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96–739 PDF 2004

S. HRG. 108–728

FORUM ON PROTECTING OLDER AMERICANS

UNDER GUARDIANSHIP: WHO IS WATCHING THE

GUARDIAN?

FORUM

BEFORE THE

SPECIAL COMMITTEE ON AGING 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

WASHINGTON, DC

JULY 22, 2004

Serial No. 108–41

Printed for the use of the Special Committee on Aging

(

SPECIAL COMMITTEE ON AGING 

LARRY CRAIG, Idaho, Chairman 

RICHARD SHELBY, Alabama 

SUSAN COLLINS, Maine 

MIKE ENZI, Wyoming 

GORDON SMITH, Oregon 

JAMES M. TALENT, Missouri 

PETER G. FITZGERALD, Illinois 

ORRIN G. HATCH, Utah 

ELIZABETH DOLE, North Carolina 

TED STEVENS, Alaska 

RICK SANTORUM, Pennsylvania 

JOHN B. BREAUX, Louisiana, Ranking 

Member 

HARRY REID, Nevada 

HERB KOHL, Wisconsin 

JAMES M. JEFFORDS, Vermont 

RUSSELL D. FEINGOLD, Wisconsin 

RON WYDEN, Oregon 

BLANCHE L. LINCOLN, Arkansas 

EVAN BAYH, Indiana 

THOMAS R. CARPER, Delaware 

DEBBIE STABENOW, Michigan 

LUPE WISSEL, Staff Director 

MICHELLE EASTON, Ranking Member Staff Director 

(II) 

C O N T E N T S 

Page 

Opening Statement of Senator Larry E. Craig ..................................................... 1

PANEL I 

Barbara Bovbjerg, director, Education, Workforce, and Income Security 

Issues, U.S. Government Accountability Office ................................................. 2

Frank Johns, attorney at law, Booth, Harrington and Johns, National Academy of Elder Attorneys, Greensboro, NC ........................................................... 8

Nancy Coleman, director, American Bar Association, Commission on Law 

and Aging, Washington, DC ................................................................................ 21

Debbie Armstrong, deputy secretary, New Mexico Aging and Long Term 

Services Department, Sante Fe, NM .................................................................. 34

Robert L. Aldridge, elder law attorney, Boise, ID ................................................. 35

APPENDIX

Statement from Edwin L. Walker, deputy assistant secretary for Policy and 

Programs, Administration on Aging ................................................................... 57

Information submitted on behalf of the Michigan Protection and Advocacy 

Services, Inc. ......................................................................................................... 63

(III) 

(1)

FORUM ON PROTECTING OLDER AMERICANS 

UNDER GUARDIANSHIP: WHO IS WATCHING 

THE GUARDIAN? 

THURSDAY, JULY 22, 2004 

U.S. SENATE, 

SPECIAL COMMITTEE ON AGING, 

Washington, DC. 

The committee met, pursuant to notice, at 2:04 p.m., in room 

SD–628, Dirksen Senate Office Building, Hon. Larry E. Craig presiding. 

Present: Senator Craig. 

OPENING STATEMENT OF SENATOR LARRY E. CRAIG, 

CHAIRMAN 

The CHAIRMAN. Well, ladies and gentlemen, why do we not get 

started here? Good afternoon and welcome to the Senate Special 

Committee on Aging Forum on Guardianship Issues. The room will 

probably fill up with a few more folks. We are in the last day before the recess by all indications of our leadership at this moment, 

and that, in part, will impact attendance. 

But please view this as a full room, because the record we build 

here today and your participation in building that record is going 

to be extremely important, because what we have brought together 

are a group of expert panelists, and I must tell you that I am 

pleased that among our distinguished experts are some familiar 

faces to the Aging Committee: Barbara, Barbara Bovbjerg, from the 

Government Accounting Office, who has agreed to moderate the 

forum this afternoon is here along with others, and she will introduce our panelists, and Barbara, we thank you for doing so. 

Today’s forum will focus on the monitoring and accountability of 

court-appointed guardians responsible for the care and financial 

management of this country’s most vulnerable elderly. Hundreds of 

thousands of older Americans live under guardianship in the 

United States. Those numbers will dramatically increase as our 

aging population continues to grow at a prolific and unprecedented 

rate. 

In February 2003, the Aging Committee held a hearing exploring 

the misuse of guardianships imposed over the elderly. Over the 

course of the hearing, I heard several horror stories of elderly 

Americans put into abusive guardianship situations. At that time, 

I called the Government Accounting Office to conduct a study on 

how Federal funds are managed by court-appointed guardians. 

2

The GAO has since compiled significant information on guardianship programs nationwide with special focus on three key States. 

They found that while all States have laws requiring courts to 

oversee guardianships, the implementation of those laws are varied 

and sporadic. In fact, most courts surveyed by the GAO did not 

even track the number of active guardianships or the number of elderly under guardianships. 

Another finding is the lack of collaboration between State courts 

and Federal agencies. While both are responsible for assisting some 

of the same older adults, they communicate little. There is no system in place for Federal agencies and courts to notify each other 

in situations where financial exploitation is detected. The failure to 

coordinate between agencies can leave this Nation’s most vulnerable senior citizens without any protection at a time when they 

need it most. 

In light of these concerns, it is my desire that the panel today 

examine three key issues: first, a review of State laws that provide 

for oversight in guardianship; second, identification of State courts 

that have exemplary training and monitoring practices, and third, 

how State courts and Federal representative payee programs serving the same individuals can better coordinate their oversight efforts. 

I will now turn the proceedings over to Barbara. Barbara is the 

acting director of education, workforce and income security issues 

at the U.S. Government Accounting Office and is the author of a 

recent reporting examining the collaboration needed to protect incapacitated elderly people. Her background and expertise are impressive, as is that of each of our panelists. 

Once again, I want to thank all of you for being with us this 

afternoon as we face the important issue of the most vulnerable 

amongst us, and I look forward to today’s discussion and the record 

that you are about to build. 

So, Barbara, I will turn this forum over to you and to the panelists who have gathered with you. Thank you very much. 

STATEMENT OF BARBARA BOVBJERG, DIRECTOR, EDUCA

TION, WORKFORCE, AND INCOME SECURITY ISSUES, U.S. 

GOVERNMENT ACCOUNTABILITY OFFICE 

Ms. BOVBJERG. Thank you very much, Mr. Chairman. 

I did have remarks that I wanted to make at the beginning, and 

then I thought I would introduce each of our panelists; I thought 

what I would do today as facilitator I know that they too have remarks that they would like to make. I will have a few general 

questions for them, and, because this is a forum and a little different from a hearing; we will invite the audience. I will invite the 

audience to ask questions after we have been through a couple of 

general ones. 

I am really pleased to be here to discuss guardianships for the 

elderly, and I really appreciate the Senate Committee on Aging’s 

request for this kind of work and support of our report by holding 

this forum. As people age, they become incapable of caring for 

themselves in some cases, and although family members can often 

provide assistance, sometimes, a State court will need to appoint 

a guardian to act on the incapacitated person’s behalf. 

3

There have been instances, however, in which guardians have 

taken advantage of the elderly people they were supposed to protect. Such cases of abuse and neglect are the very things that 

prompted questions about the oversight of these programs. Indeed, 

that is why GAO did this work. Chairman Craig and the Senate 

Special Committee on Aging asked us to study guardianships for 

the elderly, and the results of our work are being released in a report today. 

It covers the three areas that Senator Craig mentioned as our 

focus today: 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. 

To do this work, we reviewed guardianship statutes nationwide 

and conducted surveys of courts in the three States with the largest populations of elderly: California, New York and Florida. We 

also visited courts in eight States, and we interviewed Federal officials responsible for representative payee programs. 

First, let me talk about State courts and guardians. All 50 States 

and the District of Columbia have laws requiring courts to oversee 

guardianships, and at a minimum, most State laws require guardians to submit a periodic report to the court, usually at least once 

annually, although not always, regarding the well being of the incapacitated person. Many State 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 California and Florida 

courts responding to our survey require guardians to submit time 

and expense records to support petitions for compensation, but both 

States also have courts that do not require these reports. 

We also found that States are generally 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 elderly person needing 

to move from one State to another or when their guardian needs 

to transact business on their behalf in another State, for example, 

a property transfer. 

