Guardianships
Little Progress in Ensuring Protection for Incapacitated Elderly People Gao ID: GAO-06-1086T September 7, 2006The Senate Special Committee on Aging asked GAO to follow up on its 2004 report, Guardianships: Collaboration Needed to Protect Incapacitated Elderly People, GAO-04-655. This report covered what state courts do to ensure that guardians fulfill their responsibilities, what exemplary guardianship programs look like, and how state courts and federal agencies work together to protect incapacitated elderly people. For this testimony, GAO agreed to (1) provide an overview and update of the findings of this prior work; (2) discuss the status of a series of recommendations GAO made in that report; and (3) discuss the prospects for progress in efforts to strengthen protections for incapacitated elderly people through guardianships. To complete this work, GAO interviewed lawyers and agency officials who have been actively involved in guardianship and representative payee programs, and spoke with officials at some of the courts identified as exemplary in the report.
GAO's 2004 report had three principal findings. First, all states have laws requiring courts to oversee guardianships, but court implementation of these laws varies. Second, those courts recognized as exemplary in the area of guardianships focused on training and monitoring. Third, there is little coordination between state courts and federal agencies or among federal agencies regarding guardianships. At present, these findings remain largely the same, but there are some new developments to report. Since GAO's report was issued, some states have strengthened their guardianship programs. For example, Alaska established requirements for licensing of private guardianships and New Jersey and Texas established requirements for the registration of professional guardians. However, there continues to be little coordination between state courts and federal agencies or among federal agencies in the protection of incapacitated people. GAO's report made recommendations to federal agencies, but to date little progress has been made. GAO recommended that SSA convene an interagency study group to increase the ability of representative payee programs to protect federal benefit payments from misuse. Although VA, HHS, and OPM indicated their willingness to participate in such a study group, SSA disagreed with this recommendation, and its position has not changed. Second, GAO recommended that HHS work with national organizations involved in guardianship programs to provide support and leadership to the states for cost-effective pilot and demonstration projects to facilitate state efforts to improve oversight of guardianships and to aid guardians in the fulfillment of their responsibilities. HHS did support a study that surveyed the status of states' guardianship data collection practices. HHS also supported a National Center on Elder Abuse survey of adult protective services agencies to collect information including the extent to which guardians are the alleged perpetrators or the sources of reports about elder abuse. Third, GAO recommended a review of state policies and procedures concerning interstate transfer and recognition of guardianship appointments. A National Conference of Commissioners on Uniform State Laws, held in July of this year, issued a discussion draft for a uniform state law addressing these issues. Following issuance of GAO's 2004 report, a joint conference of professional guardianship organizations agreed on a set of action steps to implement previously-released recommendations from a group of experts on adult guardianship, known as the Wingspan recommendations. Among other things, these action steps call for licensing, certifying, or registering professional guardians.
GAO-06-1086T, Guardianships: Little Progress in Ensuring Protection for Incapacitated Elderly People
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Testimony:
Before the Special Committee on Aging, U.S. Senate:
United States Government Accountability Office:
GAO:
For Release on Delivery Expected at 10:00 a.m. EDT:
Thursday, September 7, 2006:
Guardianships:
Little Progress in Ensuring Protection for Incapacitated Elderly
People:
Statement of Barbara D. Bovbjerg, Director Education, Workforce, and
Income Security:
GAO-06-1086T:
GAO Highlights:
Highlights of GAO-06-1086T, a testimony before the Special Committee on
Aging, U.S. Senate
Why GAO Did This Study:
The Senate Special Committee on Aging asked GAO to follow up on its
2004 report, Guardianships: Collaboration Needed to Protect
Incapacitated Elderly People, GAO-04-655. This report covered what
state courts do to ensure that guardians fulfill their
responsibilities, what exemplary guardianship programs look like, and
how state courts and federal agencies work together to protect
incapacitated elderly people. For this testimony, GAO agreed to (1)
provide an overview and update of the findings of this prior work; (2)
discuss the status of a series of recommendations GAO made in that
report; and (3) discuss the prospects for progress in efforts to
strengthen protections for incapacitated elderly people through
guardianships.
To complete this work, GAO interviewed lawyers and agency officials who
have been actively involved in guardianship and representative payee
programs, and spoke with officials at some of the courts identified as
exemplary in the report.
