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S. HRG. 108–117

GUARDIANSHIP OVER THE ELDERLY: SECURITY

PROVIDED OR FREEDOMS DENIED?

HEARING

BEFORE THE

SPECIAL COMMITTEE ON AGING

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

WASHINGTON, DC

FEBRUARY 11, 2003

Serial No. 108–3

Printed for the use of the Special Committee on Aging

(

SPECIAL COMMITTEE ON AGING

LARRY CRAIG, Idaho, Chairman

CONRAD BURNS, Montana

RICHARD SHELBY, Alabama

RICK SANTORUM, Pennsylvania

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, 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, Ranking Member Staff Director

MICHELLE EASTON, Staff Director

(II)

C O N T E N T S

Page

Opening statement of Senator Larry Craig ........................................................... 1

Statement of Senator Susan Collins ...................................................................... 2

Prepared statement of Senator John Breaux ........................................................ 4

PANEL I

Jane M. Pollack, New York, NY ............................................................................. 4

Michael S. Kutzin, Attorney at Law, Goldfarb & Abrandt, New York, NY ........ 28

PANEL II

A. Frank Johns, Attorney at Law, Greensboro, NC .............................................. 39

Diane G. Armstrong, Consultant and Author, Santa Barbara, CA ..................... 73

Penelope A. Hommel, Co-Director, The Center for Social Gerontology, Ann

Arbor, MI .............................................................................................................. 97

Robin A. Warjone, Seattle, WA ............................................................................... 119

Robert L. Aldridge, Attorney at Law, Boise, ID .................................................... 135

APPENDIX

Comments on Guardian Accountability and Monitoring By Erica F. Wood,

Associate Staff Director, American Bar Association Commission on Law

and Aging .............................................................................................................. 151

(III)

(1)

GUARDIANSHIP OVER THE ELDERLY: SECURITY PROVIDED OR FREEDOMS DENIED?

TUESDAY, FEBRUARY 11, 2003

U.S. SENATE,

SPECIAL COMMITTEE ON AGING,

Washington, D.C.

The committee met, pursuant to notice, at 10 a.m., in room SD–

628, Dirksen Senate Office Building, Hon. Larry E. Craig (chairman of the committee) presiding.

Present: Senators Craig, Collins, and Carper.

OPENING STATEMENT OF SENATOR LARRY E. CRAIG,

CHAIRMAN

The CHAIRMAN. The Special Committee on Aging of the U.S. Senate will come to order.

My colleague and ranking member, John Breaux, anticipates

being here. There is a lot of activity going on on the Hill this morning, so I am not expecting a large turnout of Senators.

What is important about this committee is that it is called a

‘‘nonauthorizing committee’’ but it is an investigative committee

that builds a record for Senators to look at in the shaping of public

policy. So your presence here today even in the absence of a large

crowd attending is extremely important for this committee and for

the Senate as we grapple with an aging population in this country

and their responsibilities and their rights. That is what this is all

about this morning.

Today we are going to explore the issue of guardianship imposed

over the elderly. This committee originally addressed abuses of the

guardianship system in the early nineties through roundtable discussions that produced a series of recommendations. It is now time

to take a close look at how far we have come on this issue of great

importance to our Nation’s seniors.

Guardianships are a judicial intervention allowing for the management of an elderly adult’s personal affairs and property. When

used correctly in very extreme cases, guardianship can be an important tool in securing the physical and financial safety of an incapacitated elder. At the same time, guardianship can divest an elderly person of all of his or her rights and freedoms that we consider important as citizens in this great country.

When full guardianship is imposed, the elderly no longer have

the right to get married, vote in elections, enter into contracts,

make medical decisions, manage finances, or buy and sell property.

They cannot even make decisions on where they want to live. All

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these rights are taken away from the elderly and vested in a surrogate decisionmaker—the guardian.

Our investigation has confirmed that some guardianships can

have onerous effects on the elderly. For example, guardianship may

drain the elder’s estate, result in protracted legal proceedings, and

substitute the judgment of a total stranger for those of the elder

and their family.

A recent case has come to my attention where a court actually

terminated a marriage pursuant to a guardianship.

Sine people are now living longer, we can expect a significant increase in the number of vulnerable elders potentially harmed by

the guardianship process. In addition, the financial management of

a significant amount of wealth is at stake. Studies indicate the

baby boomers are expected to inherit $10.4 trillion in assets in the

next 40 years. I am interested in this issue because our Constitution ensures that all citizens shall not be deprived of liberty or

property without due process of law.

Also, substantial sums of Federal money, including Social Security and SSI payments, disability and survivor benefits, Federal

pensions, and welfare benefits, are administered and potentially

misused by guardians. For this reason, I will be asking the GAO

to study the accountability of guardians who are charged with

managing these funds on behalf of the elderly.

Ironically, the imposition of guardianship without adequate protection and oversight may actually result in the loss of liberty and

property for the very persons whom these arrangements are intended to protect.

In our effort to provide protection for our seniors, we must be

cautious that our well-intentioned interventions do not do more

harm than good. We have one such case before us here today. Our

first panel is going to visit with us about that case.

So I welcome Jane Pollack and Michael Kutzin to the committee

to tell us what happened to Mollie Orshansky. We will play an

interview providing background on this case, and then I will turn

to Jane and Michael to discuss the case in testimony with us.

So if we could start the video at this time, I think it is very selfexplanatory.

Thank you very much. That certainly is a bold introduction into

the issue that this committee is tackling today.

Before I turn to our panel, let me turn to my colleague Susan

Collins for any comments and opening statement she would like to

make.

STATEMENT OF SENATOR SUSAN COLLINS

Senator COLLINS. Thank you very much, Mr. Chairman.

First let me thank you for calling this morning’s hearing to raise

public awareness about guardianship issues and to educate seniors

and their families about the potential misuse of guardianships.

When an individual becomes mentally or physically incapacitated

and can no longer look after his or her own health and financial

interests, it may very well be appropriate for the court to appoint

someone to serve as his or her guardian. We should keep in mind,

however, that once an individual is judged incapacitated and a

guardianship imposed, the individual loses most of his or her funVerDate 11-MAY-2000 10:34 May 14, 2003 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 C:\DOCS\86496.TXT SAGING1 PsN: SAGING1
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damental rights. They cannot write a check or use a credit card.

They no longer have control over where they are going to live. They

lose their right to vote and to marry, and their guardianship assumes control over how much contact they can have with family

and friends. They even lose the right to refuse medical care or social services.

Moreover, while the reason that the court appoints a guardian in

the first place is to ensure that sound decisions about money and

care are made, there is considerable potential for abuse in the current system since the guardian assumes complete control of their

ward’s finances. We have seen a lot of examples of those, and I

know the chairman is going to get into that today.

