Incapacitated Adults
Oversight of Federal Fiduciaries and Court-Appointed Guardians Needs Improvement Gao ID: GAO-11-678 July 22, 2011If Social Security (SSA), Veterans Affairs (VA), and state courts find that adults are incapacitated, they appoint federal fiduciaries and court-appointed guardians to make decisions on their behalf. Incapacity is often associated with old age, so if these arrangements are not overseen, older adults could be vulnerable to financial exploitation. This report assesses (1) SSA, VA, and state court procedures for screening potential fiduciaries and guardians; (2) SSA, VA, and state court fiduciary and guardian monitoring; (3) information sharing between SSA and VA and between each agency and state courts; and (4) federal support for court oversight of guardians. GAO interviewed federal and court officials and experts, and reviewed federal laws, regulations, and policies, and others' compilations of state guardianship laws.
SSA, VA, and state courts have screening procedures for ensuring that fiduciaries and guardians are suitable. SSA and VA strive to prevent individuals who have misused beneficiaries' payments from serving again, and each is currently developing an automated system that will enhance its ability to compile and maintain information about misuse of benefits by fiduciaries. Similarly, according to the AARP Public Policy Institute, laws in most states require courts to follow certain procedures for screening guardians. However, only 13 states conduct criminal background checks on all potential guardians. There are also statutes and regulations requiring SSA and VA to monitor fiduciary performance. Fiduciaries in each agency must periodically report on their responsibilities. Similarly, most states require courts to obtain annual reports from guardians. There is evidence that guardianship monitoring by state courts, however, needs improving, and promising practices have been proposed to strengthen it. Given limited resources for monitoring, courts may be reluctant to invest in these practices without evidence of their feasibility and effectiveness from projects designed to evaluate these practices. Gaps in information sharing may adversely affect incapacitated adults. When VA and SSA have incapacitated beneficiaries in common, sharing certain information about them could enhance each agency's ability to protect the interests of these beneficiaries. While SSA and VA do not systematically share such information, VA can obtain such information from SSA on a case-by-base basis. SSA officials indicated, however, that obtaining similar information from VA may not be cost-effective given the relatively small proportion of SSA beneficiaries who also collect VA benefits. It is also in the best interest of incapacitated beneficiaries for federal agencies to disclose certain information about these beneficiaries and their fiduciaries to state courts. National organizations representing elder law attorneys and advocating for elder rights have noted that courts have difficulty obtaining such information when it is needed, particularly from SSA. The federal government has a history of funding technical assistance and training related to guardianship for state courts, primarily through the AoA within HHS. In 2008, AoA established the National Legal Resource Center (NLRC) to support improvements in legal assistance for older adults and to support elder rights protections. Among its other projects, NLRC has supported an evaluation of Utah's public guardian program. Because of the federal government's activities in this area, it is well positioned and has an opportunity to lead in ensuring the rights of incapacitated adults with court-appointed guardians by supporting evaluations of promising court monitoring practices. The Department of Health and Human Services (HHS) should consider funding evaluations of practices for monitoring guardians, and HHS agreed that the Administration on Aging (AoA) has the authority to take such action. GAO also believes SSA should determine how it can, under current law, disclose certain information about beneficiaries and fiduciaries to state courts, upon request. SSA disagreed and asserted that Privacy Act limitations prevent sharing this information with state courts. Given SSA's position, it should take whatever measures necessary to allow it to do so, including proposing legislative changes.
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: Kay E. Brown Team: Government Accountability Office: Education, Workforce, and Income Security Phone: (202) 512-3674GAO-11-678, Incapacitated Adults: Oversight of Federal Fiduciaries and Court-Appointed Guardians Needs Improvement
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United States Government Accountability Office:
GAO:
Report to the Chairman, Special Committee on Aging, U.S. Senate:
July 2011:
Incapacitated Adults:
Oversight of Federal Fiduciaries and Court-Appointed Guardians Needs
Improvement:
GAO-11-678:
GAO Highlights:
Highlights of GAO-11-678, a report to the Chairman, Special Committee
on Aging, U.S. Senate.
Why GAO Did This Study:
If Social Security (SSA), Veterans Affairs (VA), and state courts find
that adults are incapacitated, they appoint federal fiduciaries and
court-appointed guardians to make decisions on their behalf.
Incapacity is often associated with old age, so if these arrangements
are not overseen, older adults could be vulnerable to financial
exploitation. This report assesses (1) SSA, VA, and state court
procedures for screening potential fiduciaries and guardians; (2) SSA,
VA, and state court fiduciary and guardian monitoring; (3) information
sharing between SSA and VA and between each agency and state courts;
and (4) federal support for court oversight of guardians. GAO
interviewed federal and court officials and experts, and reviewed
federal laws, regulations, and policies, and others‘ compilations of
state guardianship laws.
What GAO Found:
SSA, VA, and state courts have screening procedures for ensuring that
fiduciaries and guardians are suitable. SSA and VA strive to prevent
individuals who have misused beneficiaries‘ payments from serving
again, and each is currently developing an automated system that will
enhance its ability to compile and maintain information about misuse
of benefits by fiduciaries. Similarly, according to the AARP Public
Policy Institute, laws in most states require courts to follow certain
procedures for screening guardians. However, only 13 states conduct
criminal background checks on all potential guardians.
There are also statutes and regulations requiring SSA and VA to
monitor fiduciary performance. Fiduciaries in each agency must
periodically report on their responsibilities. Similarly, most states
require courts to obtain annual reports from guardians. There is
evidence that guardianship monitoring by state courts, however, needs
improving, and promising practices have been proposed to strengthen
it. Given limited resources for monitoring, courts may be reluctant to
invest in these practices without evidence of their feasibility and
effectiveness from projects designed to evaluate these practices.
Gaps in information sharing may adversely affect incapacitated adults.
When VA and SSA have incapacitated beneficiaries in common, sharing
certain information about them could enhance each agency‘s ability to
protect the interests of these beneficiaries. While SSA and VA do not
systematically share such information, VA can obtain such information
from SSA on a case-by-base basis. SSA officials indicated, however,
that obtaining similar information from VA may not be cost-effective
given the relatively small proportion of SSA beneficiaries who also
collect VA benefits. It is also in the best interest of incapacitated
beneficiaries for federal agencies to disclose certain information
about these beneficiaries and their fiduciaries to state courts.
National organizations representing elder law attorneys and advocating
for elder rights have noted that courts have difficulty obtaining such
information when it is needed, particularly from SSA.
The federal government has a history of funding technical assistance
and training related to guardianship for state courts, primarily
through the AoA within HHS. In 2008, AoA established the National
Legal Resource Center (NLRC) to support improvements in legal
assistance for older adults and to support elder rights protections.
Among its other projects, NLRC has supported an evaluation of Utah‘s
public guardian program. Because of the federal government‘s
activities in this area, it is well positioned and has an opportunity
to lead in ensuring the rights of incapacitated adults with court-
appointed guardians by supporting evaluations of promising court
monitoring practices.