In addition, data on guardianships are scarce. Most courts we 

surveyed did not even 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 a third of 

the responding courts did this sort of tracking, and only a few could 

provide the number of guardianships for elderly people, the subpopulation of the larger group of guardianships. 

Let me now turn briefly to what we call the exemplary programs. 

We sought particular courts that people in the guardianship community considered especially effective. 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 their training. 

On the oversight side, the court in New Hampshire recruits volunteers, primarily retired senior citizens, to visit incapacitated peoVerDate 0ct 09 2002 11:31 Dec 21, 2004 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 H:\DOCS\96739.TXT SAGING1 PsN: JOYCE
4

ple, their guardians and care providers at least annually and to 

submit a report of their findings to court officials. Exemplary 

courts in Florida and California also have permanent staff that investigate allegations of fraud, abuse and 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. 

Finally, I would like to turn to the role of the Federal Government in guardianship. Federal agencies administering benefit programs appoint representative payees to manage the benefits of incapacitated individuals. 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 

they know that a representative payee has already been assigned. 

In our interviews of Federal and court officials, we found that although courts and Federal agencies are responsible for protecting 

many of the same incapacitated elderly people, they generally work 

together only sporadically, on a case-by-case basis. Courts and Federal agencies do not 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 a 

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 fact, in charge of 

their benefit payments. 

To conclude, the number of elderly Americans is expected to grow 

dramatically in the future. The need for guardianship arrangements seems surely to rise in response, and ensuring that such arrangements are safe and effective will become increasingly important. 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. That is why 

we recommend establishing an interagency study group, including 

representatives from State courts and all the Federal programs 

with representative payees to consider how better to share information among these entities. 

We also concluded that guardianship arrangements would benefit 

from the collection and analysis of consistent national data on 

numbers and types of arrangements and the incidence of problems. 

Thus, we have recommended that the Department of Health and 

Human Services work with national guardianship organizations 

and States to develop cost-effective approaches to compiling such 

information. With these measures, guardianship programs could 

better serve incapacitated individuals and would be better prepared 

for the growth in demand that we anticipate in the future. 

This concludes my remarks. I am really looking forward to hearing what our other panelists have to say. They are people whom 

I know have contributed in various ways to the debate in guardianship, and I would like to take the opportunity to introduce them 

now. I want to say that the panelists sitting around me all have 

considerable expertise in a number of fields. Their expertise is not 

limited to guardianship, but when I talk about their qualifications, 

I am going to limit myself to that piece, so I want you to know that 

5

they are even more accomplished than what you will hear about 

today. 

We will start with Frank Johns, sitting to my left. Frank Johns 

is an attorney. He is a partner in the firm of Booth, Harrington 

and Johns in North Carolina, and he concentrates on elder law. He 

is a fellow and past president of the National Academy of Elder 

Law Attorneys and a charter board member and president-elect of 

the National Guardianship Association, an association that we consulted in the course of our work. 

Nancy Coleman is here as the director of the American Bar Association Commission on Law and Aging. She was appointed to the 

National Legislative Council of the AARP in 2002. Notably to our 

topic today, in 1995–96, she also served as chair of the Federal Advisory Committee for the Social Security Administration to Review 

the Representative Payee Program. I am looking forward to some 

of her reactions to some of the things we have said about that program. She has also served on the board of directors of several national aging organizations. 

Deborah Armstrong has come to join us from New Mexico. She 

is an attorney, and she is also currently the deputy secretary of the 

New Mexico Aging and Long-Term Care Department, formerly the 

State Agency on Aging, and prior to becoming deputy secretary was 

director of the Elder Rights and Health Advocacy division. 

I am looking forward to hearing all of your comments. I hope Mr. 

Aldridge will be joining us shortly; perhaps we could start with 

you, Mr. Johns. 

[The prepared statement of Barbara Bovberg follows:]

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STATEMENT OF FRANK JOHNS, ATTORNEY AT LAW, BOOTH, 

HARRINGTON & JOHNS, NATIONAL ACADEMY OF ELDER

ATTORNEYS, GREENSBORO, NC 

Mr. JOHNS. Thank you. To participate in a forum such as this is 

an honor in and of itself. 

While Barbara described our credentials, there are as many 

other experts with whom we always collaborate who make it possible to share the kind of depth and anecdotal information about 

guardianship that is brought forward in a forum like this one. I 

also want to thank Chairman Craig, who, in his wisdom and foresight did something more than I thought would be done after the 

hearings that were conducted in February 2003. 

In academic writings that I have published over the years, one 

thing I have mentioned is that between 1960 and the middle 

1990’s, there were no less than 30 major studies done with recommendations that carried very little weight. There were numerous hearings that had been held that ended with nothing going further than the transcript of the hearings themselves. 

With some degree of tenacity and a conviction that supports his 

interest in this area, Senator Craig, on behalf of this Committee, 

sought out and received the involvement of the GAO, and for a 

year now, a study has been ongoing, the likes of which is, quite 

frankly, somewhat of a landmark in this field. The potential of this 

study is that it will target ways by which coalitions of funding 

sources and agency authority will join with groups like the National Guardianship Network to truly deliver some of the required 

needs that we see coming in the future. 

On that premise, then, my remarks both oral and in writing that 

are shared with you are requested to be made part of the transcript, and I further request authorization to extend those remarks 

where appropriate when given the opportunity after the hearing is 

over. 

In terms of a target, I was not sure exactly what would be produced in the study at the time I did my writing, although I did 

have the benefit of being interviewed by representatives of the 

GAO who shared with me how they went about the process of their 

investigation, what States they targeted and where they focused 

their inquiry. With that benefit, I primarily focused my writing on 

what is written in the GAO study. 

Basically, it is what we do not know that is going to hurt the 

people we serve. What we do not know is developed in two primary 

areas: what we do not know about those who are guardians serving 

wards and incapacitated elders; and what we do not know about 

the statistics in each and every State and in the Federal agencies 

that are involved with guardianship in terms of the numbers of alleged incompetent adults, the numbers of incapacitated adults, 

merged with the problem that there are incapacitated minors who 

are also part of the mix in terms of the guardianship analysis. 

What we do not know is honestly what will hurt us in the years 

to come. Actually, the truth of the matter is, what we don’t know 

is hurting the people we serve now as we conduct this forum. The 

terribly difficult stories, like the Orshansky case that was presented in February 2003, is representative of hundreds of anecdotal 

commentaries and written investigations like the one published in 

9

the Detroit Free Press in 2000 and the one that was published by 

the Washington Post. 

There are many other investigations going on where, in a specific 

case or a few cases, guardians are found to have committed literal 

criminal acts of stealing from the estates of wards and even going 

so far as to commit criminal acts of abuse and physically harming 

or neglecting the very persons they are charged to protect. Couple 

that with the fact that our public agencies are going to be saddled 

with a significant number of vulnerable adults who have no network in the years to come and to whom they can only look or the 

agencies they can only look to are the Department of Social Services or Mental Health or the agency that the State Government 

will decide is the literal dumping ground of our impoverished, vulnerable elders who need a protection much better than that. 

But the problem is we do not have a clue on what the numbers 

are. The report will share with you that they find the numbers are 

increasing, and there is some data to reflect that, for example in 

the largest county in North Carolina, Mecklenburg County, where 

Charlotte, North Carolina is, the judge of guardianships there, 

Martha Kern, will share with you that in the last 3 years alone, 

their docket numbers have mushroomed to three and four times 

what they were for guardianships. She knows nothing more than 

that fact, and that fact was garnered by an assistant clerk going 

through the stacks and counting files, because there is no data 

being collected, no systemwide process by which the numbers of 

guardianships are being examined, much less what is happening in 

the guardianships themselves. 

So, if you will, Barbara, my focus is on the fact that we do not 

have good data, and it is just critical that we find a source by 

which funds could be made available where we integrate a task 

force that is not just driven from a Federal perspective, but it involves each and every State with a commitment to design a model 

by which data can be collected in these States, so that on that foundation, we can give better discourse on what is to come and the 

kind of dollars we are going to need to serve them. 

The other piece of that is this: the laws are written for monitoring and accountability of guardians. The truth of the fact, as I 

write in my remarks, is truly a matter of virtual reality. What you 

see on the book, you think is real, but when you go out to find it, 

you find it is not real at all. There is literally little if any monitoring and accountability, especially for guardianship of the person. 