Again I want to thank the chairman for shedding light on this

issue.

I would ask that my complete statement be included in the

record.

The CHAIRMAN. Without objection, and thank you very much for

joining us this morning.

[The prepared statement of Senator Collins follows along with

prepared statement of Senator John Breaux:]

PREPARED STATEMENT OF SENATOR SUSAN COLLINS

Mr. Chairman, thank you for calling this morning’s hearing to raise public awareness about guardianship issues and to educate seniors and their families about the

potential misuses of a guardianship system that critics say is too often overzealous

and paternalistic, and sometimes even downright abusive.

When an individual becomes mentally or physically incapacitated and can no

longer look after their own health and financial interests, it may very well be perfectly appropriate for the Court to appoint someone to serve as his or her guardian.

We should keep in mind, however, that once an individual is judged incapacitated

and guardianship is imposed, they lose most of their fundamental rights. They can’t

write a check or use a credit card. They no longer have control over where they are

going to live. They lose the right to marry, and their guardian assumes control over

how much contact they will have with family and friends. They lose the right to

refuse medical care or social services. They even lose their right to vote.

Moreover, while the reason the court appoints a guardian in the first place is to

ensure that sound decisions about money and care are made, there is considerable

potential for abuse in the current system since the guardian assumes complete control of their ward’s finances.

For example, an article in the January 2000 edition of California Lawyer details

the case against an employee of the Riverside County public guardian’s office who

admitted skimming $100,000 from her charges. That’s just what she admits to taking. Sources familiar with the case say that the actual amount stolen could well add

up to millions.

What I find particularly troubling is the fact that the imposition of guardianships

appears to be growing rapidly. In New York, for example, 32,000 guardianships

were granted in 1997, up from just 15,000 in 1992. Moreover, this number will only

increase exponentially as the Baby Boom generation ages.

Mr. Chairman, there are alternatives to guardianship for an incapacitated person.

Today’s hearing gives us an opportunity to discuss these less restrictive alternatives,

such as living trusts and durable powers of attorney. It also gives us the opportunity

to determine the extent of any abuses in the system, and whether reforms are needed. Perhaps most important, it gives us an opportunity to impress upon all Americans the importance of advance planning for a future in which they may no longer

be capable of managing their own affairs.

Again, I want to commend the Chairman for calling this important hearing.

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PREPARED STATEMENT OF SENATOR JOHN BREAUX

I would first like to thank Chairman Craig for holding this vital hearing on guardianship and some of the pitfalls associated with it. I would also like to thank all

of our witnesses who have taken time from their busy schedules to testify before

us today. Your testimony will assist the Committee greatly in determining how best

to address some of these issues of concern that currently exist in the world of guardianship.

Let me begin by saying that guardianship is not a new issue to those of us working with and for America’s seniors. A National Guardianship Symposium , which became known simply as ‘‘Wingspread’’, was held fifteen years ago, resulted in 31

landmark recommendations to better safeguard the rights of incapacitated and allegedly incapacitated individuals. A decade later in 2001, a follow-up conference,

‘‘Wingspan’’, showed us that while progress has been made, we still have much to

do.

Abuse, neglect or exploitation of our nation’s elderly will not stand. Whether it

be in the form of physical or sexual abuse, financial exploitation or abuse of the

guardianship processes it must end. To this end, Senator Hatch and I, introduced

the Elder Justice Act yesterday. Our bill builds upon Wingspan’s recommendations

by providing for education of all actors in the guardianship system and by developing research to determine how to improve this system and the lives it affects.

Thank you once again, Mr. Chairman for holding this important hearing. I look

forward to hearing from our witnesses.

The CHAIRMAN. Now let us turn to our first panel.

You have already met Jane Pollack through the video as the

niece of Mollie Orshansky. Jane is accompanied by Michael Kutzin,

the attorney for Jane Pollack.

So with that, Jane, please proceed with your testimony, and welcome to the committee.

STATEMENT OF JANE M. POLLACK, NEW YORK, NY

Ms. POLLACK. Thank you.

Good morning, Senators. Thank you for the opportunity to appear before this committee.

I come here to testify about the nightmares my family endured

to protect my elderly aunt, Mollie Orshansky. Mollie is best known

for developing the Federal poverty line formula in 1963. During her

46-year public service career, Mollie received many prizes and honors. However, Mollie has said that her proudest accomplishment

was her testimony in 1964 which helped to end the poll tax.

Mollie did everything possible to plan for her future. She executed a health care proxy naming me as her agent. She also established a trust which held all of her assets and designated her sister

Rose as co-trustee so that her money and assets could be used on

her behalf in the event of incapacity.

She purchased a New York apartment in the same building as

Rose, four blocks from her sister Sarah, my mother, and near her

nieces. Mollie planned to move there when the time was right. Her

plans were designed to let her family—not strangers—care for her

and make the necessary health and financial decisions should she

be unable to do so.

In 2001, Mollie’s building management contacted Adult Protective Services. One day, without notifying the family, the caseworker ordered an ambulance and took Mollie against her will to

the hospital. Although the caseworker and the hospital were aware

that Mollie had interested family, the hospital instituted guardianship procedures.

Once notified, I arrived in Washington and presented the proxy.

I found Mollie in four-point restraints. Her speech was slurred, and

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she was disoriented. I was told that she had to be restrained and

was heavily medicated because she kept trying to leave for home.

As her agent, my requests to obtain Mollie’s release were denied

because of the pending guardianship hearing 7 weeks’ hence. I was

told that she was there only for custodial reasons, and they were

waiting for an opening in a nursing home.

In informed the administrator and the social workers of Mollie’s

wishes, plans, and financial arrangements. However, her discharge

was denied, and she remained a prisoner.

During my visits, Mollie often said: ‘‘I did not know they could

do this to me. I cannot live like this.’’ Mollie received little attention. Her physical and mental condition deteriorated. Mollie was

forced into incontinence. Her muscles atrophied and she could no

longer stand or walk. When I was not there, Mollie was deprived

of mental stimulation and social interaction.

Mollie’s rights were trampled, and her health was dangerously

put at risk with each moment in captivity.

I relied upon my legal authority to remove her. It was the eve

of Martin Luther King Day at 7:40 p.m. With a lump in my throat

and my heart pounding furiously, I wheeled Mollie out of her room

and into the lobby. I prayed the guard would not notice. I took Mollie to a side door and pushed the door open. Aunt Mollie was free

at last.

At 10:15 p.m., I notified the nurses’ station to advise them that

Mollie was all right and they need not worry. However, after 21⁄2

hours, they did not realize that Mollie was gone.