What GAO Recommends:
The Department of Health and Human Services (HHS) should consider
funding evaluations of practices for monitoring guardians, and HHS
agreed that the Administration on Aging (AoA) has the authority to
take such action.
GAO also believes SSA should determine how it can, under current law,
disclose certain information about beneficiaries and fiduciaries to
state courts, upon request.
SSA disagreed and asserted that Privacy Act limitations prevent
sharing this information with state courts. Given SSA‘s position, it
should take whatever measures necessary to allow it to do so,
including proposing legislative changes.
View [hyperlink, http://www.gao.gov/products/GAO-11-678] or key
components. For more information, contact Kay Brown at (202) 512-7215
or brownke@gao.gov.
[End of section]
Contents:
Letter:
Background:
SSA, VA, and Some States Take Steps to Screen Fiduciaries or Guardians:
SSA and VA Have Procedures for Monitoring Fiduciaries, but Monitoring
Guardians Can Be Challenging for Many Courts:
Information Sharing among Federal Fiduciary Programs and State Courts
Could Improve Protection of Incapacitated Adults:
The Administration on Aging Has Taken Some Steps That Could Help State
Courts Improve Oversight of Guardianships:
Conclusions:
Recommendations for Executive Action:
Agency Comments:
Appendix I: Comments from the Department of Health and Human Services:
Appendix II: Comments from the Department of Veterans Affairs:
Appendix III: Comments from the Social Security Administration:
Appendix IV: GAO Contact and Staff Acknowledgments:
Table:
Table 1: Promising Practices for Court Monitoring:
Abbreviations:
ABA: American Bar Association:
AoA: Administration on Aging:
DI: Disability Insurance:
HHS: Department of Health and Human Services:
NLRC: National Legal Resource Center:
OAA: Older Americans Act:
OASI: Old-Age and Survivors Insurance:
SSA: Social Security Administration:
SSI: Supplemental Security Income:
TCSG: the Center for Social Gerontology:
VA: Department of Veterans Affairs:
[End of section]
United States Government Accountability Office:
Washington, DC 20548:
July 22, 2011:
The Honorable Herb Kohl:
Chairman:
Special Committee on Aging:
United States Senate:
Dear Mr. Chairman:
When federal agencies such as the Social Security Administration (SSA)
and the Department of Veterans Affairs (VA) determine that an adult
receiving cash benefits through one of their programs is
incapacitated, they appoint a responsible third party to ensure these
payments are used in the beneficiary's best interest. The responsible
parties who receive SSA benefits on behalf of incapacitated
individuals are known as representative payees, while those who
receive VA benefits are known as fiduciaries.[Footnote 1] Similarly,
courts in each state have the authority to appoint a guardian or
conservator for individuals the court determines to be incapacitated.
[Footnote 2] Generally, guardianships are legal relationships created
when a state court grants one person or entity the authority and
responsibility to make decisions in the best interest of an
incapacitated individual concerning his or her person or property.
[Footnote 3]
Incapacity is often associated with old age, and as of December 2009,
765,771 SSA beneficiaries age 65 or older had fiduciaries--a 7 percent
increase since December 2003. As of July 2011, 56,077 VA beneficiaries
age 65 or older had fiduciaries--a 21 percent increase since September
2003. Few national data are available on the number of guardians state
courts have appointed. As the number and proportion of older adults in
the population increases, so will the demand for federal fiduciaries
and court-appointed legal guardians.[Footnote 4]
Fiduciary and guardianship arrangements are not without risk to
incapacitated adults, who are vulnerable to financial exploitation by
their fiduciaries and guardians. In a 2010 report, we identified
hundreds of allegations of abuse, neglect, and exploitation by
guardians in 45 states and the District of Columbia between 1990 and
2010. At that time, we reviewed 20 of these cases and found that
guardians had stolen or otherwise improperly obtained $5.4 million
from 158 incapacitated victims, many of whom were older adults.
[Footnote 5]
To protect against such exploitation, federal agencies and state
courts generally are responsible for screening proposed fiduciaries
and guardians to make sure they appoint suitable individuals to
oversee the federal cash benefits and other finances of incapacitated
adults. They are also generally responsible for monitoring the
performance of those they appoint. This report assesses (1) SSA and VA
procedures for screening prospective federal fiduciaries, and state
court procedures for screening prospective guardians; (2) SSA and VA
monitoring of federal fiduciary performance, and state court
monitoring of guardian performance; (3) information sharing between
SSA and VA fiduciary programs and between each of these programs and
state courts; and (4) federal support for improving state courts'
oversight of guardianships.
To obtain this information, we interviewed and contacted officials
from SSA, VA, and the Administration on Aging (AoA) in the Department
of Health and Human Services (HHS). We also interviewed officials from
state courts considered to have noteworthy guardianship programs by
the National Center for State Courts and other experts. These included
courts in California, Delaware, the District of Columbia, Florida,
Minnesota, and Texas. We reviewed relevant federal laws, regulations,
and policies regarding SSA and VA fiduciary programs, including
written procedures for screening or determining the suitability of
proposed fiduciaries and for monitoring their performance. We also
reviewed compilations of state guardianship laws developed by the
American Bar Association Commission on Law and Aging and AARP. With
regard to information sharing in this area and federal support for
improving court guardianship monitoring, we interviewed relevant
agency officials and reviewed relevant reports and documents. We did
not independently verify implementation of federal laws, regulations,
or policies described in this report.
We conducted this performance audit between June 2010 and June 2011 in
accordance with generally accepted government auditing standards.
These standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe
that the evidence obtained provides a reasonable basis for our
findings and conclusions based on our audit objectives.
Background:
Under federal law, SSA[Footnote 6] and VA[Footnote 7] are authorized
to determine whether beneficiaries are capable of managing their own
cash benefits and, if not, to designate a responsible third party to
serve as their fiduciary. SSA-designated fiduciaries are responsible
for ensuring that these benefits are used to pay for beneficiaries'
food, clothing, housing, medical care, personal items, and other
immediate and reasonably foreseeable needs. Similarly, VA fiduciaries
are required to manage VA payments for the use and benefit of
veterans. SSA and VA can designate spouses, other family members,
friends, and organizations to serve as fiduciaries. If an
incapacitated adult already has a guardian appointed by a court, SSA
and VA may designate that guardian as the beneficiary's fiduciary.
Qualified organizations that serve as SSA fiduciaries may receive a
fee for this service if they represent at least five beneficiaries and
are not a creditor of the beneficiary.[Footnote 8] VA-designated
fiduciaries, excluding those who are dependents or other close family
members, may receive a fee for serving as a fiduciary, if VA
determines that a commission is necessary to obtain fiduciary
services.[Footnote 9] SSA and VA fiduciaries permitted to receive fees
obtain them from the incapacitated person's funds.
In general, state courts appoint a guardian for adults when a judge or
other court official determines that an adult lacks the capacity to
make important decisions regarding his or her own life or property.