We are pretty good at making people account for the money. What 

concerns many of us is the quality of the life of all of our people, 

whether they are poor or not, needs to be accounted for in delivering that which is needed to protect their interests. 

With that, I will close, and I will be glad to help in answering 

any questions. Thank you. 

[The prepared statement of Mr. Johns follows:]

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Ms. BOVBJERG. Thank you very much, sir. 

Ms. Coleman. 

STATEMENT OF NANCY COLEMAN, DIRECTOR, AMERICAN BAR 

ASSOCIATION COMMISSION ON LAW AND AGING, WASHINGTON, DC 

Ms. COLEMAN. Thank you. 

I want to look at—I have a written statement which will be incorporated, but I want to look at several of the questions that were 

raised here and see if we can move forward with them. I think that 

the General Accounting Office, whatever you are called now——

Ms. BOVBJERG. Government Accountability Office. 

Ms. COLEMAN. Government Accountability Office; thank you. OK; 

I am going to just call you the GAO. 

Ms. BOVBJERG. It is easier. 

Ms. COLEMAN. I think that the study is really quite good, and I 

agree with Frank that it pushes the envelope, and I think that we 

needed that. I do not disagree that the issue of data is important 

and, in fact, over 3 years ago, in some work that the ABA Commission had done, we had posited that you needed to have, in the same 

way that you do in the field of child abuse prevention and in a 

number of other areas, a taxonomy and a data set in order to be 

able to collect this information. 

The only State that collects data on a routine basis is Ohio, and 

they have it for all of their jurisdictions. Now, why would Ohio be 

able to do it and no other State? That is the question. I guess this 

comes back to the question that Frank posed: where is the incentive? 

Now, it turns out, if one looks at child abuse reporting, before 20 

years ago, there was no systemic reporting there either, and it was 

because of some Federal funds and some Federal requirements and 

some sort of battering over the head that we now have that. What 

makes us think that we cannot use those similar vehicles to get at 

this same issue? 

The second area that I think is important to look at is the monitoring. I think that Frank hit it on the head in the sense that while 

it may exist in law, and there are the four jurisdictions that you 

looked at that went beyond what the State law is, there are several 

reasons why the current processes are flawed. One, the reporting 

is poor; two, the review and investigation is not there on all parts; 

three, the funding is not there, so that even though you have a 

good statute, you have no funding for it; four, the training, and 

even in those States where you have mandatory training, the training can be weak; and fifth, you have the lack of relationships to the 

community organizations and the community links. So I think that 

those are the issues troubling monitoring. 

I want to look at coordination now. It is absolutely true that the 

Social Security representative payee program leads the way in the 

number of people that are in it: 7 million people. Not all of those, 

of course, are old people. I must say that in the work that we did 

in the mid-nineties, there are still some major issues that they are 

not addressing, that is, Social Security is not addressing. The issue 

of how people are chosen to be representative payees still remains 

22

a problem, and there have been a number of IG reports on that 

issue. 

We had a grant, that is, the ABA Commission on Law and Aging, 

had a grant that was a joint grant from the State Justice Institute 

and Social Security to look at that coordination. In that report, we 

stated something similar to what is in the GAO report, which 

states very specifically you need to have coordination. You need to 

share information. You need to share when you have people who 

are bad representative payees. In fact, the ABA, as a whole, adopted that provision, which overcame the privacy and confidentiality 

provision, in a recommendation that we took before the ABA House 

of Delegates 3 years ago. So it is there. It is clear. Social Security 

is balking at it, and they are the only ones. 

Now, the third area, and I think it is important. We took a look 

recently at some of the VA representative payee fiduciary relationships, and in those, you still have some problems about ownership, 

about appointment, and about monitoring. I do not think that monitoring of guardianships, monitoring of Social Security representative payees, and monitoring of VA fiduciaries, are all in the same 

ball park. There is poor management of oversight in all three. We 

have dealt with a little of that in the provisions of the recent legislation. 

Now, the fourth area is the interstate question. The National 

College of Probate Judges has a model that is now incorporated 

into their model standards and is part of the ABA model standards 

on transfers of guardianships. It does not deal with the question 

of original jurisdiction, which is something that still needs to be 

looked at. However, in some work that I was fortunate enough to 

participate in, there is an international agreement—of course, the 

United States has not signed this agreement—at the Hague. It is 

called the Convention on International Protection of Adults. 

What is important about this to this particular issue is that if, 

in fact, a guardianship or a power of attorney is recognized in one 

jurisdiction, it can be transported to a second jurisdiction. That is, 

the papers that said Frank Johns is the guardian for Charlie 

Sabatino, and Charlie Sabatino has some property in Virginia, but 

this was given in North Carolina, Frank can walk into Virginia and 

use that. So the international way of looking at this, while the U.S. 

has not adopted it, is a manner in which we, in the United States, 

can begin to look at it. 

Finally, and the last point that I will make, is that while there 

is still an issue that exists around the use of powers of attorney, 

and while all of us here can go out and establish who we want to 

have as our powers of attorney either for finances or for health 

care, there is a Treasury rule that exists that says that a person 

who is not able to handle their own Social Security funds must 

have a representative payee. That flies in the nature of somebody 

having the ability to name who they want to have or to have a joint 

bank account or a direct deposit. 

Now, while the numbers of older people and probably the numbers of disabled people are increasing, the numbers of people represented as having representative payees have been stable for the 

last 15 years. The only way that I can see how this is true is that 

people are using direct deposit of Social Security checks into their 

23

bank accounts, as Social Security would have us do it, and negotiating from those joint accounts or direct deposit accounts or using 

powers of attorney. 

In fact, to this end, I went in and asked my friendly banker—

our office happens to be above a bank—and I asked the branch 

manager, ‘‘What do you do, and how do you find out when somebody is no longer able to negotiate their own Social Security check? 

Do you report this to Social Security so that a representative payee 

would be appointed?’’ She said she did not know anything about 

that law. 

So there is this conflict that exists that if, in fact, I am an attorney, as Frank is, or as others might be, who is counseling older 

people and I say, ‘‘Okay, you need to do this planning in advance 

so that you will not have to have a guardian or a representative 

payee,’’ the conflict exists because the Federal law around representative payees and the Treasury rule says that that person 

must have a representative payee. 

But I think that those are the kinds of things that the interagency proposal that was made in the GAO report can deal with, 

and I think that these are the kinds of questions to look at. 

Thanks, Barbara. 

[The prepared statement of Ms. Coleman follows:]

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Ms. BOVBJERG. Thank you very much. 

Ms. Armstrong. 

STATEMENT OF DEBBIE ARMSTRONG, DEPUTY SECRETARY, 

NEW MEXICO AGING AND LONG TERM SERVICES DEPARTMENT, SANTA FE, NM 

Ms. ARMSTRONG. Thank you. First of all, I am very honored to 

be here. I was a last-minute substitute, so I do not have a written 

statement. I will provide that later. But I am going to talk a little 

bit about the experience we have with guardianship in New Mexico. I think what I have to say is that it follows right along with 

the findings in the GAO. 

A couple of things that we have done: first of all, along the same 

lines as has been discussed, there is no accounting, no data or information about who all has guardianships or how many, unless it 

is a public guardian; we have some information about that, because 

we are funding them. But otherwise, there is only a requirement 

to do an annual report. There is no requirement in the law that 

that report get reviewed by anyone. So, it is completely dependent 

upon the judge as to whether they have the interest, the time, the 

staff to do that, and to the most extent, I do not believe it is done 

in hardly any court. 

So, there really is no accountability, nor do we have a mechanism 

to assess fines or so forth that other States may have for failing 

to file that report or to perform the duties as expected. But a couple of things that we did in New Mexico, and with good intentions, 

still are not working well, and that is the creation of a public 

guardianship program. We did it in the late eighties, and—the 

startup funding to create a separate nonprofit entity to do this 

work was provided through legislative appropriation. 

The budget that goes toward public guardianship has grown in the late eighties from about $250,000 to a little over $2 million. We 

have about 380 wards of public guardians and about 200 that have 

treatment guardianship. Most of those public guardian situations 

go to one contracted entity, that one that was started, and there 

are lots of allegations against that entity about fraud, about exploitation, about inappropriate placement of their wards, and it is because they are essentially a monopoly, and it has become very difficult to control. 