In an emergency hearing, the judge voided Mollie’s health care

proxy, froze her account, and ordered the temporary guardian to

enlist the New York Police to have Mollie immediately returned to

Washington. Our family lived in fear that the police would storm

Mollie’s apartment and drag her away. Fortunately, we were able

to obtain a court order prohibiting Mollie’s removal from New York.

I lost my counterbid for guardian-conservator at the February

hearing in Washington, DC Mollie’s court-appointed attorney supported the court in voiding Mollie’s health care proxy and replacing

Mollie as co-trustee of her trust. Incredibly, Mollie’s attorney has

never even spoken to her, and she fought the appeal in Mollie’s

name.

Her guardian and conservator has done nothing to benefit her.

However, he diverted money from Mollie’s trust and has run up astronomical fees.

In August, the appeals court vacated all the decisions of the

lower court. However, this is not over. A judge still must decide

whether to dismiss the case entirely and whether to grant requests

for reimbursement of expenses and legal fees from the DC guardianship fund or from Mollie, forcing her to pay for the errors of the

court.

Our family, including Mollie, has so far incurred over $160,000

in expenses and bills. That is just the money; the emotional and

physical toll is incalculable.

I am hopeful that Congress will enact legislation to guarantee

that the wishes of seniors and their families are respected so that

no other family will suffer the travails that our family did.

Thank you.

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The CHAIRMAN. Jane, thank you very much.

[The prepared statement of Ms. Pollack follows:]

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The CHAIRMAN. Michael, do you have testimony?

Mr. KUTZIN. Yes, I do, Senator.

The CHAIRMAN. Please.

STATEMENT OF MICHAEL S. KUTZIN, ATTORNEY AT LAW,

GOLDFARB & ABRANDT, NEW YORK, NY

Mr. KUTZIN. Good morning, and thank you for inviting me to testify.

My name is Michael Kutzin, and I am a partner in the New York

law firm of Goldfarb & Abrandt. In the audience is my colleague,

George Teitelbaum, who represented Jane in the D.C. proceedings.

The ordeal that my client, Jane Pollack, and her family have endured in carrying out the wishes of her aunt, Mollie Orshansky,

demonstrates many of the problems that seniors and their families

often face after falling into the guardianship whirlpool.

Guardianship statutes generally recite lofty principles of honoring the wishes of an incapacitated person where possible and call

for a myriad of protections of due process rights. In addition, socalled modern guardianship statutes such as those found in New

York call for judges to provide flexible solutions to meet the needs

of an incapacitated person, such as limited guardianships, and to

honor the senior’s wishes regarding whom she wants to care for

her.

In practice, however, once a guardianship proceeding is brought

against someone, machinery begins that often presumes that a

guardianship is required and runs roughshod over the wishes of

the senior and his or her family.

This is particular true where, as in the case of Mollie Orshansky

and her family, the proceeding is commenced by a hospital or nursing home, and family members live in another State. A similar disregard for the wishes of the senior and her family often occurs

where the senior has significant assets. Both of these factors were

present in the Orshansky case.

In this case, once the petition was filed by the hospital, the judge

sought to retain control over the case even though (1) Mollie

Orshansky’s family all lived in New York; (2) Mollie Orshansky

owns an apartment in New York City in the same building as her

sister; (3) Mollie Orshansky had established years before a revocable trust naming her sister Rose as a trustee to handle her assets if she could not do so herself; (4) Ms. Orshansky had executed

a health care proxy naming her niece, Jane Pollack, as the person

to make medical decisions for her if she could not do so herself; and

(5) Jane Pollack commenced the guardianship proceeding in New

York to assure the D.C. court that no one was attempting to avoid

court scrutiny.

When Mollie Orshansky had been removed from the hospital and

transported to her New York City apartment, the judge named one

lawyer as Mollie’s temporary guardian and appointed another attorney from a large firm as ‘‘Mollie’s attorney.’’ This judge also ordered the temporary guardian to take all steps necessary, including

bringing the police, to have Mollie Orshansky brought back to the

District of Columbia.

In other words, the judge asserted that the mere fact that

someone filed a guardianship petition presumptively made

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Ms. Orshansky incapacitated and made her a captive of the District of Columbia.

In addition to these infringements of Ms. Orshansky’s due process rights, Mollie Orshansky’s court-appointed attorney never bothered to visit or to speak with her and even represented herself to

me as representing the temporary guardian.

It was in the temporary guardian’s financial best interest to keep

the guardianship in the District of Columbia in order to earn large

fees from Mollie Orshansky’s assets and, not surprisingly, Ms.

Orshansky’s ‘‘lawyer’’ acted accordingly.

Fortunately for Ms. Orshansky and her family, the U.S. Court of

Appeals for the District of Columbia in a unanimous 50-page decision reversed the trial court for its myriad failures to protect Ms.

Orshansky’s due process rights and for its abuse of discretion.

Senators, there is a role for guardianship proceedings, but where

seniors and their families are working together for the senior’s best

interests, the State must defer to the family.

In light of time restraints, I will refer you to my written comments where I have made a two-pronged legislative proposal which

I call ‘‘Mollie’s Law,’’ and I will just have to hope that you ask me

about it.

Thank you.

[The prepared statement of Mr. Kutzin follows:]

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The CHAIRMAN. Well, Michael, you set us up pretty well for that

one, but I do thank you for your testimony. Jane, certainly your

testimony and the difficulty of giving it, we understand, and we appreciate you being here today.

Senator Collins, what is your time line?

Senator COLLINS. I am fine. Thank you.

The CHAIRMAN. OK. Let me proceed, then, with a short series of

questions, and then I will yield to my colleague.

Jane, do you feel that Mollie is being cared for now the way she

originally intended when she started planning for her own care

years ago?

Ms. POLLACK. This is exactly what she had originally intended,

Senator. Mollie saw the way her sisters Ann and Bernice were

cared for by the family—and by the way, both of them lived in the

same building that Mollie is living in now.

The CHAIRMAN. That is where Mollie is now?

Ms. POLLACK. That is correct.

The family was there to care for them, to rally around them, to

visit them, and this was very important to my Aunt Bernice and

my Aunt Ann, and it was very important to us to be able to do

that. This is exactly what Mollie wanted for herself.

The CHAIRMAN. Can you tell us about the financial cost—you

mentioned it—that your family has endured in this battle, and to

what degree was Mollie’s estate depleted by the guardians appointed to manage her assets?

Ms. POLLACK. The amount that it will eventually be depleted is

at this point still being ruled upon. We have a hearing in March.

Thus far, between amounts that have been paid and amounts that

have been billed, it is approximately $160,000; and I can give you

some examples, and I will read from my written statement if you

do not mind.