Depending on the incapacitated person's needs, a court can appoint a
single guardian who is responsible for making all decisions for the
incapacitated person. A court can also appoint either a "guardian of
the estate" who makes decisions regarding the incapacitated person's
property and/or a "guardian of the person" who makes all other
decisions. Courts can appoint a private professional guardian or
private organization if an incapacitated adult's income and assets can
cover their fee.[Footnote 10] Otherwise courts must turn to publicly
funded individuals or organizations, or unpaid volunteers.
When state courts appoint guardians, incapacitated adults often
forfeit some or all of their civil liberties; under SSA and VA
programs, they do not. Depending on the terms of the court's
guardianship appointment, they may no longer have the right to sign
contracts, vote, marry or divorce, buy or sell real estate, decide
where to live, or make decisions about their own health care.
Two key federal statutes play an important role in establishing the
federal government's role and responsibilities with regard to the well-
being and rights of older adults, including those for whom a court has
appointed a guardian--the Older Americans Act of 1965 (OAA), as
amended[Footnote 11] and the Elder Justice Act of 2009.[Footnote 12]
The OAA created the AoA within HHS. Among other responsibilities, AoA
administers formula grants made to state agencies on aging for elder
abuse awareness and prevention activities. The act also requires AoA
to develop objectives, priorities, policy, and a long-term plan for
facilitating the development, implementation, and continuous
improvement of a coordinated, multidisciplinary elder justice system
in the United States.[Footnote 13] The recent passage of the Elder
Justice Act reaffirmed the role of the federal government in this
area. The act created the Elder Justice Coordinating Council, made up
of representatives from the Departments of Health and Human Services
and Justice, and other relevant federal departments and agencies. The
council is charged with making recommendations to the Secretary of
Health and Human Services for the coordination of elder justice
activities across the federal government. It is also required to make
recommendations to the Congress for additional legislation or other
actions it determines to be appropriate in this area. The act requires
the council to report to the Congress no later than 2 years after
enactment and every 2 years thereafter.
SSA, VA, and Some States Take Steps to Screen Fiduciaries or Guardians:
Both SSA and VA are required by law to investigate potential
fiduciaries before they are designated to ensure they are suitable,
and certain types of individuals are prohibited from serving as
fiduciaries, with the SSA statute being more proscriptive in this
regard. For example, persons convicted of an offense that resulted in
imprisonment for more than 1 year cannot serve as SSA or VA
fiduciaries unless the agencies determine that an exception is
appropriate.[Footnote 14] However, while the SSA statute prohibits
former fiduciaries who have misused benefits from serving again,
unless SSA determines that an exception is in the best interest of the
beneficiary,[Footnote 15] we could find no explicit statutory or
regulatory provisions prohibiting these individuals from being
designated a VA fiduciary. A VA official told us that, in practice,
the agency does not designate individuals with a known history of
misuse, although we did not independently verify this.
Enhancements SSA and VA plan to make in their automated systems could
help them better screen potential fiduciaries to ensure that prior
fiduciaries who have misused cash benefits are not designated again.
SSA is required by statute to establish and maintain a centralized
file, which includes the names and Social Security numbers of
representative payees whose certification of payments of benefits has
been revoked or to whom payment of benefits has been terminated on or
after January 1, 1991, because of misuse of those benefits. SSA is
required to periodically update that file and maintain it in a form
retrievable by each SSA servicing office.[Footnote 16] According to
SSA officials, the agency currently has such a file. SSA officials
told us they are enhancing their automated system to better track and
maintain information for each fiduciary suspected of misusing a
beneficiary's payments from the initial allegation through final
resolution. SSA officials indicated that the first phase of these
enhancements is expected to be completed in July 2011.
Similarly, VA is required by law to annually report the number of
former fiduciaries who have misused benefits and other information
regarding these cases, and includes this information in its annual
Veterans Benefits Report to the Congress.[Footnote 17] However, VA
officials told us that when screening potential fiduciaries, field
office staff must rely on individual lists they compile of former
fiduciaries in their jurisdiction who have misused payments, and field
offices do not systematically share their lists with one another.
Consequently, a field office might unknowingly designate a fiduciary
that another field office has identified as having misused payments to
a beneficiary. VA officials indicated, however, that they are in the
process of updating their case management system, and it will
eventually contain nationwide information on fiduciary misuse that
will be accessible to all field offices.[Footnote 18] VA officials
told us that their new system was a priority and they anticipate it
will begin providing data on fiduciary misuse in 2012.
Regarding the courts, according to the 2011 AARP Public Policy
Institute compilation of state guardianship laws, most states restrict
who is eligible to be a guardian.[Footnote 19] In 9 states, laws
prohibit convicted felons from serving as guardians, and 2 states have
laws that prohibit convicted criminals from doing so. Only 13 states
require that guardians undergo independent criminal background checks
before being appointed.
SSA and VA Have Procedures for Monitoring Fiduciaries, but Monitoring
Guardians Can Be Challenging for Many Courts:
SSA and VA have similar procedures for monitoring fiduciary
performance. In addition, SSA is required by law to establish a system
of accountability monitoring that includes a requirement for periodic
reports from fiduciaries.[Footnote 20] Certain SSA organizational
fiduciaries and individuals serving as a fiduciary for 15 or more
beneficiaries are subject to periodic on-site review.[Footnote 21]
VA requires its fiduciaries to submit a two-page accounting report,
but asks those who are court-appointed guardians to submit the same
accountings that they submit to the court. All fiduciary accountings
submitted are required to include documents from financial
institutions, such as bank statements, covering the entire accounting
period. VA is required to conduct periodic on-site reviews of
institutional fiduciaries who oversee more than 20 beneficiaries with
combined benefits of at least $50,000.[Footnote 22] VA also conducts
periodic site visits with incapacitated beneficiaries to reevaluate
their condition and determine if their payments have been properly
used by their fiduciary. In 2010 we reported that the first routine
follow-up visit generally takes place 1 year after a fiduciary is
selected, and subsequent visits typically take place every 1 to 3
years.[Footnote 23] VA generally requires staff to obtain yearly
financial reports and bank statements from some fiduciaries to
determine how beneficiary funds were used.[Footnote 24]
Most states require court-appointed guardians to be monitored, but
specific requirements vary by state. According to the 2007 AARP
report, many have only limited resources to devote to monitoring,
however.[Footnote 25] The American Bar Association (ABA) Commission on
Law and Aging[Footnote 26] compilation of state guardianship
monitoring laws indicates that most states require courts to monitor
guardianships by obtaining an annual report from each guardian on the
incapacitated individual's condition, among other things.[Footnote 27]
In some states, court investigators may visit guardians and their
wards either regularly or on an as-needed basis.
The AARP Public Policy Institute has emphasized the importance of
monitoring guardians and the need for improvement in this area.
[Footnote 28] To promote improvement, the institute conducted an in-
depth study that identified nine promising current and emerging
practices to strengthen court monitoring (see table 1).[Footnote 29]
According to one AARP Public Policy Institute official, little has
been done to evaluate these practices, however.