We have tried moving contract oversight, actually, from the AG’s 

office, who was not acting on a lot of the issues as advocates 

thought that they ought to. Contract oversight was moved to an advocacy organization, the Developmentally Disabled Planning Council. 

There are still problems with the representative payee situation. 

In New Mexico, we have separate provisions to do a guardianship 

or a conservatorship. In the public guardian situations, the courts 

determine that the ward does not have the money to pay for a 

guardian. That is why they need a public guardian. So the court 

assumes that there is no need to appoint a conservator. So, the 

public guardian, by default, often becomes the representative payee 

and essentially the conservator of whatever little income there 

might be; and there are reports of potential exploitation, even in 

that limited circumstance. 

35

Among the nonpublic guardians, issues still arise with coordination between the representative payee and the guardian where 

even if the guardianship has been removed, that person is still the 

representative payee. So, there are still issues going on. 

There is also no requirement for training. So, other than in the 

public guardianship context, with contract requirement that they 

utilize appropriately-trained staff, there is not a required training 

in statute. In setting up guardianships, we have tried to do some 

things to protect, to the greatest extent possible, the appropriateness of guardianship by having both a guardian ad litem representing the proposed ward and a court-appointed visitor doing an 

independent assessment of the need for guardianship. 

We still find, and I am speaking a lot from my experience with 

the ombudsman program and their dealing with residents of nursing facilities who may have guardianship, that some guardianships 

seem inappropriate. We have fought the guardian on a number of 

occasions from inappropriately moving a resident. We had an instance last year where the publicly-funded guardian moved, 

against the wishes of the resident, who was very well-established 

in a facility and happy there, moved to one closer to where the 

guardianship office was, which meant completely leaving the community and any friends and support systems that were there. 

So, as you have reported in the GAO study, we find the same 

things happening in New Mexico. Thank you. 

Ms. BOVBJERG. Thank you very much. 

I want to welcome Robert Aldridge. I was introducing everyone 

before he arrived, and I held off introducing him so he could hear 

the nice things I said about him. Robert Aldridge is an attorney in 

Idaho. His practice is focused on estate planning, taxation, probate 

and elder law. He is past chairman and current legislative chairman of the Taxation, Probate and Trust Section of the Idaho State 

Bar, and he represents the bar on the Idaho Work Force Investment Board and is vice president of the board and the one-stop 

chairman for the Work Force Investment Board. 

He is also the long-term chairman of Retirement Jobs of Idaho, 

which provides nonprofit training to allow the elderly to reenter 

the workforce. He serves on the Legislative Oversight Committee, 

created by the Idaho Legislature, that is currently studying the 

guardianship and conservatorship system of Idaho by providing expertise and technical assistance to the Governor, the legislature 

and the supreme court. 

He brings a wealth of perspective on this issue, and we look forward to his comments. 

STATEMENT OF ROBERT L. ALDRIDGE, ELDER LAW 

ATTORNEY, BOISE, ID 

Mr. ALDRIDGE. Thank you. When I was here in February 2003 

with Mr. Johns, we were primarily talking then about the horrors 

of the system on the appointment side, what was happening on the 

intake. What, really, I have tried to focus on in my written remarks is now what happens after appointment? How do you monitor? How do you control? That is somewhat counterintuitively still 

involved in the preappointment process in many cases. By doing 

36

certain things at the front end, you eliminate a lot of the problems 

at the back end. 

So, we have tried to create in Idaho a very detailed statutory requirement for the initial filings, for the contents of those. Our bar 

section has published a set of forms books in terms of guardianship 

and similar types of proceedings that is extremely detailed, has 

charts, flows and so forth that could lead literally anyone through 

that process. 

We also have worked hard to maintain the independence of the 

guardian ad litem, the court visitor, from the process, to make sure 

they are not in some way controlled by the petitioning parties and 

also to make sure that the guardian ad litem is a continuation 

after the appointment. The guardian ad litem acts on as almost, in 

a sense, a second look acting on behalf of the person throughout 

the entire process. 

Also, we do a lot of front end requirements for reporting through 

the court visitor and so forth to establish initially what are the assets. We require written plans from the proposed conservator/proposed guardian so that in advance, we know what is supposed to 

be happening. This gives a basis, then, for the monitoring system 

to know whether things are being followed. 

We also recently adopted a statute based, in part, on some of the 

ABA statistics and other statistics showing that in many cases, felons were a disproportionate percentage of those who were abusing, 

either physically or financially or otherwise, the elderly. A requirement that a court could appoint a felon as a conservator or guardian but only after finding by clear and convincing evidence that it 

was in the best interests of a ward, et cetera. So, at the front end, 

you have to very clearly keep track of how the system sets up its 

initiation. 

After the appointment has been made, a series of things: No. 1, 

we try to have very strong volunteer committees on our bar section 

with AARP and et cetera. We have outside entities that help in the 

monitoring process and in training. We also have created permanent staff attached to the court but paid through State funds that 

actually monitors every single guardianship, every single conservatorship, looks at all the status reports, reads all of the financial reports; goes out and, with the guardian, visits or sometimes 

without the guardian, visits. 

We also have created very detailed requirements for the reports 

themselves so that somebody just doesn’t turn in a check ledger 

and say that’s my report. Those are extremely detailed, and they 

are in the form books online and so forth. We have also given the 

court the ability to, on its own initiative, if no one else acts, to impose all sorts of fines, to make people disgorge funds, to undo what 

has been done. 

We have also done a great deal of work on training. It is mandatory that the people who act as guardians who especially, if not 

professionals in that area, have to have training. So we have created videos; we have extensive handbooks that we have created for 

each of those offices; and those are mandated to be gone through, 

and especially with some help from AARP, we have been able to 

do that in some detail. 

37

The thing that I think has worked best, and it has been referenced several times, is the tracking of cases. We started at the 

top at the Idaho Supreme Court and completely rebuilt what we 

call the ISTAR system, which is the court case tracking system. We 

can now tell you exactly how many cases of guardianship and conservatorship there are; what kind they are; which ones are developmentally disabled, which ones are minors, which ones are adults; 

which ones are active, which ones are closed; which ones have reports, which ones do not, et cetera, and that has tremendously 

helped in terms of monitoring these. We are not having to have, 

as was referenced, clerks wander down and dig through dusty 

paper files to find out which cases are even there for the things 

that have been filed. 

We have also tried to do information sharing. We have coordinated with the VA, which has independent requirements for those 

who are in the VA system and tried to get uniform methods of reporting and sharing of information with them. We also share with 

the equivalent of your office with the Ombudsman for the Elderly 

and the Commission on Aging, with health and welfare, all of the 

abuse statistics we can and try to get those into the system as 

quickly as possible. 

So, our emphasis has been trying to make the job easy, so that 

it does not require a tremendous amount of money or staff to do; 

that it takes the efforts spread over a number of different areas at 

as little cost as possible. 

I would like to echo what has been said about the problems with 

Social Security. We continuously have cases in which there is an 

appointment of a conservator. They are then made the representative payee. The next day, the person who has been abusing the elderly fiscally walks in, changes it back to themselves and off goes 

the money again. It is a huge problem. 

We have gotten together with the VA and solved that problem. 

We have not solved it with Social Security. I think that is one of 

the main things we still see as a problem, because for many of our 

elderly under conservatorship, that is the money. That is all they 

have is Social Security. When that disappears, now, we see increased societal costs in Medicaid, Medicare and others. 

[The prepared statement of Mr. Aldridge follows:]

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Ms. BOVBJERG. Thank you very much. 

I wanted to start off by asking some general questions. One of 

the general things I wanted to observe is that what we see both 

in terms of collection and information of data and on monitoring is 

you have, at the Federal Government level, issues within the Federal programs, the benefit programs that appoint representative 

payees. If there had not been such monitoring issues at the Social 

Security Administration, we would not have seen the legislation 

that became law last January, the Social Security Protection Act, 

which took on the management of the representative payee program. 

This is also true in terms of sharing information. GAO can make 

recommendations to Federal agencies about how they should interact with each other, share information and coordinate. But one of 

the things I wanted to ask this panel, since I am really the only 

one from the Federal level participating, is how best can the Federal Government support an interaction between the States and 

the Federal Government, and also among the States? 

