompetent,"
"mental incompetent," "disabled," or "mentally disabled."
[5] Generally states also have separate provisions for guardianship of
minor children, including those who are incapacitated and those who are
not.
[6] In cases where a Medicaid-eligible nursing home resident has
insufficient SSA benefits to cover the entire cost of the nursing care;
however, the law provides that the resident shall nonetheless be
provided a personal needs allowance of at least $30 each month.
[7] Typically, probate courts are those that handle cases involving
trusts, wills, estates, and guardianships.
[8] The New York State Unified Court System's Commission on Fiduciary
Appointments and a Special Inspector General have raised concerns about
the selection and compensation of guardians and other fiduciaries in
New York, and the court has established the Office of Guardian and
Fiduciary Services to help administer a new appointment system.
[9] Staff in the California Attorney General's office responsible for
the registry indicated that as of April 2003 the registry consisted of
463 guardians, and in only one instance since the registry's
establishment has a court-submitted notice of a complaint.
[10] Professional guardians in Florida are those who receive
compensation for serving more than two incapacitated people who are not
family members. Nonprofessional guardians and guardians who are trust
companies, state or national banks, federal savings and loans
associations, neither state, nor independent colleges or universities
are required to register.
[11] In a December 2003 opinion, the Florida Supreme Court called for
additional state judges, including 6 in Broward County, citing in part
the growing number of guardianship and probate cases due to Florida's
growing elderly population.
[12] Parents who are appointed guardians of the property of their minor
children are subject to different requirements. Each person appointed
by the court to be the guardian of the property of his or her minor
child must receive a minimum of 4 hours of instruction and training
that covers the guardian's duties, preparation of reports, and use of
guardianship assets
[13] In California a private professional guardian (conservator) is
generally "a person or entity appointed as conservator of the person or
estate, or both, of two or more conservatees at the same time who are
not related to the conservator by blood or marriage, except a bank or
other entity authorized to conduct the business of a trust company, or
any public officer or public agency including the public guardian,
public conservator, or other agency of the State of California."
[14] Volunteers also conduct some court visits. The county has a
volunteer coordinator who assists in finding volunteers who are
interested in doing court visits. The court asks volunteers to make a
1-year commitment. Volunteers attend the 4-hour orientation and
training.
[15] Each of the three agencies has its own criteria and process for
identifying beneficiaries in need of a representative payee and though
the three agencies use terms such as "incompetence," we use the term
"incapacitated."
[16] State mental hospitals that are representative payees are subject
to different accounting requirements and are subject to on-site reviews
by SSA staff.
[17] Without the information on SSA benefits being provided to
veterans, VA staff would have to find benefit and income information
through other means, and they would have no way to verify the
information. There is a potential for fraud, since a beneficiary could
claim to not receive Social Security benefits, when in fact the person
does receive a benefit and this may affect their eligibility for VA
benefits. In addition, without information from SSA that may help
indicate a veteran's total income, VA may recommend an inappropriately
low spending allowance for the incapacitated person.
[18] SSA estimated that as of December 2002, 250,000 Old Age, Survivor,
and Disability Insurance beneficiaries had both an SSA-designated
representative payee and a court-appointed guardian. For about 48,000
of these beneficiaries the guardian was not the designated
representative payee.
[19] These and other federal agencies currently collaborate in the
exchange of data on beneficiaries for other purposes. For example,
through SSA's Death Master File federal and state agencies, including
SSA, OPM, and VA, periodically match their beneficiary lists with lists
of people who have died. This cooperative effort helps agencies ensure
that they do not continue to send payments to people who are no longer
eligible.
[20] Memorandum of Understanding between the Social Security
Administration and the Department of Veterans Affairs, signed by Acting
Commissioner, SSA, and Undersecretary for Benefits, October 13, 1993.
[21] Pub. L. No. 108-203 §101, March 2, 2004.
[22] OPM's policy is to designate the guardian as the representative
payee.
[23] 42 U.S.C. §3058i.
[24] The National Guardianship Network is a joint council representing
the National College of Probate Judges, National guardianship
Association, American Bar Association--Commission on Law and Aging,
National Center for State Courts, National Academy of Elder Law
Attorneys, National Guardianship Foundation, American Bar Association-
-Real Property Probate and Trust Section, and American College of Trust
and Estate Counsel.
[25] Pub. L. 104-191, August 21, 1996.
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