Table 1: Promising Practices for Court Monitoring:
Promising practice: Reports, accounts, and plans;
Description: Requiring early first reports to ensure the guardian is
on track, providing clear and web-accessible forms, and requiring
prospective plans for personal decisions and estate management.
Promising practice: Court actions to facilitate reporting;
Description: Courts should provide ample support for guardians while
rigorously enforcing reporting responsibilities. E-filing, personal
instruction by judges and staff, automated reminder notices, and
scheduling compliance conferences all can help.
Promising practice: Practices to protect assets;
Description: To ensure that guardians properly manage finances and to
prevent financial abuse, courts can require a financial management
plan, require supporting documentation with accountings, and use
bonding and restricted accounts.
Promising practice: Court review of reports and accounts;
Description: Reports and accounts are of little use if courts do not
review them and respond to irregularities. Courts can use staff
auditors and state administrative agencies to conduct a baseline
review, and could perform more in-depth review in a random sample of
cases.
Promising practice: Investigation, verification, and sanctions;
Description: Someone needs to visit the incapacitated person, and it
can be a trained staff investigator, a trained volunteer monitor, or a
court-appointed attorney or investigator. Sanctions such as fines,
removal, and calling in bonds address malfeasance.
Promising practice: Database and other technology;
Description: Use of technology, such as an e-filing system with
automatic capacity to flag problems, may be the most important trend
for monitoring in an age when funds for staff are scarce.
Promising practice: Court links with community groups and government
agencies;
Description: Working with community resources and agencies like adult
protective services and long-term care ombudsmen can leverage training
resources, enhance volunteer monitoring, and extend the court's reach.
Promising practice: Guardian training and assistance;
Description: Court handbooks, videos, and other resources for
guardians, as well as required training for professional fiduciaries,
are promising tools.
Promising practice: Funding for monitoring;
Description: Ideas for bolstering resources include dedicating filing
and investigation fees to monitoring, using volunteers well, raising
the awareness of county councils, and doing "things that do not cost a
dime."
Source: AARP Public Policy Institute. Guarding the Guardians:
Promising Practices for Court Monitoring.
[End of table]
These practices have received attention from national organizations in
the guardianship community, and courts are beginning to integrate some
into their monitoring efforts. According to an official from the
National Center for State Courts, the National College of Probate
Judges is considering incorporating versions of these practices into
the update of National Probate Court Standards. In addition, national
organizations in the guardianship community are disseminating these
practices via their websites as a resource to courts and others, and
some have been adopted in certain locations. For example, courts with
limited funding have demonstrated their commitment to strengthen
monitoring by "bolstering resources." Officials from Delaware, the
District of Columbia, and Texas said that their states have recruited
volunteers to help oversee guardians. Officials from Delaware told us
these volunteers serve as liaisons between guardians and the courts,
visit guardians and wards, and report to court officials approximately
once every 6 months. In addition, an official from the AARP Public
Policy Institute told us one court in Minnesota has adopted a system
that allows guardians to e-file their accounting reports, that New
Mexico passed a law requiring newly appointed guardians to file their
initial report in 90 days instead of a year, and that Nebraska passed
similar legislation, as well as a requirement that most guardians
overseeing assets exceeding $10,000 be bonded.
Although it appears courts are beginning to adopt promising monitoring
practices aimed at improving oversight of guardians, limited resources
for monitoring may prevent many courts from adopting most of them. The
AARP Public Policy Institute reported in 2007 that sufficient
resources to fund staff, technology, training, and materials are
needed to effectively monitor guardians, and institute officials told
us that judges and court administrators would like to improve
guardianship monitoring. In our 2004 survey of selected state courts
in California, New York, and Florida, however, most indicated they did
not have sufficient funds to oversee guardianships.[Footnote 30] Given
the courts' limited resources, an official from the Public Policy
Institute observed that evaluations of promising practices aimed at
establishing their feasibility or effectiveness could encourage courts
to invest in practices that could improve their monitoring practices.
Information Sharing among Federal Fiduciary Programs and State Courts
Could Improve Protection of Incapacitated Adults:
Federal officials have long recognized the need for better exchange of
information between federal fiduciary programs, particularly when they
have beneficiaries in common. In addition, a study of SSA's fiduciary
program by the National Research Council emphasized the importance of
information sharing between SSA and state courts. Sharing certain
information about beneficiaries and fiduciaries could enhance, for
example, both SSA's and VA's ability to protect the interests of their
incapacitated beneficiaries. According to agency officials, however,
SSA and VA fiduciary programs do not systematically share such
information. VA does have access to this information from SSA, but
only on a case-by-case basis, and SSA officials indicated that
obtaining such information from VA may not be cost-effective
considering the relatively few SSA beneficiaries who also collect VA
cash benefits. SSA officials also told us they believe that the
Privacy Act places some limitations on their ability to share their
fiduciary program information with state courts that appoint guardians.
Information Sharing between SSA and VA:
In 2004, we reported that federal officials have long recognized the
need for better exchange of information between federal fiduciary
programs, particularly when they have beneficiaries in
common.[Footnote 31] To improve the ability of these programs to
adequately protect the interests of incapacitated adults, we
recommended that SSA convene an interagency study group, consisting of
representatives from various federal fiduciary programs, to assess the
cost and benefit of sharing:
1. the identities of beneficiaries federal agencies have in common and
have determined to be incapacitated,
2. the identities of fiduciaries federal agencies designate for
beneficiaries they have in common, and:
3. the identities of fiduciaries who fail to fulfill their duties for
beneficiaries federal agencies have in common.
While VA indicated its willingness to participate in this study group,
SSA indicated that leading such a group was beyond its purview. In the
absence of action by SSA in response to our 2004 recommendation, VA
has taken steps to promote information sharing by convening an
interagency working group consisting of VA officials and
representatives from SSA, the Office of Personnel Management, and the
Department of Defense.[Footnote 32] This working group first met in
January 2011 and plans to continue meeting on a quarterly basis. The
group identified areas for improvement during the first meeting,
including the need for more data sharing--for example, on fiduciaries
in each agency who have misused benefit payments--and better alignment
between different agencies' processes and procedures.
Although the Privacy Act generally prohibits an agency from disclosing
information from a system of records without the consent of the
individual to whom the record pertains, an agency may disclose such
information without consent if there is a published statement of
routine use that permits this disclosure.[Footnote 33] SSA officials
told us that the agency has routine use provisions for multiple SSA
systems of records that support SSA/VA data exchanges and that there
is a current data exchange agreement between SSA and VA. In accord
with this agreement, VA can directly query an SSA automated system on
a case-by-case basis to obtain information about individual SSA
beneficiaries. This information includes whether or not SSA has
determined that the beneficiary is incapacitated and, if so, the
identity of that beneficiary's SSA fiduciary, the date of the
fiduciary's appointment, and contact information for the fiduciary.
Under this data exchange agreement, VA is not able to determine if a
specific person has ever been appointed an SSA fiduciary or, if so,
whether that person has ever misused SSA benefits or had his or her
fiduciary responsibilities revoked by SSA. A VA field office may
request this information from a local SSA office on a case-by-case
basis, and SSA policy describes how such requests should be made and
how SSA should respond to them.