What GAO Found:
GAO‘s 2004 report had three principal findings. First, all states have
laws requiring courts to oversee guardianships, but court
implementation of these laws varies. Second, those courts recognized as
exemplary in the area of guardianships focused on training and
monitoring. Third, there is little coordination between state courts
and federal agencies or among federal agencies regarding guardianships.
At present, these findings remain largely the same, but there are some
new developments to report. Since GAO‘s report was issued, some states
have strengthened their guardianship programs. For example, Alaska
established requirements for licensing of private guardianships and New
Jersey and Texas established requirements for the registration of
professional guardians. However, there continues to be little
coordination between state courts and federal agencies or among federal
agencies in the protection of incapacitated people.
GAO‘s report made recommendations to federal agencies, but to date
little progress has been made. GAO recommended that SSA convene an
interagency study group to increase the ability of representative payee
programs to protect federal benefit payments from misuse. Although VA,
HHS, and OPM indicated their willingness to participate in such a study
group, SSA disagreed with this recommendation, and its position has not
changed. Second, GAO recommended that HHS work with national
organizations involved in guardianship programs to provide support and
leadership to the states for cost-effective pilot and demonstration
projects to facilitate state efforts to improve oversight of
guardianships and to aid guardians in the fulfillment of their
responsibilities. HHS did support a study that surveyed the status of
states‘ guardianship data collection practices. HHS also supported a
National Center on Elder Abuse survey of adult protective services
agencies to collect information including the extent to which guardians
are the alleged perpetrators or the sources of reports about elder
abuse. Third, GAO recommended a review of state policies and procedures
concerning interstate transfer and recognition of guardianship
appointments. A National Conference of Commissioners on Uniform State
Laws, held in July of this year, issued a discussion draft for a
uniform state law addressing these issues.
Following issuance of GAO‘s 2004 report, a joint conference of
professional guardianship organizations agreed on a set of action steps
to implement previously-released recommendations from a group of
experts on adult guardianship, known as the Wingspan recommendations.
Among other things, these action steps call for licensing, certifying,
or registering professional guardians.
What GAO Recommends:
GAO is making no new recommendations in this testimony.
[Hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-06-1086T].
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]
Mr. Chairman and Members of the Committee:
I'm pleased to be here today to discuss guardianships for the elderly.
As people age, some become incapable of caring for themselves and must
rely on a guardian--a person or entity appointed by the court to make
decisions for them.[Footnote 1] Despite existing safeguards, there
continue to be instances where some guardians have taken advantage of
the elderly people they were supposed to protect. Such cases of abuse
and neglect have prompted questions about the oversight of guardianship
programs.
In 2003, the Senate Special Committee on Aging asked GAO to study
guardianships for the elderly, and the results of our work appeared in
a 2004 report.[Footnote 2] This work covered what state courts do to
ensure that guardians fulfill their responsibilities, what exemplary
guardianship programs look like, and how state courts and federal
agencies work together to protect incapacitated elderly people. I am
here today to (1) provide an overview and update of the findings of
this work; (2) discuss the status of a series of recommendations GAO
made in that report; and (3) discuss the prospects for progress in
efforts to strengthen protections for incapacitated elderly people
through guardianships.
To do this work, we reviewed changes in guardianship statutes
nationwide since our 2004 report, interviewed lawyers and agency
officials who have been actively involved in guardianship and
representative payee programs, and spoke with officials at some of the
courts identified as exemplary in our previous report. Our work for the
2004 report involved similar interviews, as well as surveys of courts
in the three states with the largest elderly populations: California,
New York and Florida. For the report we visited courts in eight states
and we interviewed federal officials responsible for representative
payee programs. We conducted our review in accordance with generally
accepted government auditing standards.
In summary, our 2004 report noted that some state laws and some courts
provide more protection for incapacitated elderly people than others.
State laws have varied requirements for monitoring guardianships and
court practices in the states we visited also varied widely.