Our family, including Mollie, has so far incurred over $160,000 in expenses and bills. This includes almost $50,000 claimed by the

guardian for services rendered; over $18,000 for the colleague he

hired from his law firm to fight the appeal; over $6,000 already

paid to the guardian as Mollie’s original court-appointed lawyer;

approximately $13,000 already paid to the guardian in administrative expenses; and my legal fees for Mollie’s rescue, which are at

least $75,000, covering Washington, DC, and New York.

That is just the money, Senator. The emotional toll and the

stress on the family is just incalculable.

The CHAIRMAN. Absolutely.

Michael, let me turn to you and ask the question that you have

asked of us, because it is important in building a record. Do you

see a Federal role here, and what might that be?

Mr. KUTZIN. Thank you, Senator.

Yes, I do. As I said in my written statement, I have made a twopronged proposal which I have suggested be called ‘‘Mollie’s law,’’

because frankly, it was this case that inspired me to even think of

it. Again, I understand and I recognize the fact that guardianships

by their nature are State proceedings, and they should remain

State proceedings, and we have to be careful about where the Federal Government intervenes in things that are properly State Government activities.

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However, there are two appropriate things that the Federal Government can do, one of which is, because of the fact that most institutions are in fact Medicare or Medicaid recipients, hospitals and

nursing homes and other such institutions that do receive these

Federal funds should be precluded by Federal law from seeking

guardianships where they are aware of or should be aware of the

fact that there are these sorts of legal instruments out there called

‘‘advance directives,’’ such as durable powers of attorney, health

care proxies, or the person has assets in a revocable trust.

The other prong of the suggestion is that where there are ‘‘dueling jurisdictions,’’ such as what happened here in the Mollie

Orshansky case, where the family members have brought an action

in a different jurisdiction—and we are not talking, by the way,

Senator, about disputes in the family where a brother is with mom

and the sister and another brother are somewhere else, fighting

within the family; I am talking about a united family versus the

institutions—there should be deferral to where the family is. In

that case, the District of Columbia court in my example would have

dismissed its case in favor of the New York court.

The CHAIRMAN. Well, I thank you for making those recommendations, because you obviously preface them in a way that is appropriate, and that is where does the responsibility currently lie. I

would err on the side of that, of State law at this moment; at the

same time, there is a Federal nexus as it relates to care and Federal dollars, and that is where we may well explore what might be

done here to avoid or attempt to avoid something like Mollie’s situation.

Was there any basis at all for the Superior Court’s decision to

disregard the prior planning that Mollie had in place?

Mr. KUTZIN. Are you asking me, or——

The CHAIRMAN. Yes, I am asking you.

Mr. KUTZIN. I do not believe so. I believe what happened here

was the fact that the District of Columbia court was trying to ‘‘punish’’ Jane. I use that in quotes again because I think it is a highly

inappropriate way to even look at guardianship proceedings. In

fact, the judge on a number of occasions said, ‘‘I am not going to

reward Jane Pollack. . . ,’’ blah, blah, blah, because she felt that

Jane had acted in a cavalier manner—I do not agree with that, but

I think the judge felt that way—by removing her from the hospital

and in fact removing her from the judge’s jurisdiction.

I think there is a perception that the judge had about this being

a reward for Jane Pollack, and I would like to dispel that right

now. Being someone’s guardian is not a reward for a loved one. It

is a responsibility, and it is a very serious responsibility. When you

take care of a senior citizen, especially someone you really love and

care about, it means your whole life is disrupted.

Jane Pollack has been in and out of courts, she has been in and

out of attorneys’ offices, she has been in and out of hospitals, she

has been in and out of all kinds of facilities. Her life has revolved

instead of around her own family—and when I say ‘‘her own,’’ her

husband and her teenage son—she has been running around as the

caretaker for Mollie Orshansky. That is not a reward. It is a responsibility that family takes seriously, and it should not be looked

at as a reward.

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The CHAIRMAN. I thank you.

Let me turn to my colleague, Senator Collins.

Susan.

Senator COLLINS. Thank you, Mr. Chairman.

First, I want to thank both of you for your extremely compelling

and very troubling testimony. What bothers me most is that this

is not a case where the senior citizen did not look ahead, did not

plan, did not file the documents. Instead, it looks to me as if Ms.

Orshansky did everything right—she had established a revocable

trust naming her sister as the trustee to handle her assets if she

could not do so; she executed the health care proxy naming her

niece as the person to make medical decisions for her if she could

not do so.

So, Mr. Kutzin, I would ask you, is there anything else that Ms.

Orshansky and her family could have done to avoid the very unfortunate situation that developed?

Mr. KUTZIN. I guess not getting sick, but seriously——

Senator COLLINS. I mean legally.

Mr. KUTZIN. Yes. The only document that could have been signed

in addition would have been a durable power of attorney. In this

case, though, it really was not an impediment to managing her financial affairs because she did have a revocable trust, all of her assets were in that trust, and what is more, she had assigned all of

her pension rights to that revocable trust.

So no moneys were ever escaping the control of either Mollie,

when she was well, or later, her sister Rose, when her health was

failing.

Senator COLLINS. That is what is most shocking to me. This is

not a case where the court stepped in because there was not clear

legal guidance from the person affected, and that is what makes it

all the more troubling to me.

Mr. Kutzin, I would ask you how common is it for a hospital or

a nursing home to file this kind of proceeding on behalf of a patient, particularly when there were clearly family members who

were ready and willing to assume responsibility for the care of the

loved one?

Mr. KUTZIN. Senator, I have not seen it in my practice that often,

and certainly not where there are these sorts of prophylactic measures. I practice in New York, so obviously, I cannot speak for what

goes on in DC or other jurisdictions.

But it is commonly understood that the courts, certainly in New

York, will not even entertain a case like this where there are these

sorts of advance directives, or they will only do so when there is

some sort of compelling reason to override those advance directives.

So I find it to be quite unusual.

Senator COLLINS. If Ms. Orshansky had not had significant financial assets, do you think that the institution would have

stepped in to file a petition?

Mr. KUTZIN. I do not believe so, Senator.

Senator COLLINS. The reason I ask you that is because I was

struck by a quote from a USA Today article that was included in

the written testimony of Diane Armstrong, who will be appearing

on our second panel today. It says: ‘‘For every $100,000 in a given estate, a lawyer shows up; for every $25,000, a family member

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shows up; and if there isn’t any money, then nobody shows up.’’ Are financial motives what are driving this problem?

Mr. KUTZIN. I think to a large measure that is true. Now, as I

have stated earlier—or at least I believe I stated earlier—there are

times when guardianships are in fact called for and where it is

needed for someone’s finances or to make sure that they are properly being taken care of. But often, you will see people jumping into

the guardianship fray when they see someone who is either a senior citizen or who may be frail or may have some sort of incapacity,

and they will jump into the fray because there is a lot of money

there.