According to SSA officials, the agency does not routinely request the
same type of information from VA, however, and the VA data exchange
agreement does not allow SSA to access information from any VA record
systems. While it is very common for VA beneficiaries to also collect
SSA benefits, it is less common for SSA beneficiaries to also collect
VA benefits. Consequently, SSA officials indicated that it may not be
cost-effective for SSA to systematically check VA fiduciary program
information when it designates SSA fiduciaries. Moreover, there are no
requirements for either SSA or VA to systematically notify the other
when one of their fiduciaries has misused cash benefits.[Footnote 34]
SSA policy, however, is to share that information on a case-by-case
basis if requested by VA.
Information Sharing between Federal Fiduciary Programs and State
Courts:
With regard to state courts' access to SSA beneficiary and fiduciary
information, officials from two national organizations representing
elder law attorneys and advocating for elder rights, respectively,
told us it is difficult for state courts to obtain this information
from SSA when it is needed. Moreover, the 2007 National Research
Council report on the SSA fiduciary program emphasized the importance
of information sharing between SSA and the courts.[Footnote 35] This
report went on to say that "conflicts among federal law, SSA policies,
and state practices" could arise when an incapacitated adult's SSA-
designated fiduciary and his or her court-appointed guardian are not
the same person. Because the accounting requirements and other rules
that apply to SSA fiduciaries are likely to be different from those
that apply to court-appointed guardians, the report further noted that
"violation of Social Security Administration rules, inefficiencies and
inaccuracies in reporting, delays in payee selection, and duplication
of effort" could also result. In light of these findings, the report
recommended that SSA give preference to existing legal guardians when
designating a fiduciary. SSA regulations indicate that existing
guardians, if known, should be given preference when SSA designates a
fiduciary.[Footnote 36] According to SSA officials, however, existing
guardians are not automatically designated SSA fiduciaries if a more
suitable payee applicant exists.
Because a statement of routine use allowing SSA to share beneficiary
or fiduciary information with state courts does not currently exist,
SSA does not believe it is permitted to provide information to state
courts about an SSA beneficiary or that beneficiary's SSA fiduciary
without the beneficiary's consent. While VA is permitted to access SSA
information based on a statement of routine use and a data exchange
agreement with SSA, according to SSA officials, the agency has not yet
determined whether any existing statement of routine use would permit
disclosure of SSA information to courts, nor has the agency considered
establishing one.
Regarding information sharing between VA and state courts, according
to a VA official, the agency has no written policy on how requests for
information about VA beneficiaries from state courts that appoint
guardians should be handled. However, in guardianship proceedings
involving VA beneficiaries, the agency does share its information
about these beneficiaries with a court when a court requests this
information. In addition, VA currently has ongoing data-sharing
agreements with courts in Denver County, Colorado, and Hennepin
County, Minnesota. Further, to encourage data sharing between its
fiduciary program and courts, VA has engaged in outreach with
organizations such as the National Academy of Elder Law Attorneys
[Footnote 37] and the National Guardianship Association.[Footnote 38]
The Administration on Aging Has Taken Some Steps That Could Help State
Courts Improve Oversight of Guardianships:
AoA, within HHS, has provided support to state courts, as well as
national guardianship organizations for technical assistance,
training, and dissemination of existing information on guardianship.
In 2008, it established the National Legal Resource Center (NLRC), in
part to support demonstration projects designed to improve the
delivery of legal assistance and enhance elder rights protections for
older adults with social or economic needs. According to AoA
officials, with NLRC funding, its partners have provided training,
case consultation, and technical assistance related to guardianship
with NLRC funding.[Footnote 39] For example,
* In response to long-standing issues concerning interstate transfer
and recognition of guardianship appointments,[Footnote 40] ABA's
Commission on Law and Aging has helped the Uniform Law
Commission[Footnote 41] draft and promote adoption of the Uniform
Adult Guardianship and Protective Proceedings Jurisdiction Act, a
model law for states.[Footnote 42]
* The Center for Social Gerontology (TCSG)[Footnote 43] has evaluated
Utah's public guardian program.
* TCSG has helped develop recommendations for a public guardianship
program in Oregon.
* TCSG has advised South Carolina on revising guardianship provisions
in its probate code.
AoA officials told us that, in addition to funding NLRC, the agency
also has supported efforts to develop training modules on guardianship
for elder law attorneys, and a 2009 guardianship webinar training.
[Footnote 44] According to an AoA official, however, AoA has not
recently supported any efforts to evaluate guardian monitoring
practices.
Conclusions:
Federal agencies and state courts are responsible for ensuring that,
respectively, fiduciaries and guardians appointed to oversee the cash
benefits and other finances of incapacitated adults act in their best
interest. The number of incapacitated adults is likely to grow as the
population ages, signaling the need for agencies and state courts to
find better ways to share information that will protect these adults
from financial exploitation.
Information about SSA's incapacitated beneficiaries and their
fiduciaries could help state courts avoid appointing individuals who,
while serving as SSA fiduciaries, have misused beneficiaries' SSA
payments in the past, and provide courts with potential candidates for
guardians when there are no others available. Currently, SSA does not
have a statement of routine use allowing it to share beneficiary or
fiduciary information with state courts, however.
Monitoring court-appointed guardians' performance can prevent
financial exploitation of incapacitated adults and stop it when it
occurs. Adopting promising monitoring practices could help courts
improve monitoring. However, many courts have limited resources, so
they may be reluctant to invest in practices that have not been proven
feasible or effective. The federal government has an opportunity to
lead in this area by supporting evaluation of the feasibility, cost,
and effectiveness of promising monitoring practices. NLRC's past
support for development and evaluation of public guardian programs and
state guardianship regulations has demonstrated AoA's interest in
guardianship. Moreover, support for pilot projects aimed at protecting
the welfare of older adults--a key objective of NLRC--positions AoA to
devote some of its resources to evaluating promising monitoring
practices.
Recommendations for Executive Action:
To help state courts fulfill their role in appointing guardians for
incapacitated adults, we recommend the Commissioner of SSA take
whatever measures necessary to allow it to disclose certain
information about SSA beneficiaries and fiduciaries to state courts,
upon request, including proposing legislative changes needed to allow
it to do so.
To help state courts more effectively monitor guardianships, we
recommend that the Secretary of HHS direct AoA to consider supporting
the development, implementation, and dissemination of a limited number
of pilot projects to evaluate the feasibility, cost, and effectiveness
of one or more generally accepted promising practices for improving
court monitoring of guardians.
Agency Comments:
We provided a draft of this report to HHS, SSA, and VA for comment.
Their responses can be found in Appendices I, II, and III. HHS
indicated that Section 420(a)(2) of the Older Americans Act (OAA), as
amended, gives the department the statutory authority to support the
type of pilot projects we recommend it consider.[Footnote 45] It also
noted that pilots incorporating elements of interface and
collaboration with state courts could be incorporated into future
grant design structures within its Model Approaches to Statewide Legal
Assistance Systems demonstration grant projects (Model Approaches).