Frequently, at GAO, when we are thinking about these things, 

we run into unfunded mandate issues or run into just simply the 

diversity of the States, which make us not want to be prescriptive 

in any particular way. Because you each have somewhat different 

perspectives on this, I wondered if each of you could take that on 

a little bit. 

Mr. ALDRIDGE. I am not shy on that issue. 

What I think we need initially is the ability to have funding for 

unusual, innovative programs. In Idaho, we have been able to do 

that more easily because we are small, and we can do that largely 

through volunteers, but trying to get an individual program 

through the legislature is very difficult. 

So, we need first of all funding to get the program in place. When 

it is in place, we need to be able to show statistics and data, and 

that is where that needs to be shared across State boundaries; not 

just within us, but we know what wheels have already been invented. So, we can use that to get eventual legislative funding. 

We also need data bases on who has abused the elderly. Right 

now, when somebody comes in and petitions, it can be very difficult 

to find out whether, that person, we passed the nice felon statute. 

We may not be able to get that information, especially if it involves 

abuse of the elderly. So, all those central areas need to be there 

so that we can track people as they go across the system. 

We also—we created from our end, at least, some pretty good 

tracking of transfers of cases, but I think that could be better coordinated in some ways through the Federal level, so that you have 

some central way to find out where people are, and if you transfer, 

how do you get courts together? How do you get them to discuss 

where is the proper jurisdiction? 

Ms. COLEMAN. Can I ask—I mean, it seems to me that there are 

both questions of transfer, and then, there is the question of where 

is the proper venue for this to take place, and who is then going 

to monitor it? 

In the transfer question, the issue is if both ward and guardian 

or conservator are moving to another State, or you have a second 

possibility, and that is for those who live along borders i.e., you 

45

know, along a State line. If you are going to place somebody from 

Ohio in a Kentucky nursing home, how is it that you have the authority to then make decisions about that person, given that these 

are mostly State issues? 

OK; I agree with you that those are the kinds of questions that 

need to be addressed. They are partially addressed in the National 

College of Probate Judges model. However, it does not deal with 

original jurisdiction, so you go back to the Orshansky case or some 

of the other infamous cases. 

The Hague answered that question by presence and choice of 

law. Now, according to the Hague Convention, Mrs. Orshansky is 

in the district at the time that that original petition was made, 

then, they ought to look at it there. However, there were some 

other issues. If Ms. Orshansky was in New York, then, it should 

have taken place in New York, and that is who should hold the 

ground as to where it is. 

Because Ms. Orshansky had stated her choice of who she wanted 

to make decisions about where she wanted to be, the court should 

have looked at that. Again, I think those are issues. 

I think that the major question that Barbara poses is one of asking how should the Federal Government agencies interact with 

State agencies, and where does the flow of information occur? I 

think that is a much harder question. In the case of where you 

have, as you have in Idaho, figured out a way to work with the VA 

in their appointments, we need to have better ways of working 

with Social Security, because it is the gorilla. It has 7 million people who have representative payees. Nobody else has that. 

The question here is, and there are some civil liberties issues, 

whether or not you can maintain lists of people in a State who may 

have abused or been convicted of abuse or, as in the case in Pennsylvania recently, the State said you cannot. 

So, let us look at the kinds of questions of what information you 

can keep and what you cannot keep and whether or not there is 

a choice for somebody to have been rehabilitated. 

Mr. JOHNS. Single shots at any given problem may focus on the 

answer and the narrow focus. However, I think, Barbara, your request was for what the broader view would dictate in terms of how 

larger bodies of those who can study what is wrong and deal with 

the answers and come up with models by which implementation 

might occur; I think that is where you were focusing. 

Let me suggest two things: first, out of the Wingspan Conference 

of 2001 came a series of 75 recommendations, and I must acknowledge Charlie Sabatino as being one of the co-chairs of that conference with me. What we found was that with those recommendations, we are at a loss to see how we might implement them. So 

what we have focused on is the organization of the National Guardianship Network. 

What we did was to bring together several significant national 

players, organizations like the ABA Commission on Law and 

Aging, the National College of Probate Judges, and two of the 

judges who are renowned, including current sitting president Irv 

Condon, who will be sharing remarks at this forum, are participants in this network; including the National Guardianship AssoVerDate 0ct 09 2002 11:31 Dec 21, 2004 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6633 H:\DOCS\96739.TXT SAGING1 PsN: JOYCE
46

ciation, people that you interviewed, and my organization, the National Academy of Elder Law Attorneys. 

The focus of that network is to come together periodically to ask, 

‘‘Have we done anything?’’ If we have done something, what is it? 

Is there a source from which we might be given some monies, like 

a Federal foundation that would then open up additional task 

forces beyond just a Federal agency design. 

What we are realizing is this is a difficult way to deal with it, 

because you are almost in a vacuum. When that network comes together and talks, the organizations that are represented there are 

saying, ‘‘Well, we cannot keep it moving in the organizations in 

which we are currently functioning. We need something else, something more.’’

We have identified that something else, and it is a conference 

that is set for this November in Colorado Springs, where representatives of the GAO will present your study. The point is in this conference there is going to be a Wingspan Implementation Session 

where invited delegates will specifically design a framework by 

which we go to each and every State and say, ‘‘Here is the basis 

by which change might occur in your State. Here are the people 

that we have worked with in your State at this conference who are 

going to help us show you how to take these steps.’’

Part of what the GAO could do is help design, or at least look 

at, ways by which we talk to Federal agencies that you are saying 

need to be talking among themselves. We believe they need to be 

talking with us as well. 

Ms. BOVBJERG. They think that, too. 

Mr. JOHNS. Yes, and we have extended that to asking the chief 

justices of the supreme courts of all the States to send representatives as participants to this conference, because we know that the 

hierarchy and the leadership of these judiciaries are the ones who 

look at how they are going to gather data, how they are going to 

deal with the issues. 

If we can at least make them aware of the fact that this is a crisis in the offing, that in the next few years, they are going to have 

to deal with it one way or the other, then, they may well come to 

the table with us and accept our models and begin implementation. 

Ms. BOVBJERG. I just wanted to add that GAO did recommend 

that Social Security convene an interagency study group that 

would include representatives from States and from courts. We 

thought the sharing among Federal agencies was the easy part, 

frankly, but it is being done in bits and pieces. However, we 

thought that the real question was how federal agencies could 

share data back and forth with the courts. 

I do not really want to make SSA’s argument, because they disagreed with us, as you will see in this report, but they cited a couple of things as being barriers to this. The main one was the Privacy Act. They felt that they do not have a routine use agreement 

under the Privacy Act, and we believe that this is why they should 

convene an interagency task force. 

I think one of the concerns that I know that Social Security will 

have is that there are 50 States and the District of Columbia, and 

there are all of these courts, and they will feel that they have to 

have separate agreements with each. So for them it will be a comVerDate 0ct 09 2002 11:31 Dec 21, 2004 Jkt 000000 PO 00000 Frm 00050 Fmt 6633 Sfmt 6633 H:\DOCS\96739.TXT SAGING1 PsN: JOYCE
47

plicated and potentially time-consuming thing to do. It is the same 

process that they use to get death information, for example, from 

States. They have to have special agreements with each one. 

But we think that perhaps there is future work to be done on 

how SSA and states reach these agreements and how, perhaps, to 

think about them, differently. But certainly, they need to take this 

on in the area of guardianship. As you were talking, I was thinking 

about the diversity of States, and also the courts within each State. 

Perhaps Ms. Armstrong could talk about this a little bit as it relates to New Mexico. The State says ‘‘These are our standards for 

guardianship, and, we are not seeing courts not meeting those 

standards.’’ GAO did not perform a compliance review.’’

But we did see quite a range in the way that state standards are 

implemented. So, I wonder even if you could get to a point where 

there is agreement upon the kinds of data to collect, and how to 

share the data back and forth. How would this really work on the 

ground? Do you have a feeling for that? 

Ms. ARMSTRONG. You are right that in New Mexico, like many 

other States, it is very different in every court, because it is largely 

dependent on the judge. I do not have any great ideas. I think that 

as a State that is struggling, we would like to see models be developed that can be adopted by courts rather than each one doing 

their own thing. Recognizing that it is a national crisis would be 

persuasive in regard to adopting those models. 