I had a case recently in New York where that was exactly what

happened. The person was dull normal to possibly being somewhat

mildly retarded, and two lawyers jumped in, started a guardianship proceeding, and eventually guardians were appointed. I represented the alleged incapacitated person and tried to fight it.

There is no question what motivated it here.

Senator COLLINS. Thank you very much.

The CHAIRMAN. Senator, Thank you.

Jane, we will give you the last word. You have been through a

very difficult time, and we thank you for your persistence in behalf

of a loved one.

If you had to recommend one change in the way the guardianship system treats the elderly, what might that be?

Ms. POLLACK. I believe that it would have to be that something

has to be put in place to assure that the wishes and the plans of

the senior or the incapacitated are honored, unless there is some

extremely compelling reason why they should not be.

I think that when organizations such as Adult Protective Services get involved, before they are allowed to—how can I put this— before they are allowed to initiate or instruct the initiation of

guardianship proceedings, that they have evidence instead of

innuendoes, that they have proof that there is some reason to disregard a person’s wishes, that if there is a family that is willing

to take charge, that they have proof, not innuendo, not suspicion,

that there is some wrongdoing, that this person is in danger in

being in the family’s care.

In Mollie’s case, this was not there, and this is really what started the whole proceedings, because APS was very knowledgeable

and had been speaking to my sister Eda. APS knew about the family, knew about the family’s involvement, knew about the family’s

interest. In fact, the first time the APS worker came to Mollie’s

house, my brother-in-law was there.

I think there should be some oversight and some reining in of the

authority that APS has and some mandate that they must have

proof before they interfere in the way they did in Mollie’s case.

The CHAIRMAN. Thank you both very much for your testimony.

It is extremely value, and we appreciate it.

Mr. KUTZIN. Thank you, Senator.

Ms. POLLACK. Thank you.

The CHAIRMAN. We will now proceed to our second panel. While

they are coming up and the table is being prepared for them, let

me introduce them to the committee for the record.

Thank you, Susan.

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Frank Johns is a preeminent guardianship reform scholar and

author of numerous articles addressing the abuse of guardianship.

Dr. Diane Armstrong, as Senator Collins mentioned, is author of ‘‘The Retirement Nightmare: How to Save Yourself from Your

Heirs and Protectors.’’ Penelope Hommel is co-director of the Center for Social Gerontology, and she will discuss the alternatives to

guardianship proceedings, including durable power of attorney, living trust, representative payees and extra-judicial mediation.

Robin Warjone from Seattle, WA was the subject of a guardianship petition filed by her three children. She was forced to spend

her entire retirement nest egg, $300,000, to successfully retain her

independence.

Robert Aldridge is an attorney from Boise, an elder law attorney

and one of Idaho’s foremost guardianship reforms. He will discuss

Idaho’s progressive laws and practices in these areas. We appreciate all of you being here this morning. With that, I will follow

that order, and Mr. Johns, we will allow you to proceed.

STATEMENT OF A. FRANK JOHNS, ATTORNEY AT LAW,

GREENSBORO, NC

Mr. JOHNS. Thank you, Mr. Chairman. Thank you for the opportunity to testify on these issues relating to due process provided alleged incompetent older persons in guardianship proceedings.

The focus of my remarks is on the areas that involve due process

within the function of the courts and by the judges sitting in those

courts. Mr. Chairman, I do want to mention that I appear before

the committee with 25 years litigation experience in guardianship

and in writing and research. I am also a member of the National

Academy of Elder Law Attorneys, of which I am past president and

a fellow, and a charter board member of the National Guardianship

Association, two national organizations, along with the ABA Commission on Law and Aging, and sections of AARP which have for

years given careful attention to the problems that occur in guardianship and how they might be remedied.

Mr. Chairman, I ask unanimous consent that my written statement and the supplemental materials that I have appended be a

part of this hearing.

The CHAIRMAN. All of your full statements will be a part of the

record, and I thank you for that.

Mr. JOHNS. Thank you, Mr. Chairman.

I will forego discussing the history, although it is noteworthy and

might help staff members and committee members to look at some

of the historical comments I give in the appendix, because guardianship can actually be tracked back through five different cultures

going back to Greece and the Athenian times.

In this era, however, Senator, let me address the question: Have

all of the statutory reforms that have occurred in the last 12 years

had an impact that benefits those who are caught in the process?

Quite frankly, the simple answer is ‘‘No,’’ and that is why we are

here before you this morning.

In the experience that I have had in the time that I have dealt

with guardianship, what I have found is that there is both good

and evil in the process. The evil comes from—not to grab a sound

bite that is already out there—but there is an axis of three primary

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pools of actors arbitrarily dealing with the process. It is judges,

who violate the rule and the spirit of the law of guardianship. It

is social agencies that intervene when intervention is not focused

on the protection of the best interests of the persons to be served,

but only on their own objectives in the process; and those many

family members knowing nothing of the process and using and

abusing it, of course, when the dollars are more.

I will make one point, however, Mr. Chairman, if you please.

That is that social agencies are going to have to serve elder citizens

of modest means when they are on Medicaid and incompetent,

when they are so vulnerable and at risk in nursing home environments. Those public agencies are going to be the ones to whom we

look for serving this rather huge volume of people who are going

to need protection. The demographics show us that those numbers

of vulnerable elderly citizens are going to increase monumentally.

As those numbers increase, budgets of agencies may well be benefited by the numbers of people served. The problem is there is no

accountability or monitoring within any agency or over any guardian that well serves the interests of the ones to be protected.

Careful attention is drawn this morning, Mr. Chairman, to the

judge and to other judges who have arbitrarily exacted what is

called ‘‘parens patriae,’’ that is, being the benevolent protector of us

all, and they do it in a way that circumvents the law and takes

issue with what they think is the right thing to do, but in the

wrong way.

The truth of the matter, Mr. Chairman, is that many judges tend

to believe that the ends justify the means, and they are willing to

circumvent the laws that are right there on the books to deal with

those being served in ways that contravene of the law.

I direct your attention to two primary areas that need attention.

One primary area is that training of judges and the social agencies

that support the guardianship system. This are absolutely necessary. The second primary area comes from the literature and the

testimony of 1992 and 1993 before this very committee, when the

late Professor John Regan asserted that we have to pay attention

to the demographics, and another speaker noted that there is no

empirical data from which any of our opinions might be wellgrounded.

The research that is most recent only comes from 1994 and the

data, Mr. Chairman, that that research comes from comes from

1989 and 1990. There is nothing among the States that even shows

how many guardianships are out there.

In the difficulties that occurred in the State of Michigan 3 years

ago when the Detroit Free Press did its expose, it provided documentation of 100,000 guardianships in the State of Michigan alone.