Coordination among federal agencies and courts was quite limited and on
a case-by-case basis. Since our report was issued, some states have
strengthened their guardianship programs and some efforts have been
made to lay the groundwork for better collaboration. However, according
to guardianship professionals, states and federal agencies have made
only limited progress in improving guardianships. Some states,
including Texas, New Jersey, and Wisconsin, adopted guardianship reform
legislation that should help strengthen protections for people under
guardianships in those states. Federal agencies administering benefit
programs appoint representative payees to manage the benefits of
incapacitated individuals. Our study found there is a lack of
systematic coordination among the federal agencies and between federal
agencies and the courts. In some cases, this may weaken protections for
vulnerable incapacitated people.
Our report made recommendations to federal agencies, but to date little
progress has been made. We recommended that the Social Security
Administration (SSA) convene an interagency study group to increase the
ability of representative payee programs to protect federal benefit
payments from misuse. Although the Department of Veterans Affairs (VA),
Department of Health and Human Services (HHS), and the Office of
Personnel Management (OPM) indicated their willingness to participate
in such a study group, SSA disagreed with this recommendation. We
checked with SSA recently, and its position has not changed. Second, we
recommended that HHS work with national organizations involved in
guardianship programs to provide support and leadership to the states
for cost-effective pilot and demonstration projects to facilitate state
efforts to improve oversight of guardianships and to aid guardians in
the fulfillment of their responsibilities. HHS did support a study that
surveyed the status of states' guardianship data collection practices.
HHS also supported an effort to include in a survey of adult protective
service agencies information about the extent to which guardians are
the sources of reports about elder abuse or the alleged perpetrator. We
also recommended a review of state policies and procedures concerning
interstate transfer and recognition of guardianship appointments. A
National Conference of Commissioners on Uniform State Laws, held in
July of this year, issued a discussion draft for a uniform state law
addressing these issues.
Following issuance of our report, a joint conference of professional
guardianship organizations agreed on a set of action steps to implement
previous recommendations made at the Second National Guardianship
conference, known as the Wingspan recommendations.[Footnote 3] Although
only modest progress has been made overall, there are a few bright
spots. For example, the Wingspan recommendations call for the
licensure, certification, or registration of professional guardians.
Several states now have such programs and in the last couple of years
Texas and New Jersey have been added to the list of states that have
such requirements for some guardians.
Background:
The number of people age 65 and older will nearly double in the U.S. by
the year 2030 to 71 million. Over time, some elderly adults become
physically or mentally incapable of making or communicating important
decisions, such as those required to handle finances or secure their
possessions. While some incapacitated adults may have family members
who can informally assume responsibility for their decision-making,
many elderly incapacitated people do not. In situations such as these,
additional measures may be necessary to ensure that incapacitated
people are protected from abuse and neglect.
Several arrangements can be made to protect the elderly or others who
may become incapacitated. A person may prepare a living will, write
advance health care directives, appoint someone to assume durable power
of attorney, or establish a trust. However, such arrangements may not
provide sufficient protection. For example, some federal agencies do
not recognize durable powers of attorney for managing federal benefits.
SSA will assign a representative payee for an incapacitated person if
it concludes that the interest of the incapacitated beneficiary would
be served, whether or not the person has granted someone else power of
attorney. In addition, many states have surrogacy healthcare decision-
making laws, but these alternatives do not cover all cases. Additional
measures may be needed to designate legal authority for someone to make
decisions on the incapacitated person's behalf. To provide further
protection for both elderly and non-elderly incapacitated adults, state
and local courts appoint guardians to oversee their personal welfare,
their financial well-being, or both. The appointment of a guardian
typically means that the person loses basic rights, such as the right
to vote, sign contracts, buy or sell real estate, marry or divorce, or
make decisions about medical procedures. If an incapacitated person
becomes capable again, by recovering from a stroke, for example, he or
she cannot dismiss the guardian but, rather, must go back to court and
petition to have the guardianship terminated.
The federal government does not regulate or provide any direct support
for guardianships, but courts may decide that the appointment of a
guardian is not necessary if a federal agency has already assigned a
representative payee--a person or organization designated to handle
federal benefits payments on behalf of an incapacitated person.
Representative payees are entirely independent of court supervision
unless they also serve their beneficiary as a court-appointed guardian.
Guardians are supervised by state and local courts and may be removed
for failing to fulfill their responsibilities. Representative payees
are supervised by federal agencies, although each federal agency with
representative payees has different forms and procedures for monitoring
them. Each state provides its own process for initiating and evaluating
petitions for guardianship appointment. Generally, state laws require
filing a petition with the court and providing notice to the alleged
incapacitated person and other people with a connection to that person.