Dealing with the issues with representative payees and Social 

Security and their interaction and the jurisdictional issues you 

raised are definitely issues in New Mexico. We have border communities where that is an issue. So I do not have a great answer, but 

recognizing that it is a national problem and developing models 

that can be replicated and give courts something to work with 

would be very helpful. 

Ms. COLEMAN. Barbara, I want to add a piece of history to this. 

In 1987, the Associated Press did an unprecedented set of investigations that resulted in the fall of 1987, in a week in September, 

that all of the AP reporters did pieces on guardianship. That was 

used to push and push and push a whole lot of other investigative 

and legislative changes that we have seen over the last 25 years. 

I believe—I am going to give you credit—no, no, I truly mean this 

right now, that the fact that you have taken your study and targeted it at what I believe are the five most important issues will, 

in fact, raise that visibility in a way that I am hopeful, given that 

we have pending the Elder Justice Act; given that Frank’s program 

has invited, lo and behold, not under his guidance, all of the chief 

justices or their representatives, because it is the chief justices, if 

they agree to it, who can order States to put into place common 

definitions and basic data collection. 

I believe that if we looked at the computerization of courts—you 

know, yesterday, we talked about, the press talked about, the computerization of medical records, we will be able to more or less, 

given the impetus of this report and this study, push people in that 

direction. So, I think that is the way that we can look to move forward and push on these kinds of issues. 

Now, again, I think that when the ABA did its study on the privacy question that Social Security disagreed with us on, and that 

48

it still disagree with you on today—I brought in two experts on privacy; we had a paper written on that, which I will share with you. 

We really did come to the conclusion that it could be overcome, and 

it is overcome in a variety of ways. 

You know, Social Security shares its data base with a lot of people. So, it is not as though it cannot do it with courts. It is not as 

though it does do it with a lot of other folks. I think it is 

overcomeable, and I think it is an issue which they have to be 

pressed on, and your report will press them publicly. 

Mr. JOHNS. Barbara, if I might, I believe that Nancy is exactly 

right on the point she makes. I think, too, however, that we are 

actually talking about something that may be two or three steps 

beyond where we are. All I would like to do is just talk to them 

generally. All I would like to hear is that some groups met for discussion. We are not talking about sharing the data yet. Let us just 

talk about what the problems are. Let us find a forum to which 

these agencies are invited; at which our courts are represented. 

I must ask that you add one other identified group to those who 

are going to be talking together. You said the State agencies, and 

you mentioned the State agencies, the Federal agencies and the 

State courts, but there are major consumer group organizations, including the National Academy, including the ABA, including NGA 

that should be at the forum. 

Ms. BOVBJERG. I did not mean to leave them out. 

Mr. JOHNS. Many groups in the private sector would love to be 

in the room just to talk about it. I think what we have missed is 

that significant pieces of empirical data have been collected, and 

reported, the last one being the one out of the Center for Social 

Gerontology in 1994, which was 2 years late in developing the actual data so that it could be published. 

So really, we are probably—this report is only 12 to 14 years 

after real data has been looked at it all. The beauty of the report 

that you have done is that it is current, and it may produce dialog. 

I think the great benefit that could come from today is that we 

identify those who would come together and identify a place and 

then say, ‘‘Will you please come and set an agenda by which we 

begin talking about what we need to do together.’’

Mr. ALDRIDGE. I would like to say amen to that. The only way 

we were able to build things was to create very, very broad groups 

to come before them. For example, right now, we have currently a 

grant fund proposal that we are working through Senator Craig’s 

office to try to fund some innovative ways of doing training. But 

that training is going to involve everything from AARP to Kin Care 

Coalitions to National Academy of Law Representatives, whoever 

we can get to be in that. We try to pull in hospital associations, 

nursing homes, whoever might be there. The broader that coalition 

is, the broader that base, the more likely you are going to get 

things done. 

Ms. BOVBJERG. Let me ask you about burden, because one of the 

things we heard, and I think you brought this up, Robert, earlier 

on is the states and courts would do more monitoring if they had 

the funds. I was wondering about the data collection and the data 

sharing as well, because you have all been, and I am gratified to 

hear this, very positive about our recommendations addressing 

49

these things. But I wonder what might this represent at the point 

of collection? Is that something we have to worry about? I am 

thinking about implementation. 

Mr. JOHNS. Yes, but even then, to say that it is too great a burden, you are putting too much paperwork on us; there is no way 

that we are going to be able to go out there and do this, there is 

a great way to excuse yourself from beginning at all. So you are 

right. It is a good question to ask: well, how much of a burden do 

you think it might be? 

Let me answer in one way. When North Carolina, revised its 

statute in 1987, the reformers were up against the guardianship 

judges who were really trying to impede reform. In the end, we maneuvered a way that created a very simple, one-page data gathering statement that the guardian of a person must file. The truth 

of the matter is that the burden of that component of data gathering is not great at all. 

The fact that none of the administrative offices cared to follow 

through on collecting the data from the guardians is part a cultural, part historical explanation of what guardianship is—partially 

a political quagmire. 

Ms. COLEMAN. Barbara, you know, one of the questions which Social Security often asks about is the purpose of the representative 

payee program. The purpose of the representative payee program 

in 1939, when it was created, was a way to pay benefits. To a large 

extent, the representative payee program still is that. Yet, it has 

become and is traded upon as sort of a stepchild or less-intrusive 

guardianship. 

Now, if you are listening to what Frank just said, you have the 

sense that people do not want to change. They do not want to accept the responsibility in the court system in North Carolina that 

once you’ve made somebody a guardian, you do not need to worry 

about it anymore. So you have the same sort of lack of responsibility both in the Social Security representative payee program and 

in many of the guardianship programs where the courts say that 

they already put somebody in that place, so they do not have to 

worry about it any more. 

So let us look at it together and ask the questions: Which States 

currently do not know how many people are under a guardianship? 

How many are alive? How many are dead? How many are actually 

in institutions? How many are living in the community? If you cannot answer those questions, what is it that would allow people to 

be able to answer those questions fairly quickly? 

Well, you would if, in fact, you had a computerized data base. In 

Idaho, you know where those people are. You must be able to account for them. So was it burdensome, Robert? 

Mr. ALDRIDGE. No, it was not burdensome at all. We did a series 

of things. One, again, we tried to build a coalition so that the burden was shared. Information came from a lot of different areas, and 

so, we enlisted the nursing homes and assisted livings and so forth 

to be a part of the reporting system. We also went out to the financial institutions and, No. 1, gave them statutory definitions of potential fiscal abuse and then immunity if they reported it, very 

much along the lines of child abuse reporting. 

50

We also did the actual training. We went through the State. I 

went all over the State with a group of people, and we trained 

bank tellers and vice-presidents how to recognize fiscal abuse, 

where to report it. So you can enlist a lot of players to come in. 

If you do that, it is not burdensome at all. Again, the resistance 

to change is hard to overcome, but if you tell them we will do 90 

percent of it, and we will put your 10 percent at the end, a lot of 

times, you can get it done. 

Mr. JOHNS. An anecdotal comment, Barbara. In the Baltimore 

County area, there is a significant advocate named Joan 

O’Sullivan. Joan is a professor of law in that community and has 

been a passionate advocate for individuals caught in guardianship 

processes. Joan, on her own, with a professor colleague of hers, 

knew that there was very little data about guardianships in Baltimore County. They designed a fairly simple survey, and on their 

own, with students they had, went out and surveyed all of the community and looked at all of the guardianship files in that county, 

and the compilation of it and then some of her conclusions drawn 

from it was not a significant difficult task to do. 

Compare that with the fact that I took that survey with her 

blessing. I went to North Carolina to the Office of Administrative 

Courts, explaining that I would go find some funding help from a 

private source if the AOC would just give me the blessing to go to 

the major metropolitan counties in North Carolina to do this survey to gather the data. 

The response from the administrator of the court system was 

that our computer system was such that there was no way we 

could integrate the data you gather, and it was so low a priority 

that they did not care to try. That was the literal answer that was 

given, and we are still without the information. So it is not that 

it is a burden, but Nancy certainly hits it correctly: based on history and based on the fact that inertia is hard to come by, you cannot get them moving in any direction at all. They would rather sit 

on what they have, until the firestorms and horror stories mount 

in such a way that the AP Gulag stories of late 1987 erupts again 

to show that too many of our elders are being harmed. 