Using Model Approaches to support such pilots would be consistent with
our recommendation. We encourage AoA to pursue incorporating pilots of
promising guardianship monitoring practices into its future grant
design structures for Model Approaches.
In its comments, SSA asserted that Privacy Act implications prevent
the agency from sharing information about beneficiaries and
fiduciaries with state courts without their written consent. According
to SSA, the only alternative, under the Act, to disclosing such
information without consent is a routine use statement. SSA believes
this is not an option, however, because sharing this information with
state courts does not appear to be compatible with the purpose for
which it was collected.
Aside from Privacy Act implications in this area, SSA cited other
reasons why it did not consider our recommendation viable.
Specifically, the agency indicated that disclosure of information to
state courts is outside its mission and, as a result, SSA would have
to charge state courts for providing this information because it
cannot use congressionally-appropriated funds for this purpose. SSA
also stated that the potential cost of developing and maintaining data
sharing agreements with every court that makes guardianship decisions
would be prohibitive.
While we recognize SSA's concerns, we believe these are issues the
agency may be able to address. For example, in response to SSA's
concern about the cost of developing a system for sharing its
information with state courts, our recommendation is intended to be
general enough to allow the agency to determine the most cost-
effective method for doing so. Also, we are not specifically
recommending that each court have access, similar to VA's, to an SSA
automated data system. Accordingly, data exchange agreements with
every relevant court may not be necessary.
Despite SSA's concerns, the potential benefits to incapacitated SSA
beneficiaries justify providing certain information about
beneficiaries and fiduciaries to state courts upon request on a case-
by-case basis. For example, a court's request for the identity of a
beneficiary's SSA fiduciary, if there is one, could provide a
potential candidate for that beneficiary's guardian when no other
candidates are available. Also, a court's request for information
about whether a potential guardian has ever served as an SSA
fiduciary, as well as information about that individual's performance
as a fiduciary, could be used to aid in determining that individual's
suitability, or unsuitability, to serve as a guardian. Moreover,
providing such information to a state court opens communication with a
court that could alert SSA to a beneficiary's potential incapacity and
need for an SSA fiduciary. It could also facilitate the appointment of
a single person to manage a beneficiary's affairs, a goal the National
Research Council recommended SSA pursue.
Consequently, we continue to believe that it is in the best interest
of incapacitated SSA beneficiaries for the agency to disclose certain
information about beneficiaries and fiduciaries to state courts, upon
request. Given SSA's position that the Privacy Act prevents the agency
from undertaking this important activity, we now recommend that it
take whatever measures are necessary to allow it to do so, including
proposing legislative changes.
HHS, SSA, and VA provided technical comments on our draft report,
which we incorporated as appropriate. VA also provided a description
of information sharing activities within its Fiduciary Program.
As agreed with your office, unless you publicly announce this report's
contents or authorize its release sooner, we will not distribute it
until 30 days from the date of issuance.
We are sending copies of this report to HHS, SSA, VA, relevant
congressional committees, and other interested parties. We will also
make copies available to others upon request. This report will be
available at no charge on GAO's Web site at [hyperlink,
http://www.gao.gov].
If you or your staff have any questions about this report, please
contact me at (202) 512-7215 or brownke@gao.gov. Contact points for
our Offices of Congressional Relations and Public Affairs can be found
on the last page of this report. Key contributors to this report are
listed in appendix IV.
Sincerely yours,
Signed by:
Kay E. Brown:
Director, Education, Workforce, and Income Security Issues:
[End of section]
Appendix I: Comments from the Department of Health and Human Services:
Department Of Health & Human Services:
Office Of The Secretary:
Assistant Secretary for Legislation:
Washington, DC 20201:
July 6, 2011:
Kay E. Brown, Director:
Education, Workforce and Income Security Issues:
U.S. Government Accountability Office:
441 G Street N.W.
Washington, DC 20548:
Dear Ms. Brown:
Attached are comments on the U.S. Government Accountability Office's
(GAO) draft report entitled, "Incapacitated Adults: Oversight of
Federal Fiduciaries and Court-Appointed Guardians Needs Improvement"
(GAO 11-678).
The Department appreciates the opportunity to review this report prior
to publication.
Sincerely,
Signed by:
Jim R. Esquea:
Assistant Secretary for Legislation:
Attachment:
[End of letter]
General Comments Of The Department Of Health And Human Services (HHS)
On The Government Accountability Office'S (GAO) Draft Report Entitled,
"Incapacitated Adults: Oversight Of Federal Fiduciaries And Court-
Appointed Guardians Needs Improvement" (GAO-11-678):
The Department appreciates the opportunity to review and comment on
this draft report.
We note GAO's recognition that the Administration on Aging (AoA) has
done substantial work in this area of critical importance to the
independence and financial security of seniors.
GAO Recommendation to HHS:
To help state courts more effectively monitor guardianships, we
recommend that the Secretary of I IRS direct the Administration on
Aging to consider supporting the development, implementation, and
dissemination of a limited number of pilot projects to evaluate the
feasibility, cost, and effectiveness of one or more generally accepted
promising practices for improving court monitoring of guardians.
AoA Response:
Statutory authority currently does exist for the creation of potential
pilot projects as described by GAO under Section 420 (a)(2) of the
Older Americans Act (OAA), which is intended to support demonstration
projects related to the delivery of legal assistance and elder rights
protections to older persons with social or economic needs. The Model
Approaches to Statewide Legal Assistance Systems (Model Approaches)
demonstration grant projects are intended to support the creation of
high quality and high impact legal service delivery systems that
effectively target scarce legal resources to older persons most in
need. Model Approaches have proven highly effective in enhancing the
delivery of legal service to seniors in the most need of assistance on
priority legal issues.
Existing Model Approaches demonstration project parameters may be
sufficiently broad in terms of their legal "systems building"
objectives so that elements of interface and collaboration with state
courts on the issue of guardianship monitoring could potentially be
incorporated into future grant design structures. AoA is also
positioned to sharpen focus through the National Legal Resource Center
(NLRC) on the provision of technical support and training to states on
guardianship monitoring issues and continues to explore data
collection options related to elder victims of guardianship abuse.
[End of section]
Appendix II: Comments from the Department of Veterans Affairs:
Department Of Veterans Affairs:
Washington DC 20420:
July 8, 2011:
Ms. Kay E. Brown:
Director, Education, Workforce, and Income Security Issues:
U.S. Government Accountability Office:
441 G Street, NW:
Washington, DC 20548:
Dear Ms. Brown:
The Department of Veterans Affairs (VA) has reviewed the Government
Accountability Office's (GAO) draft report, "incapacitated Adults:
Oversight of Federal Fiduciaries and Court-Appointed Guardians Needs
Improvement" (GAO-11-678) and is providing technical comments in the
enclosure.
VA appreciates the opportunity to comment on your draft report.