In many cases, both courts and federal agencies have responsibilities
for protecting incapacitated elderly people. For federal agencies, a
state court determination that someone is incapacitated or reports from
physicians often provide evidence of a beneficiary's incapacity, but
agency procedures also allow statements from lay people to serve as a
sufficient basis for determining that a beneficiary needs someone to
handle benefit payments on their behalf--a representative payee. SSA,
OPM, and VA ask whether the alleged incapacitated person has been
appointed a guardian and often appoint that person or organization as
the representative payee. In some cases, however, the agencies choose
to select someone other than the court-appointed guardian.
In many cases, guardians are appointed with a full range of
responsibilities for making decisions about the incapacitated person's
health and well-being as well as their finances, but several states'
laws require the court to limit the powers granted to the guardian, if
possible. The court may appoint a "guardian of the estate" to make
decisions regarding the incapacitated person's finances or a "guardian
of the person" to make nonfinancial decisions. An incapacitated person
with little income other than benefits from SSA for example, might not
need a "guardian of the estate" if he or she already has a
representative payee designated by SSA to act on their behalf in
managing benefit payments. Sometimes the guardian is paid for their
services from the assets or income of the incapacitated person, or from
public sources if the incapacitated person is unable to pay. In some
cases, the representative payee is paid from the incapacitated person's
benefit payments.
Guardians and representative payees do not always act in the best
interest of the people they are appointed to protect. Some have
conflicts of interest that pose risks to incapacitated people. While
many people appointed as guardians or representative payees serve
compassionately, often without any compensation, some will act in their
own interest rather than in the interest of the incapacitated person.
Oversight of both guardians and representative payees is intended to
prevent abuse by the people designated to protect the incapacitated
people. While the incidence of elder abuse involving persons assigned a
guardian or representative payee is unknown, certain cases have
received widespread attention.
Collaboration to Protect Incapacitated Elderly People Continues to Be
Limited:
Our 2004 report noted that some state laws and some courts provide more
protection for incapacitated elderly people than others. State laws
have varied requirements for monitoring guardianships and court
practices in the states we visited also varied widely. Coordination
among federal agencies and courts was quite limited and on a case-by-
case basis. Since our report was issued, some states have strengthened
their guardianship programs and some efforts have been made to lay the
groundwork for better collaboration. However, there continues to be
little coordination between state courts and federal agencies in the
area of guardianships.
While State Court Procedures Vary in Their Oversight of Guardianships,
Some States Have Recently Strengthened Their Guardianship Programs:
In our 2004 review we determined that all 50 states and the District of
Columbia have laws requiring courts to oversee guardianships. At a
minimum, most states' laws require guardians to submit a periodic
report to the court, usually at least once annually, regarding the well-
being of the incapacitated person. Many states' statutes also authorize
measures that courts can use to enforce guardianship responsibilities.
However, court procedures for implementing guardianship laws appear to
vary considerably. For example, most courts in each of the three states
responding to our survey require guardians to submit time and expense
records to support petitions for compensation, but each state also has
courts that do not require these reports. We also found that some
states are reluctant to recognize guardianships originating in other
states. Few have adopted procedures for accepting transfer of
guardianship from another state or recognizing some or all of the
powers of a guardian appointed in another state. This complicates life
for an incapacitated elderly person who needs to move from one state to
another or when a guardian needs to transact business on his or her
behalf in another state.
In addition, guardianship data are scarce. Most courts we surveyed did
not track the number of active guardianships, let alone maintain data
on abuse by guardians. Although this basic information is needed for
effective oversight, no more than one-third of the responding courts
tracked the number of active guardianships, and only a few could
provide the number that were for elderly people specifically.