The numbers are going to be so great—in fact, they may already 

be that great—that we are really losing time, and that is the painful part of this. 

Ms. BOVBJERG. This is a frustration; it brings me to the frustration of this project. We started off when Senator Craig’s staff came 

to us and said, ‘‘What about these reports surfacing about abuse, 

especially after hearing last year? We are hearing about Ms. 

Orshansky’s story for example.’’

So, GAO was planning to look at the incidence and the frequency 

of abuse in guardianships and discovered that we could not even 

find out how many guardianships there were, let alone the frequency of abuse, which we were hoping was low. We were hoping 

that these were horrifying but anecdotal stories. So we ended up 

recommending that, to manage an effective guardianship program, 

even though it is not one program but many programs nationwide, 

you really need basic information. 

But in looking at the monitoring side, where we looked at what 

we called the exemplary programs? Many of you told us these were 

51

the programs that do some of the things that you folks have been 

talking today, getting people out there to actually see the person 

under guardianship and evaluate their condition. 

I guess the question I wanted to pose to the panel is how prevalent do you think abuse under guardianship is? That is one thing. 

Is there something that could be done, is there something at the 

Federal level that we could do to reduce and prevent abuse? Perhaps, I don’t know, it is a legislative solution, or perhaps it is 

something that we can try to get agencies to think about, but is 

there something that we could do that would help address what we 

think is the problem, even if we do not know how big it is? 

Mr. JOHNS. Yes. 

Ms. BOVBJERG. I should stop with these long questions. 

Mr. JOHNS. To follow up with the yes answer, the explanation is 

that the probability is that because you get to go see how the exemplary programs are run, and then, when you see them, you see that 

there are few, if any, reports of abuse, it leads to the logical conclusion that the horror stories are few and far between. 

Ms. BOVBJERG. Or perhaps prevented from becoming horror stories. 

Mr. JOHNS. In those communities. But those are a very small 

percentage of the total number of communities in which you are 

going to find the data—we believe that is going to be difficult. Let 

me say on behalf of the National Guardianship Association that to 

paint guardians generally as the bad guys is really a simplistic 

sound bite that is unfair and improperly fired in terms of a round. 

Many, many guardians educate themselves, and through the 

NGA, they conduct education and training, the likes of which we 

really have not seen before. That is really new. However, there are 

the unscrupulous profiteers and those who would be predators, and 

we really have no way to be sure who they are, and that is truly 

the problem. 

Mr. ALDRIDGE. We went through a process that identified that 

for us. When we started all this in 1989, I undertook it as a project 

of our bar section working with the local probate court. We started 

with the situation where there was absolutely no monitoring whatsoever. We had no way to identify anything, et cetera. So we started in that condition. We then built a system, found out who was 

there, et cetera, and now had a data base of cases. We were able 

to go directly to those and see how many of those did have abuse. 

Now, abuse is difficult, because there is a tendency to look only 

at the guardian, but there may be other abuses: the petitioning attorney or others may be charging exorbitant fees or acting inappropriately, et cetera. It is a broad spectrum. But nonetheless, in those 

cases, there was a very high percentage that had some form of 

abuse in them. 

Now that we have the system in place, the amount of abuse is 

extremely small. So, it tells at least to me in our system, it said 

to me that yes, there is a lot of abuse out there, and it can be easily 

prevented with the right techniques. 

Mr. JOHNS. The one other answer I had, if I might, is this. For 

example, in North Carolina, when there is a guardianship, and 

there is very little money, and there is only a Social Security check, 

the clerks have the discretion to disregard any accounting for that 

52

Social Security check and the funds and how they are spent for 

that ward. They just say, ‘‘Well, what we are going to do is just 

give you Letters of Guardianship the Person, for which we ask little or no information about.’’

The guardian then goes to get the Social Security check as representative payee. Now, Social Security may think because we have 

anointed the person with Letters of Guardianship, there is some 

oversight somewhere. But the truth of the matter is that the 

guardian is getting that check, and there is no accountability. 

Now, in fairness to North Carolina’s view of it, the more experienced judges will control that expense to that family, dragging it 

through a process that requires accounting and then some form of 

audit just to see to it that they get that check is so burdensome 

that we believe that for these people who, No. 1, are vulnerable, 

and No. 2, are of such modest means that that is about all they 

get, we felt it was easiest to just give it to the person standing as 

representative payee, because the Federal Government is watching 

them. 

Ms. BOVBJERG. I would say on the representative payee program 

that generally, the Social Security Administration program is 

watching the big players—the representative payees, many of them 

nursing homes, that have many wards—and that it reviews their 

use of the funds regularly. You are right about the single ones. 

Just so everyone here knows, the SSA IG is embarking on a study 

sampling the single representative payees and taking a look at 

what conditions are there, which may be, as far as I know, really 

the first time something like that has been been done. But there 

is a lot of concern, I know, as they go out and do this that they 

will be sending investigators out to descend on a family who is acting as the representative payee for a disabled child or that will 

frighten people unnecessarily and make them do unnecessary paperwork. 

So they are really trying to balance the need for better information against burdening individuals. They are struggling with it, but 

they are just getting started. 

I wondered if we should open up for any questions that anyone 

in the audience might have. I know we are doing everything miked 

for the record, and so, if anyone does have a question, I would invite you to come over here to the podium where we have a mike 

that you could ask the panelists. You do not have to, but I thought 

because this is a forum, perhaps we should open it up to audience 

participation. 

Do you have a question? 

Ms. COLEMAN. Perhaps while people are thinking of questions let 

me just comment on the issue that I think is a cross-issue. Social 

Security asks a person who is a representative payee to send in a 

report annually and to say how the money that the person received 

was spent. But it does not ask it in a way that says, ‘‘I as the representative payee, spent $250 on clothes and $650 on food’’ or that 

the representative payee had anything in their back pocket to substantiate that. They ask for percentages. 

So it does not even know, nor does it look back to see whether 

or not the reporting happens. This is the crossover issue: when you 

have a guardian and a representative payee, you have one agency 

53

telling the other agency that the other one is watching, and nobody 

is watching. I think that the issue still remains even with those triennial look-sees that Social Security does of the institutional and, 

now, large payees. I think that there is still the potential for a 

whole lot of abuse. 

There is double-dealing, according to Social Security. One of the 

representative payees that we looked at in 1995, 1996, charged a 

fee. They legitimately could charge a fee. But they also charged a 

fee because they were out of state. In order for the beneficiary to 

get a check, they had to make a long-distance phone call, have a 

check sent to a rural post office box, pay for the Federal Express, 

and then pay for the check cashing. 

Now, how much money do you think they lost from their benefit 

check paying those service charges. What kind of protection was 

that for the beneficiary? So you have just got to look more at that 

or an agency that charges itself for services. 

Mr. ALDRIDGE. One other thing we have not talked about that we 

have tried to enlist as another player is the criminal investigation 

side. We are in the midst of setting our abuse of the elderly to include being a misdemeanor up to $1,000, but a felony for anything 

above that or which involves physical abuse, even if they are acting 

as conservator, guardian, trustee, power of attorney, whatever. 

Then, we are setting a method to train police officers how to investigate that, because right now, they do not know how. They know 

how to investigate physical abuse, but they do not know fiscal. 

So, I think that is something where we can list some players, because I think right now, most people who are representative payees, et cetera, just are not afraid. They are not worried about what 

is going to happen to them from Social Security or from the court 

systems. But if they know that regardless of whether those people 

are satisfied, there is potentially a police officer out there waiting 

to put handcuffs on them if they have made off with even a dollar 

on and a felony if it is over $1,000, you may see more compliance. 

Ms. BOVBJERG. Well, let me ask the two of you who are in the 

trenches in the States: What about the VA? My understanding is 

that VA has a field examination requirement where they send folks 

out to see the person who is the beneficiary and to talk to the financial fiduciary. Do you think that they are achieving better results, that VA is acting to prevent and deter abuse by doing that? 

Do they have a better record than SSA? 

Ms. ARMSTRONG. Yes; I am not sure I know the detail how it 

works in New Mexico. What we have seen is that the VA system, 

is separate, and they do their guardianships, and I think, when the 

VA budget gets crunched there is less and less monitoring of the 

guardianships and less involvement just because of a budgetary 

issue. 