Sincerely,
Signed by:
John R. Gingrich:
Chief of Staff:
Enclosure:
[End of letter]
Department of Veterans Affairs (VA) Comments to Government
Accountability Office (GAO) Draft Report: Incapacitated Adults;
Oversight of Federal Fiduciaries and Court-Appointed Guardians Needs
Improvement (GA0-11-678):
Additional Comments:
In June 2011, VA formed a workgroup to identify areas for improving
collaboration between VA Medical Center (VAMC) social workers and
fiduciary program staff and to clarify roles and responsibilities in
cases of mutual concern and collaboration.
The Fiduciary Program provides oversight of VA benefits paid to
beneficiaries who are unable to manage their funds because of injury,
disease, or age-related infirmities. Social workers often serve as
case managers for Veterans determined to be at high risk, including
those with a fiduciary, guardian, and/or surrogate decision-maker.
Social workers coordinate services and care provided to the Veteran
and monitor high-risk Veterans for potential abuse and exploitation.
As routine practice, social workers develop an information sharing
relationship with the Fiduciary Program at the VA Regional Office (RO)
in their area. They consult with the RO if it appears a Veteran is
being financially exploited and questions exist on how to proceed.
Social workers notify the RO if a Veteran has a fiduciary who is not
providing for his or her needs. Social workers also notify the RO when
there are concerns that a Veteran is at risk and may be in need of an
evaluation for a fiduciary.
VA is also developing plans to improve communication as well as
conduct a nationwide training program on the mutual interests and
opportunities for enhancing collaborations and fine-tuning the role of
social workers. The target date for training is August 2011.
[End of section]
Appendix III: Comments from the Social Security Administration:
Social Security:
Office of the Commissioner:
Social Security Administration:
Baltimore, MD 21235-0001:
July 12, 2011:
Ms. Kay E. Brown:
Director, Education, Workforce, and Income Security Issues:
United States Government Accountability Office:
441 G. Street, NW:
Washington, D.C. 20548:
Dear Ms. Brown,
Thank you for the opportunity to review the draft report,
"Incapacitated Adults: Oversight of Federal Fiduciaries and Court-
Appointed Guardians Needs Improvement" (GAO-11-678). Our response is
enclosed.
If you have any questions, please contact me at (410) 965-0520. Your
staff may contact Frances Cord, Director, Audit Management and Liaison
Staff, at (410) 966-5787.
Sincerely,
Signed by:
Dean S. Landis:
Deputy Chief of Staff:
Enclosure:
[End of letter]
Response To Recommendation In The Government Accountability Office
(GAO) Draft Report "Incapacitated Adults: Oversight Of Federal
Fiduciaries And Court-Appointed Guardians Needs Improvement" GA0-11-
678:
Recommendation:
The Commissioner of the SSA should determine how, under applicable
laws and consistent with SSA's existing legal authority, the agency
might be permitted to disclose information about incapacitated
beneficiaries and their fiduciaries to State courts.
Response:
We disagree. We previously evaluated applicable laws to determine if
we may disclose this information to States. We assert, as we did in
response to your 2004 report, "Guardianships ”Collaborations Needed to
Protect Incapacitated Elderly People" (GAO-04-655), that privacy
implications prevent us from doing so.
We may only disclose information to State courts or other Federal
agencies in accordance with the Privacy Act, section 1106 of the
Social Security Act, and regulations at 20 C.F.R. Part 401. The
Privacy Act governs how Federal agencies collect, use, maintain, and
disclose personal information, and it forbids disclosure of personal
information about a living person without the written consent of the
individual or someone who can consent on the individual's behalf.
Without consent, the only relevant Privacy Act exception is the
routine use exception 5 U.S.C. § 552a(b)(3).
To create a routine use, we must determine if the requested disclosure
is compatible with the purpose for which we collect the information.
In this case, it does not appear the proposed disclosure is
compatible. We collect information about representative payees solely
to evaluate whether they are fit to manage Social Security benefits.
State-appointed legal guardians, on the other hand, may have broader
legal authority to care for personal property and other interests.
There is no clear indication of how any SSA disclosure of beneficiary
or representative payee information to a State court is compatible
with SSA's collection of the information to assist beneficiaries in
managing their benefits or payments.
There are other reasons why your recommendation is not viable.
Specifically:
* Disclosure of the information to State courts is outside our
mission. We use appropriated funds from Congress to monitor
representative payees' management of Social Security payments to our
beneficiaries. We cannot use appropriated funds to provide this
information to State courts. If we disclosed the requested information
to States, we would have to charge them for our services.
* It is not cost effective. In your September 2010 Report,
"Guardianships: Cases of Financial Exploitation, Neglect and Abuse of
Seniors" (GAO-10-1046), you noted "...court-appointed guardians also
serve as federal representative payees in 1 percent of cases at
SSA..." It would be prohibitively expensive to develop and maintain data
sharing arrangements with every court that makes guardianship
decisions, especially in light of the small population of cases at
issue.
[End of section]
Appendix IV: GAO Contact and Staff Acknowledgments:
GAO Contact:
Kay E. Brown, (202) 512-7215, brownke@gao.gov:
Staff Acknowledgments:
Clarita A. Mrena was the Assistant Director on this study. Divya Bali
and Benjamin P. Pfeiffer contributed substantially to all aspects of
the work. Luann M. Moy and Walter K. Vance provided technical
assistance. Kathleen L. Van Gelder assisted with report writing.
Jessica A. Botsford and Sheila R. McCoy provided legal counsel.
[End of section]
Footnotes:
[1] In this report, we use the term "fiduciary" to refer to both SSA
representative payees and VA fiduciaries.
[2] In this report, we use the term "guardian" to refer to both
guardians and conservators.
[3] 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 a fiduciary to people it has
determined are incapable of managing or directing the management of
benefit payments. VA uses the term "incompetent" instead of
incapacitated. Most states use the term "incapacitated," but others
use "incompetent," "mentally incompetent," "disabled," or "mentally
disabled."
[4] For earlier reports on these topics, see GAO, Guardianships:
Collaboration Needed to Protect Incapacitated Elderly People,
[hyperlink, http://www.gao.gov/products/GAO-04-655] (Washington, D.C.:
July 13, 2004), and Guardianships: Little Progress in Ensuring
Protection for Incapacitated Elderly People, [hyperlink,
http://www.gao.gov/products/GAO-06-1086T] (Washington, D.C.: Sept. 7,
2006).
[5] GAO, Guardianships: Cases of Financial Exploitation, Neglect, and
Abuse of Seniors, [hyperlink, http://www.gao.gov/products/GAO-10-1046]
(Washington, D.C.: Sept. 30, 2010).
[6] SSA administers the Old-Age and Survivors Insurance (OASI) and
Disability Insurance (DI) cash benefit programs. OASI provides monthly
payments to eligible retired workers and their families and to
survivors of deceased workers. DI provides monthly payments to
eligible workers with disabilities and their families. SSA also
administers the Supplemental Security Income program (SSI), a federal
cash assistance program that guarantees a minimum level of income for
eligible needy aged, blind, and disabled individuals.
[7] VA administers its disability compensation and pension programs.