Since issuance of our report, several states have passed new
legislation amending their guardianship laws. During 2004, for example,
14 states amended their laws related to guardianships, and in 2005 at
least 15 states did so, according to the American Bar Association's
annual compilations. Alaska, for example, established requirements for
the licensing of private professional guardians and, in January of this
year, New Jersey began requiring the registration of professional
guardians. Acting on legislation in 2004, the California court system
established an education requirement for guardians and a 15-hour-per-
year continuing education requirement for private professional
guardians.[Footnote 4] In 2004 Hawaii adopted legislation requiring
that guardians provide the court annual accountings. Wisconsin also
adopted a major revision of its guardianship code this year; it
establishes a new requirement that the guardian regularly visit the
incapacitated person to assess their condition and the treatment they
are receiving. The new law also leaves in effect powers of attorney
previously granted by the incapacitated person unless it finds good
cause to revoke them, and establishes procedures for recognition of
guardianships originating in other states.
Several states' guardianship law amendments established or strengthened
public guardian programs, including those in Texas, Georgia, Idaho,
Iowa, Virginia, Nevada, and New Jersey. In Georgia and New Jersey, for
example, public guardians must now be registered. Public guardians are
public officials or publicly funded organizations that serve as
guardians for incapacitated people who do not have family members or
friends to be their guardian and cannot afford to pay for the services
of a private guardian.
"Exemplary" Courts Focus on Training and Monitoring:
In our 2004 report several courts were identified as having "exemplary"
programs. As we conducted our review, we sought particular courts that
those in the guardianship community considered to have exemplary
practices. Each of the four courts so identified distinguished
themselves by going well beyond minimum state requirements for
guardianship training and oversight. For example, the court we visited
in Florida provides comprehensive reference materials for guardians to
supplement training. With regard to active oversight, the court in New
Hampshire recruits volunteers, primarily retired senior citizens, to
visit incapacitated people, their guardians, and care providers at
least annually, and submit a report of their findings to court
officials. Exemplary courts in Florida and California also have
permanent staff to investigate allegations of fraud, abuse, or
exploitation. The policies and practices associated with these courts
may serve as models for those seeking to assure that guardianship
programs serve the elderly well.
We recently contacted officials in each of these courts and received
responses from two of them. We learned that officials in these two
courts have worked to help strengthen statewide guardianship programs.
For example, court officials in Fort Worth, Texas, have helped
encourage adoption of Texas' recent reform legislation. However, we
could not determine whether other courts had adopted these courts'
practices.
State Courts and Federal Representative Payee Programs Serve Many of
the Same Incapacitated Elderly People, but Continue to Collaborate
Little in Oversight Efforts:
There is also a role for the federal government in the protection of
incapacitated people. Federal agencies administering benefit programs
appoint representative payees for individuals who become incapable of
handling their own benefits. The federal government does not regulate
or provide any direct support for guardianships, but state courts may
decide that the appointment of a guardian is not necessary if a
representative payee has already been assigned. In our study, we found
that although courts and federal agencies are responsible for
protecting many of the same incapacitated elderly people, they
generally work together only on a case-by-case basis. With few
exceptions, courts and federal agencies don't systematically notify
other courts or agencies when they identify someone who is
incapacitated, nor do they notify them if they discover that a guardian
or a representative payee is abusing the person. This lack of
coordination may leave incapacitated people without the protection of
responsible guardians and representative payees or, worse, with an
identified abuser in charge of their benefit payments.
Since issuance of our report, we have not found any indication that
coordination among the federal agencies or between federal agencies and
the state courts has changed. SSA did, however, contract with the
National Academies for a study of its representative payee program. The
study committee issued a letter report including preliminary
observations in 2005, and a final report is scheduled for release in
May 2007.[Footnote 5] The committee plans to use a nationally
representative survey of representative payees and the beneficiaries
they serve in order to (1) assess the extent to which the
representative payees are performing their duties in accordance with
standards, (2) learn whether representative payment policies are
practical and appropriate; (3) identify types of representative payees
that have the highest risk of misuse of benefits; and (4) suggest ways
to reduce the risk of misuse of benefits and ways to better protect
beneficiaries.
Limited Progress Has Been Made on Recommendations from 2004:
Only limited progress has been made on our recommendations. In one
recommendation we suggested that SSA convene an interagency study group
to increase the ability of representative payee programs to protect
federal benefit payments from misuse. Although VA, HHS, and OPM
indicated their willingness to participate in such a study group, SSA
disagreed with this recommendation. SSA stated that its responsibility
focuses on protecting SSA benefits, cited concern about the difficulty
of interagency data sharing and Privacy Act restrictions, and indicated
that leadership of the study group would not be within its purview. We
checked with SSA recently and learned that its position has not
changed. Coordination among federal agencies and between federal
agencies and state courts remains essentially unchanged, according to
agency and court officials we spoke with. SSA continues to provide
limited information to the VA in cases where issues arise such as
evidence of incapability or misuse of benefits. However, to ensure that
no overpayment of VA benefits occurs, SSA will provide appropriate VA
officials requested information as to the amount of Social Security
benefit savings reported by the representative payee.