If it were possible to count the guardianships in California, or New

York, or Texas, the numbers, I believe, Mr. Chairman, would shock

this committee. To believe that 90 percent of those who are guardians have no experience, no capability of dealing with it, and are

not monitored or called to account is a very difficult proposition.

These propositions were addressed, Mr. Chairman, in the second

National Guardianship Conference called Wingspan which was

held in late 2001. I identify the recommendations that deal sole

with due process, and then I highlight three of those recommendaVerDate 11-MAY-2000 10:34 May 14, 2003 Jkt 000000 PO 00000 Frm 00044 Fmt 6633 Sfmt 6633 C:\DOCS\86496.TXT SAGING1 PsN: SAGING1
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tions that are critical to this committee’s attention in terms of investigating where it should go with what it finds to be problems

in the system. I address those three recommendations, the first one

being the funding of a major grant narrowly focused on research

that would be nationwide, giving us a primary database in guardianship for the first time.

The second recommendation is to identify Federal assistance that

is already out there, and refocusing it to investigate of ways to implement accountability and monitoring by the very public agencies

that are in the States that are receiving Federal funding as we

speak.

The third recommendation is to investigate ways by which judges

might be trained to know that the due process components of the

law must be scrupulously exacted in every courtroom, for every

case.

Mr. Chairman, I suggest that the National College of Probate

Judges, an august group of probate judges from around the country, would be a wonderful partner in designing ways by which

training and the implementation of their standards could take effect in every county across the country.

The CHAIRMAN. Frank, thank you very much for that testimony.

It is valuable and important, and we do appreciate it.

Mr. JOHNS. Thank you, Mr. Chairman.

[The prepared statement of Mr. Johns follows:]

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The CHAIRMAN. Now let me turn to Dr. Diane Armstrong, author

of ‘‘The Retirement Nightmare.’’ Doctor, welcome before the committee.

STATEMENT OF DIANE G. ARMSTRONG, CONSULTANT AND

AUTHOR, SANTA BARBARA, CA

Ms. ARMSTRONG. Thank you, Mr. Chairman. Thank you for inviting me to testify today.

In discussing the motives that drive these involuntary conservatorship and guardianship proceedings, I am speaking for the

hundreds of thousands of men and women whose retirement years

have been destroyed by them.

Our States designate these proceedings as ‘‘nonadversarial’’ in

nature, brought out of the goodness of the petitioner’s heart to help

an elderly person in distress. It is a powerful term, and it is almost

always incorrect. These are court battles fought over money, power,

and control. Sadly, the elderly lose almost 94 percent of the time,

often in proceedings that take only 4 minutes. Their cases are rarely appealed.

Let us begin with a brief discussion of the motives guiding family

members. The majority of these petitions are filed by adult children

who are seeking some form of control over the personal or financial

affairs of their aging parents. They are sibling battles rooted in

issues of inheritance and control, often described as ‘‘thinly veiled

will contests performed before death.’’ Anyone who reaches 62 with

coveted assets is at risk. As one forensic psychiatrist noted about

these so-called protective proceedings and was quoted a moment

ago: ‘‘For every $100,000 in a given estate, a lawyer shows up; for

every $25,000, a family member shows up; and if there is no

money, nobody shows up.’’ I have time to present only one case, although five more are contained in the appendix you have before

you. I have chosen a typically bizarre family battle. Motive? Follow

the money.

After the death of her husband, Delphine Wagner of Nebraska

decided to lease some of her land to a professional alfalfa company

rather than continue to let her son and son-in-law farm the land.

In so doing, she generated a 160 percent increase in her income

from the leases.

Four of her six children filed conservatorship petitions against

her and testified in court that she could no longer properly manage

her affairs. Their proof? Because she had generated a 160 percent

increase in income, Mrs. Wagner would have to pay more in taxes;

and what person in their right mind would want to pay Uncle Sam

more taxes?

The court agreed with the petitioners and appointed a conservator over Delphine. Although already 79 years of age, Delphine had

the energy and the money to battle through two more courts, year

after year after year, and her freedoms were finally restored.

Over 25 percent of the cases I describe in ‘‘The Retirement Nightmare’’ involve proceedings that are initiated by social workers and

members of the social welfare community. What motives drive

these individuals and agencies to file petitions? A desire to control

the increasingly independent elders and their money, and a need

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to expand the number of persons ‘‘helped’’ by the agency in order

to increase agency funding.

What motives drive members of the court? Judges and their favored professional conservators and guardians, expert witnesses

and court investigators have unspoken agendas of money, power,

and control.

When an elderly individual is brought into court and forced to

prove his or her competence, we soon see that the system does not

work. We have a system rife with court-sanctioned elder abuse.

Why? Judges override protections that have been put in place in

the codes. It happens every day. Judges disregard durable powers

of attorney—the single most important document each of us can

create to determine our care should we become incapacitated. We

have seen the health care proxy overturned in the Orshansky case.

Judges ignore our lists of preselected surrogate decisionmakers.

The current system does not work. This reality is most apparent

when a wealthy individual falls victim to these involuntary proceedings and his or her wealth becomes a ripe plum to be shared

by the judge’s favorites.

The cost of my mother’s 18-month conservatorship battle in Los

Angeles Superior Court exceeded $1 million because no court appointee would let the matter end until my mother agreed to settle

out of court and pay every bill of every person involved on both

sides of the case.

Money is a lure. Once the hook is set in a wealthy potential

ward, courts have a feeding frenzy. All of Riverside County in

Southern California was held hostage by the collusion between a

single probate judge and his favorite professional conservator.

Third parties such as nursing homes, hospitals, and continuing

care facilities often require conservatorships or guardianships over

their patients to ensure payment of bills or to evict the elderly from

one setting and place them in another. In many cases, nursing

homes will refuse admittance to adults who are not represented by

court-appointed surrogate decisionmakers. This practice, while not

legal, is often the price of admission in the face of an increasing

demand for the limited space available in private convalescent centers.

Families are destroyed by these proceedings. The hundreds of

thousands of unfortunate men and women who have been placed

in the velvet handcuffs of contested conservatorships and

guardianships in America are without hope. Their conservatorships

and guardianships end only when they die—or when the system

spends their assets down to $10,000 or less and spits the wads out

into a harsh world of poverty.

Sibling battles rooted in issues of inheritance and control, social

welfare petitions driven by hidden agendas of power and control,

nursing homes that quietly require financial guarantees, and court

actions that create the very abuse they are tasked to address—our

country’s involuntary conservatorship and guardianship system is

out of control. It is no longer a morally permissible option.

I now pose a final question: Is the present hearing merely a 10-

year revisiting of an ongoing problem last discussed by the Senate

in 1991, 1992, and 1993; or are we here to see, for once and for

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all, that this court-sanctioned abuse of the elderly finally comes to

an end?