Disability compensation is paid monthly to eligible veterans with
service-connected injuries or diseases. VA pension benefits are paid
monthly to eligible wartime veterans who have limited or no income and
are over 65, or are permanently and totally disabled.
[8] Only state or local government agencies or community-based
nonprofit social service agencies bonded and licensed by the state (if
licensing is available in the state), that have SSA's prior approval,
can receive a fee for serving as an incapacitated beneficiary's
fiduciary.
[9] Court-appointed guardians receiving fees for guardianship services
that VA selects as fiduciaries may not collect additional VA fiduciary
fees.
[10] Professional guardians typically serve as guardian for more than
one client at a time. They can work independently or be a part of an
organization such as a private guardianship agency or a financial
institution.
[11] 42 U.S.C. § 3001 et seq.
[12] Pub. L. No. 111-148, tit. VI, subtit. H, §§ 6701 - 6703, 124
Stat. 119, 782-804 (2010) (to be codified at 42 U.S.C. §§ 1320b-25,
1395i-3a, and 1397j - 1397m-5).
[13] The OAA defines elder justice as "efforts to prevent, detect,
treat, intervene in, and respond to elder abuse, neglect, and
exploitation and to protect older individuals with diminished capacity
while maximizing their autonomy; and the recognition of the [older]
individual's rights, including the right to be free of abuse, neglect,
and exploitation." 42 U.S.C. § 3002(17).
[14] 42 U.S.C. §§ 405(j)(2)(C)(i)(IV) and 1383(a)(2)(B)(iii)(IV).
[15] 42 U.S.C. § 405(j)(2)(C)(ii) and 1383(a)(2)(B)(iv).
[16] 42 U.S.C § 405(j)(2)(B)(ii).
[17] 38 U.S.C. § 5510(5)-(7).
[18] See GAO, VA's Fiduciary Program: Improved Compliance and Policies
Could Better Safeguard Veterans' Benefits, GAO-10-241 (Washington,
D.C.: February 26, 2010).
[19] The AARP Public Policy Institute was created to inform and
stimulate public debate on the issues related to aging and to promote
development of sound, creative policies to address the common need for
economic security, health care, and quality of life.
[20] 42 U.S.C. §§ 405(j)(3)(A) and 1383(a)(2)(C).
[21] 42 U.S.C. §§ 405(j)(6)(A) and 1383(a)(2)(G)(i).
[22] 38 U.S.C. § 5508.
[23] [hyperlink, http://www.gao.gov/products/GAO-10-241]. Unscheduled
reviews may also be conducted as needed. During on-site reviews, staff
are required to examine the financial records of multiple
beneficiaries concurrently and examine any questionable expenses.
[24] VA requires financial reports from fiduciaries who oversee
beneficiary estates of $10,000 or more, who are also the beneficiary's
guardian appointed by a court, who are authorized to collect a fee,
who oversee estates of beneficiaries who receive the maximum
disability payment possible, who are appointed temporarily, or in
other situations. Exceptions to this requirement can include
fiduciaries who are spouses and chief officers of federal institutions.
[25] AARP Public Policy Institute. Guarding the Guardians: Promising
Practices for Court Monitoring. Washington, D.C.: 2007.
[26] The ABA Commission on Law and Aging was created to strengthen and
secure the legal rights, dignity, autonomy, quality of life, and
quality of care of elders. It carries out this mission through
research, policy development, technical assistance, advocacy,
education, and training.
[27] See "Monitoring Following Guardianship Proceedings (as of
December 31st, 2009)" at [hyperlink,
http://www.americanbar.org/groups/law_aging/resources/guardianship_law_p
ractice.html].
[28] AARP, Guarding the Guardians.
[29] This AARP study consisted of site visits to four courts with what
AARP considered to be exemplary monitoring practices, telephone
interviews with two courts testing new technologies for monitoring,
and a symposium of guardianship experts, including judges, court
monitoring staff, elder law and mental health attorneys, and
representatives from the National Center for State Courts, the
Conference of State Court Administrators, and the National
Guardianship Association.
[30] We surveyed California superior courts in each of California's 58
counties, circuit courts in each of Florida's 67 counties, and courts
in 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.
[31] [hyperlink, http://www.gao.gov/products/GAO-04-655].
[32] The Office of Personnel Management administers the fiduciary
program for recipients of federal retirement benefits. The Department
of Defense administers the fiduciary program for military retirement
recipients.
[33] The Privacy Act applies to personal information under the control
of an agency that is maintained in a system of records, which is any
group of personal information that is retrieved by the name of the
individual or other identifier. Under the Privacy Act, each agency
that maintains a system of records must publish a notice describing
that system and include a statement of routine uses of those records,
including the categories of the uses and the purpose of use. A routine
use of a system of records must be compatible with the purpose for
which the record was collected. 5 U.S.C. § 552a.
[34] In addition, neither SSA nor VA is required to notify fiduciary
programs administered by other federal agencies, such as the Office of
Personnel Management.
[35] National Research Council, Improving the Social Security
Representative Payee Program: Serving Beneficiaries and Minimizing
Misuse, Committee on Social Security Representative Payees, Division
of Behavioral and Social Sciences and Education. (Washington, D.C.:
The National Academies Press, 2007).
[36] 20 C.F.R. §§ 404.2021 and 416.621.
[37] The National Academy of Elder Law Attorneys is a professional
association of attorneys dedicated to improving the quality of legal
services provided to seniors and people with special needs.
[38] The National Guardianship Network is a group of 10 national
organizations created to promote effective guardianship law and
practice. It includes AARP; the ABA Commission on Law and Aging; the
ABA Section of Real Property, Trust and Estate Law; the Alzheimer's
Association; the American College of Trust and Estate Counsel; the
Center for Guardianship Certification; the National Academy of Elder
Law Attorneys; the National Center for State Courts; the National
College of Probate Judges; and the National Guardianship Association.
[39] NLRC partners are the American Bar Association Commission on Law
and Aging, the Center for Elder Rights Advocacy, the Center for Social
Gerontology, the National Consumer Law Center, and the National Senior
Citizens Law Center.
[40] See [hyperlink, http://www.gao.gov/products/GAO-04-655,12], 30-32.
[41] The Uniform Law Commission is a nonprofit unincorporated
association composed of commissions on uniform laws from the states,
the District of Columbia, the Commonwealth of Puerto Rico, and the
U.S. Virgin Islands. It was created to improve state laws by drafting
uniform state laws on subjects where uniformity is desirable and
practicable.
[42] According to the Uniform Law Commission, as of June 15, 2011, 28
states and the District of Columbia have passed the Uniform Adult
Guardianship and Protective Proceedings Jurisdiction Act.
[43] The Center for Social Gerontology is a nonprofit research,
training, and social policy organization dedicated to promoting the
individual autonomy of older persons and advancing their well-being in
society.
[44] National Consumer Law Center. Nuts and Bolts on Guardianship as
Last Resort: The Basics on When to File and How to Maximize Autonomy.
[45] 42 U.S.C. § 3022i (a)(2).
[End of section]
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