In 2004, we also recommended that HHS work with national organizations
involved in guardianship programs to provide support and leadership to
the states for cost-effective pilot and demonstration projects to
facilitate state efforts to improve oversight of guardianships and to
aid guardians in the fulfillment of their responsibilities.
Specifically, we recommended that HHS support the development of cost-
effective approaches for compiling consistent national data concerning
guardianships. HHS made a step in this direction by supporting a study
by the American Bar Association Commission on Law and Aging of the
guardianship data practices in each state, which could prove helpful in
efforts to move toward more consistent and comprehensive data on
guardianships.[Footnote 6] The study found that although several states
collect at least some basic data on guardianships, most still do not.
Only about a third of states receive trial court reports on the number
of guardianship filings. A total of 33 states responded to a question
about whether they were interested in compiling data. Of these, 21
expressed interest and 12 indicated that they are not interested, as
the barriers are too high. Thus, it is still not possible to determine
how many people in the U.S. of any age are assigned guardians each
year, let alone the number of elderly people who are currently under
such protection.
Third, we recommended that HHS support the study of options for
compiling data from federal and state agencies concerning the incidence
of elder abuse in cases in which the victim had granted someone the
durable power of attorney or had been assigned a fiduciary, such as a
guardian or representative payee, as well as cases in which the victim
did not have a fiduciary. HHS has taken a step in this direction by
supporting the inclusion of questions about guardians in the National
Center on Elder Abuse's annual survey of state adult protective
services agencies.[Footnote 7] Specifically, the survey asked each
state about cases in which a guardian was the source of a report of
abuse or was the alleged perpetrator in state fiscal year 2003. Only 11
states provided information about the source of reports of abuse.
Similarly, 11 states indicated the relationship between the victims and
the alleged perpetrators. Guardians were not often cited in either
case. Indeed, a recent study found that existing data cannot provide a
clear picture of the incidence and prevalence of elder abuse.[Footnote
8]
Finally, we also recommended that HHS facilitate a review of state
policies and procedures concerning interstate transfer and recognition
of guardianship appointments to facilitate efficient and cost-effective
solutions for interstate jurisdictional issues. The National Conference
of Commissioners on Uniform State Laws (NCCUSL) met in July 2006 and
issued a discussion draft for a Uniform Adult Guardianship and
Protective Proceedings Jurisdiction Act. This draft contains provisions
that would allow guardianships to be formally recognized by another
state or transferred to another state. The draft is being refined, and
a NCCUSL committee plans to discuss it at another meeting this
November. Passage of this draft by the NCCUSL does not, however,
guarantee that states will follow its provisions because they must
decide on their own whether to amend their own laws.
Some Developments Regarding Guardianships Appear Promising:
While little progress has been made on several of our specific
recommendations, other steps taken since the release of our report are
more promising. In November of 2004, a joint conference of the National
Academy of Elder Law Attorneys, the National Guardianship Association
and the National College of Probate Judges convened a special session
to develop an action plan on guardianships.[Footnote 9] This
implementation session developed a series of 45 action steps that could
be taken at the national, state, and local levels in order to
accomplish a select subset of the recommendations made at the 2001
Second National Guardianship Conference--the "Wingspan Conference."
These action steps fall into five main categories: the development of
interdisciplinary guardianship committees at the national, state, and
local levels; the development of uniform jurisdiction procedures,
uniform data collection systems, and innovative funding mechanisms for
guardianships; the enhancement of training and certification for
guardians and the encouragement of judicial specialization in
guardianship matters; the encouragement of the most appropriate and
least restrictive types of guardianships; and the establishment of
effective monitoring of guardianships. The identification of these
action steps and the work that has begun on them reflects a high level
of commitment by the professionals working in the field.