I thank you.

The CHAIRMAN. Dr. Armstrong, thank you very much. We will

get back to that provocative ending question in a few moments.

[The prepared statement of Ms. Armstrong follows:]

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The CHAIRMAN. Now let me turn to Penelope Hommel. Welcome

before the committee, and please proceed.

STATEMENT OF PENELOPE A. HOMMEL, CO-DIRECTOR, THE

CENTER FOR SOCIAL GERONTOLOGY, ANN ARBOR, MI

Ms. HOMMEL. Thank you, Mr. Chairman. It is indeed a privilege

to be before you today to discuss the very serious issues of guardianship.

However, what I have been asked to do is not to speak directly

about problems with guardianship but rather to talk about two alternative approaches that might provide another way of looking at

this very difficult and serious issue.

The two approaches are the use of mediation in guardianship

cases and advance planning for alternative mechanisms that might

avoid guardianship in the event of later incapacity.

For a couple of reasons—one, because mediation is the one that

you are less likely to be familiar with, and two, because we have

already heard about some of the alternative mechanisms, both

their potential strengths and their weaknesses—I am going to devote the bulk of my comments to mediation.

As background, I would like to explain how we arrived at the

idea of mediation. The Center for Social Gerontology, along with

others at this table and from across the country, had been working

on guardianship reform, trying to improve protections for older people, since the 1970’s. As you have already heard, a fair amount of

success was achieved, and many of the State statutes were revised

so that on paper, at least, many of the concerns were addressed.

However, in the late 1980’s, we began to realize two things that

made us look for another alternative. First, we realized that while

the statutory changes promised greater protections, they also

pushed guardianship hearings to become more formal and more adversarial, and we questioned whether for many of the cases, the adversarial model was the best approach. It can result not only in the

significant economic and emotional costs we have already heard

about, but it can result in the magnification, rather than the resolution, of differences among the parties who are facing very difficult situations.

It typically results in a win-lose situation and may foreclose dialog among the parties at a time when it is most desperately needed.

The second thing we noticed was that as Frank Johns has already mentioned, the implementation of the statutes was nowhere

near keeping pace with the written law and that the protections

that existed on paper did not exist in reality in many cases. Perhaps most important, older persons at risk of guardianship continued to have little or no role in the process and were not even

present at the guardianship hearings which would decide their capacity and their need for a guardian.

Thus, while we continued to work for statutory reform and implementation, we also looked for a nonadversarial alternative process that might be more meaningful in addressing many of the complex needs and disputes in guardianship cases, and we found it in

mediation.

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While we consider guardianship only as a last resort in all of our

work, we particularly felt that in pursuing mediation, it might be

helpful in finding less restrictive alternatives. So in 1989, we

sought and received funding from the United States Administration

on Aging to test the use of mediation, and we have continued to

develop it since that time in a number of States across the country.

A recent evaluation that we conducted showed that the parties

and the attorneys believe that in appropriate cases, it can be very

effective in finding more satisfactory resolution, such as fewer

guardianships, and resolutions that preserve family relationships

rather than destroy them as often happens with contested court decisions.

What is mediation? It is a facilitated discussion among the parties in an informal and confidential setting that can occur at any

point in the process. The mediator serves as a neutral facilitator,

not as a judge, not as a decisionmaker. The parties are the ones

who decide how the matter will be resolved. It is the mediator’s

role to guide the process in a way that leads to better understanding among the parties, clarifies issues, draws out ideas for resolution, and builds consensus that can make agreement by all the parties possible.

While a court’s response in a guardianship petition is limited to

a simple statutory solution to appoint a full or limited guardian or

dismiss the case, mediation can focus on other, underlying and important needs and interests of the people at the table and can focus

on solving issues that they bring to the table. It can help people

explore alternatives and options other than guardianship, because

often petitions for guardianship are brought with the idea that

guardianship is the only solution, the only alternative ways to go.

Issues in mediation tend to revolve around safety, autonomy, living arrangements, and financial management. Oftentimes, the mediators find that the legal issues presented in the court petition

have little to do with the issues that are below the surface that are

really causing the family turmoil. For example, while the surface

issue and battle may be over who should be guardian, the real

issue may be longstanding sibling rivalries and controversies over

inheritances. Mediation can help the families identify and talk

through some of those underlying issues and try to reach a better

understanding and resolution. Often, the primary issue is one of

safety versus autonomy—to what extent is an older adult allowed

to make what others may consider to be bad decisions? Are family

members attempting to control decisions that should not be theirs

to make?

For the court, the question is whether there is sufficient evidence

to show that the older person needs a guardian. For mediation, the

issue is resolving the real underlying issues, needs and problems

that present in so many of these cases.

In addition to the potential benefits, however, I want to just

mention some of the limitations of mediation. From the moment we

thought about this as a possible alternative approach, we recognized that it needed to be approached very carefully and that special policies and procedures needed to be in place, most particularly

to safeguard the older person alleged to be incapacitated. So we

have made sure that in any mediation programs that go forward,

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issues of confidentiality, protection of the respondent, appropriate

and inappropriate cases—because certainly not all cases are appropriate for mediation—are carefully considered.

In terms of where we are today, I think we are at a very exciting

point. We have found that mediation can be extremely useful. However, what we have also found is that we become aware of with experience is that by the time the people are on the courthouse steps,

by the time the guardianship petition has been filed, it can often

be too late for the families and interested parties to come together

and really resolve their disputes. People are entrenched in their positions and have, in effect, dug in their heels.

We also realized that in addition to trying to get to cases earlier

on, many, many of the issues that we were dealing with in mediation were in fact family caregiver issues, and this coincided with

the recognition by Congress, as well as by the aging network overall, of the critical importance of family caregivers in providing longterm care and assistance to older persons.

So we have recently applied to the Administration on Aging and

received funding to test an expanded version of mediation that goes

beyond strictly guardianship cases where the petition has been

filed and looks at pre-petition caregiver cases. We are looking to

the aging network to identify caregiving families that are in need

of some assistance in addressing the very difficult issues that they

are confronting and the pressure and the tensions, and as a way

of possibly avoiding a future need to petition for guardianship.

So far, the response has been tremendous. In one of the cases

that we mediated, a care manager indicated that in 21⁄2 hours of

mediation, more was achieved than in over a year of casework in

that particular situation. So we see tremendous potential for this.

I do not have time to go into any of the other alternatives. I

would just like to conclude by saying that we are so thankful to

you, Senator Craig for having this hearing. We look forward to continuing to work with you, not only on the serious issues of this nations’ guardianship systems but also on the potential of mediation

to help support caregiving families in this family and also, hopefully, to avoid or restrict the use of guardianship for those situations.