Mr. JOHNS. They have made it so complicated in North Carolina, 

where they have absolutely insisted on a separate statutory design 

for a veteran guardianship process that everybody runs away from 

them, because when you are caught up in their process, you cannot 

even get through the dialing problem of tracking somebody down. 

You will never speak to a human being in the VA. If they do actually go out and check, we have never seen them, and we have done 

literally hundreds and hundreds of VA cases over the last 26 years, 

54

and talk about making something much more difficult for the consumers when you are trying to do something which will protect 

their interests, the VA is doing that. 

Mr. ALDRIDGE. We have kind of gone the opposite way in Idaho. 

Kim Tisch and I are on a first-name basis, and we routinely split 

up duties. Very often, they are heading out to someplace, and so, 

we will tag into that and get the information from them, or they 

know that we are in the middle of a guardianship, and we are 

going to be getting info, and so, we feed that back to them. They 

have been very cooperative. 

Now, that may be the function of a small State compared to a 

large one, where the numbers are more manageable, but it has 

been the direct opposite where we are, and it has been a very profitable alliance. 

Ms. COLEMAN. Last month, the veterans benefits committee on 

the House side had a hearing to look at similar legislation to the 

Social Security Protection Act. The VA itself objected and said it 

does not have problems in that regard. It does not have fiduciary 

problems. Yet a year ago, the VA IG said, ‘‘In fact, it does have 

problems of financial abuse.‘‘ So again, you are asking one part of 

the VA versus another part of the VA, and I think representative 

Susan Davis from San Diego who has sponsored some legislation 

on that. 

Ms. BOVBJERG. It also sounds like from what Frank is saying and 

what you are saying, Robert, that it may also be based on relationships that have been formed between a particular State and the 

particular region of the Federal agency, which is kind of discouraging too, I guess. 

Mr. ALDRIDGE. Well, another thing, too, that I think that any solutions we come up with have to recognize is that there is a huge 

disparity between the urban side and the rural side. I am on the 

Work Source Board for Idaho. Technically, our entire State for Federal Work Source is rural, including our capital city. It is deemed 

to be rural. We have entire counties that are bigger than a number 

of States and have less than 5,000 people in them. 

The solutions to work there are very different than when you 

have, you know, the downtown boroughs of New York City, and I 

think that any ultimate solution that comes up would have to take 

that into effect. 

Ms. BOVBJERG. Well, we have talked a lot about what GAO recommended, which I am very gratified by, being from GAO. We’ve 

talked about data collection and about the need for better coordination across States, coordination between States and the Federal 

Government, and within Federal agencies. What other reforms 

should we be thinking about at the Federal level? I recognize that 

guardianship is not a Federal program, but the Federal Government still has an interest; certainly has pieces of programs that 

intersect but with guardianship but, in fact, as you say, Nancy, 

representative payees are not guardians. What other reforms 

should we think about? We have the ear of the Senate Aging Committee today. 

Mr. JOHNS. I have one suggestion, and it has been made before. 

It comes from a published decision in 1999 in a case that I cite in 

a footnote of my testimony titled Rudow v. State Medical Services 

55

Commissioner in the State of Connecticut. What the case addressed 

was if you are going to advocate the due process interests of someone who has no money, then, how are you going to find appropriate 

representative counsel to advocate those interests? 

What they realized was that on issues of quality of care within 

nursing home environments where Medicaid patients were housed, 

and they were also the wards of guardianships, but they were eligible for Medicaid, therefore, they, by definition, had little or no 

money; and the lawyers asserted that as a due process mandate, 

that Medicaid funding that came out to the facility must carve out 

monies sufficient for legal counsel to advocate the due process interests of the ward not just in terms of the adjudication of capacity 

but also in terms of monitoring and advocating the interests of 

those individuals under the guardianship throughout the process of 

the guardianship. 

I would suggest that part of those Medicaid dollars be set aside 

for due process and advocacy interests of those who have no way 

to advocate their interests on their own. 

Mr. ALDRIDGE. Absolutely. Our major problem in our State is 

people whom we know are being wronged, and there is no way to 

get that into court. There are simply no dollars to pay for it. We 

do as much pro bono work as we can, but there are limits. You can 

only do so much. If that were a formalized program, then, that 

would be a tremendous help. Again, that reforms the system. When 

the people who are out there know that that is in place, then, they 

change. They take it into effect. 

Mr. JOHNS. The impact, Barbara, I know that you can sense that 

the fiscal impact would be a tremendous hurdle that we would 

have to overcome, because all of the health care interests’ lobbies 

would realize that that would be a carve-out of dollars that they 

are supposed to get in the end. So unless you are going to say to 

them, ‘‘Well, we are not going to hurt the reimbursement basis on 

which you receive your Medicaid dollars. You have got to then 

show in your analysis fiscally that there is some increase in budgetary funding that is going to cap that out.’’

Ms. COLEMAN. I cannot tell you exactly, but we did review all of 

the State Medicaid plans, and if, in fact, it exists in the State Medicaid plan that you can pay for guardianship services, then, the 

guardian can be paid for. So it exists although I cannot pull the 

number of states off the top of my head. 

Mr. JOHNS. Well, it was in Connecticut, because that was the 

basis on which they could litigate the case. 

Ms. COLEMAN. I am just saying that we looked at a number of 

other States to be able to look at that. 

Again, I would go back to the example that I used earlier, about 

child abuse reporting. It was the incentive that the Feds used to 

get States to do reporting across the board on child abuse, you 

know, using common definitions; now, States fought it, but they 

would have lost their foster care money. 

I grant you, I can go back and say, ‘‘OK, Nancy, you know as well 

as I do that the Keys Amendment sanction to make sure that board 

and care facilities in 1976 were in compliance with those five 

standards did not work. It is still there in Medicaid in the assisted 

living waiver programs. It still does not work.’’ On the other hand, 

56

there may be some other things to think about, because we do not 

have Title 20. 

Ms. BOVBJERG. What do you think from the State perspective, 

Debbie? 

Ms. ARMSTRONG. I think to see the initiatives that were talked 

about would be wonderful. I think it would be well-received. I am 

particularly intrigued with the thought of the Medicaid involvement, not just from a funding perspective, but I think that would 

contribute to the overall quality of care and decrease of the abuses 

that we see in the system. Because in New Mexico, 70 to 80 percent of the nursing home beds are Medicaid. 

Mr. JOHNS. Well, the tension that we have is the tension between 

your invitation to do that which is right and to make the law within our States complicit compared to what Nancy is saying, which 

is to get them to do it if we have to use language that promotes 

enforcement, then, the whole view of a federalist mandate on the 

States, and the States saying—the States will come back in today’s 

world with the argument of sovereign immunity; you are not going 

to tell us what to do, and you did not carefully pin down in the language of your Federal law that this is a mandate to which we have 

to ascribe—the tensions are very clear. 

If we can create a forum in which we talk together about how 

we become more proactive about this, and we invite the States to 

join with us to begin a uniform laws movement, if we did it from 

a perspective that says, ‘‘Well, let us look at it in a way in which 

those who know well how to write the law have designed uniform 

language, then we go to the ABA, ALI uniform laws premise and 

try to construct a way by which that language would then be lobbied to the States to invite their agreement; at least we have dialog 

occurring.’’

Above all, I believe that what this forum does for us is to, No. 

1, make real the documentation and the investigation that you and 

your colleagues have done in the GAO, and then, No. 2, give us a 

way to say let us talk and go out and invite the talking. Hopefully, 

our conference in November will just spur that along a bit. 

I will note for the record that we have given Senator Craig several formal invitations to be our keynote speaker and that we are 

going to have representatives of the GAO there, because that dialog, we believe is so significant. 

Ms. BOVBJERG. Well, I appreciate everything that you have 

brought to the table today, literally. I want to thank the Senate 

Aging Committee and Senator Craig for inviting us all today. I 

want to thank those of you who stuck with us all afternoon for 

coming. I especially want to thank Debbie and Robert for coming, 

really, at quite the last minute, I understand. I really appreciate 

that, and I think we have laid out a problem that is only going to 

become more acute and that there is, in fact, a Federal role in 

working with States and courts to try to address some of these 

issues. 

So thank you, everyone, very much. 

[Whereupon, at 3:43 p.m., the forum concluded.] 

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