In some cases work has begun on these action steps. Both the House and
the Senate versions of bills calling for an Elder Justice Act[Footnote
10] would establish an Advisory Board on Elder Abuse, Neglect, and
Exploitation charged with making several recommendations including some
concerning the development of state interdisciplinary guardianship
committees. As noted earlier, the Commission on Uniform State Law has
issued a discussion draft of a Uniform Adult Guardianship and
Protective Proceedings Jurisdiction Act. Wisconsin's adoption of a
reformed guardianship law this year emphasizes the use of the least
restrictive type of guardianship that is appropriate. Regarding the
monitoring of guardianships, recently Texas and New Jersey joined
several states that now have programs in place to license, certify, or
register professional guardians. In 2005, Colorado began requiring
prospective guardians (with some exceptions such as parents who are
seeking to be guardians for their children) to undergo criminal
background checks.
Concluding Observations:
In conclusion, as the number of elderly Americans grows dramatically,
the need for guardianship arrangements seems likely to rise in
response, and ensuring that such arrangements are safe and effective
will become increasingly important. Progress on fulfilling some of our
recommendations has been slow where it has occurred, and for some, no
steps have been taken at all. The lack of leadership from a federal
agency, and states' differing approaches to guardianship matters, make
it difficult to realize quick improvements. Nonetheless, many people
actively involved in guardianship issues continue to look for ways to
make improvements. Emulating exemplary programs such as the four we
examined would surely help, but we believe more can also be done to
better coordinate across states, federal agencies, and courts. In our
2004 report we concluded that the prospect of increasing numbers of
incapacitated elderly people in the years ahead signals the need to
reassess the way in which state and local courts and federal agencies
work together in efforts to protect incapacitated elderly people. Your
Committee has played an important role in bringing these problems to
light and continuing to seek improvements. In the absence of more
federal leadership, however, progress is likely to continue to be slow,
particularly in the coordination among federal agencies and between
federal agencies and state courts.
Mr. Chairman and Members of the Committee, this concludes my prepared
statement. I'd be happy to answer any questions you may have.
[End of section]
Appendix I: GAO Contact and Staff Acknowledgments:
GAO Contact:
Barbara D. Bovbjerg, Director, Education, Workforce, and Income
Security Issues at (202) 512-7215.
Acknowledgments:
Alicia Puente Cackley, Assistant Director; Benjamin P. Pfeiffer; Scott
R. Heacock; Mary E. Robison; and Daniel A. Schwimer also contributed to
this report.
FOOTNOTES
[1] For convenience, we use the term "guardian," though some states use
other terms. California, for example, uses the term "conservator" when
the incapacitated person is an adult.
[2] GAO, Guardianships: Collaboration Needed to Protect Incapacitated
Elderly People, GAO-04-655 (Washington, D.C.: July 13, 2004).
[3] The second national guardianship conference, known as the "Wingspan
Conference" was held at the Stetson University College of Law in
Florida on November 30 to December 1, 2001.
[4] Those who have served as guardians in California for 10 or more
people during the 2000 to 2005 period are exempt from the education
requirement for appointment, but are subject to the annual continuing
education requirement.
[5] Committee on Social Security Representative Payees, National
Research Council, "Assessment of the Representative Payee Program of
the Social Security Administration: Letter Report," The National
Academies, August 4, 2005.
[6] Erica F. Wood, "State-Level Adult Guardianship Data: An Exploratory
Survey," American Bar Association Commission on Law and Aging for the
National Center on Elder Abuse, August 2006.
[7] Pamela Teaster et al., The 2004 Survey of State Adult Protective
Services: Abuse of Adults 60 Years of Age and Older (Boulder, Colo.:
February 2006).
[8] Erica F. Wood, The Availability and Utility of Interdisciplinary
Data on Elder Abuse: A White Paper for the National Center on Elder
Abuse, American Bar Association Commission on Law and Aging for the
National Center on Elder Abuse (Washington, D.C.: May 2006).
[9] In addition to participants from the three organizations,
representatives from the American Bar Association Commission on Law and
Aging, the American Bar Association Section on Real Property, Probate
and Trust Law, and the American College of Trust and Estate Counsel all
participated in this conference.
[10] Elder Justice Act, HR 4993, 109TH Cong., 2d sess. (2006) and S
2010, 109TH Cong., 1ST sess. (2005).
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