Thank you.

The CHAIRMAN. Penelope, thank you, and thank you for focusing

on the dimension of mediation. I think that that is important to

understand.

[The prepared statement of Ms. Hommel follows:]

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The CHAIRMAN. Let us now turn to Robin Warjone of Seattle. I

mentioned earlier that she was the subject of a guardianship petition filed by her three children.

Please proceed.

STATEMENT OF ROBIN A. WARJONE, SEATTLE, WA

Ms. WARJONE. Hi, everybody.

In May 2000, I was 56 years old with grown children 30, 31, and

26. I lived in my own home with a high yearly income of about

$140,000 and a vigorous investing program which included T-bills,

IRAs, and a small portfolio. I would have had $7,000 minimum each month after I was 65.

Now I will have less than $2,000.

After my divorce, I left behind an exhausting life as a professional executive wife, and I stopped entertaining, gave up as much

cooking and cleaning as I could possibly manage. I was living very

happily in my messy house. I had a small antique shop in a large

mall. I was gathering items for the shop, which I enjoyed, and that

made for dozens of boxes around my house.

I had a new man friend. I remember how often the stars spread

in all their glory across the night sky that winter. It was the

happiest year I had had in 15 years.

Today, after being nearly destroyed by a financially and emotionally exhausting guardianship law suit which lasted almost 11

months, from May 18, 2000 until March 29, 2001, it cost me nearly

all I had.

The first hint that trouble was coming in the spring of 2000, was

when my lawyer completed revision of my revocable trust and

phoned my three children to come in and sign it. They refused, saying, ‘‘Our lawyers advised us against it,’’ and ‘‘our lawyers said it

will make us responsible for your debts.’’ Wow, I thought, pretty

rotten financial advice. Full inheritance, without probate, is not

such a bad deal.

On May 18, 2000, a ratty little man rang my doorbell and thrust

a lawsuit into my hands. It was a Petition for Guardianship naming me as an ‘‘alleged incapacitated person’’ and listing my three

children as the plaintiffs. Of course, I was horrified.

I knew they had not read the statute, and they had not done

their homework. They must have had some pretty ruthless lawyers

urging them into this extreme, almost violent, action.

Later, the kids said things like: ‘‘We did not want to have to take

care of you when you were old.’’ One volunteered: ‘‘I asked the lawyers how we could get control of our mother, and they said that

that it wasn’t possible except by one method—the Guardianship

Suit.’’

I call this the ‘‘Capone Trick’’—they could not get Al Capone on

racketeering or murder or prohibition violations, they could get him

by income tax evasion.

What does this tell you about the guardianship laws? Diane Armstrong’s book, ‘‘The Retirement Nightmare,’’ has plenty of horror

stories about the ‘‘backdoor’’ approach.

A court appointment was made for the Case Investigator, whom

they call the ‘‘G.A.L.’’ or ‘‘guardian ad litem.’’ I did not get to be

the defendant. I called the ‘‘A.I.P.’’ alleged incapacitated person.

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I hired a topnotch private law firm, because I had just learned

that almost no one escapes a guardianship perhaps 6 percent,

mostly those who have the time and money to resist.

Diane Armstrong and I went to college together. The day that

the petition was served me, my Alumni Bulletin from Scripps College came, and Diane’s book about contested guardianship was reviewed. I called her immediately and she worked with my attorneys throughout the almost one year that this system held me up.

If you have not looked at those graphics over there, really, really

look now. This can happen to anyone in this room, and that is what

you lose. This system is so corrupt—and I do not mean moneyunder-the-table corrupt the system has no checks and balances; it

has no oversight. It is so terribly unorganized that it operates on

its own, in a little void. In Seattle it is a department of the Washington State Superior Court, called ‘‘Ex Parte and Probate,’’ and it

is a law unto itself. We had no appeal system to get me out of it.

In my report, I have little checks, and there are dozens of them

here—how disorganized and therefore abusive and corrupt, the system is, I have just gone through this. So take a minute and count

those checks.

I do not think you are a person if your legal identity is taken

away, which happens under this law. You do not exist under the

law without your rights. If you do not exist under the law, you are

a slave in ancient Rome or the Old South, or you are somebody in

a concentration camp. You do not exist. Therefore, whether you are

capacitated or incapacitated does not matter, because you can be

abused either way.

When I got the attorneys, I said ‘‘The first thing is that the

G.A.L., guardian ad litem, cannot talk to me unless one of you guys

is there.’’ I had the good sense to do that. The next day, the G.A.L.

comes to my door and tried to get in; he was ignoring the injunction.

The G.A.L. had to read me the petition, the law, which had just

been served to me. That is required in Washington State. We did

it in my lawyers’ offices. When he is through reading it, Pam leans

forward and says, ‘‘Well, tell me, Mr. W., how are you going to go

about this investigation? The sole decision on whether you are

going to have guardianship or not is based on a single report by

this investigator—that is it. There is one other thing, but it does

not necessarily work.

OK. She leans forward and says, ‘‘How are you going to go about

this investigation?’’

The G.A.L. is an attorney, but he answers, ‘‘Well, by the nature

of the report I have to write, I rely almost solely on hearsay and

gossip for my information.’’ Everybody’s necks at that table went,

‘‘What? Did he just say hearsay and gossip? But he is an attorney,

and this is supposed to be a legal matter!’’

One of leading judges—and they call them ‘‘commissioners’’—

they make nice language one of the commissioners sitting on a

panel discussion recently said, ‘‘We are not so much a court as a

social agency.’’ Wait a minute. You are not a social agency. You are

a court.

According to the statute, you are supposed to be heard. There is

a hearing 30 days after you are served the petition. Hopefully, a

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decision will be made. The G.A.L. canceled that meeting; he was

busy. He did not even begin his research on me until August. His

research eventually included talking to my accountant, my doctor,

the trustee of my revocable trust—all those people. He did not even

start until we were mostly through the summer.

I had good attorneys. By the middle of July, I have spent $20,000. In July, I had to sell the first of my major investments.

Twenty thousand dollars went to the attorneys, and the rest I used

to buy a rental house in a nice neighborhood, I figured that financially, I could recover enough on the rental to make up for the interest income I lost by selling the T-bill.

My children urged the guardian ad litem and their attorneys, to

ask for a special hearing to stop me from buying the house. My attorneys did a precedent search, which had to be done by hand, because the stuff was so old that it was not on the computer.

The CHAIRMAN. Robin, you are about 5 minutes over. If we could

ask you to shape your time a little.

Ms. WARJONE. I am so sorry. OK, I will.

The CHAIRMAN. Thank you.

Ms. WARJONE. They found a precedent in 1852 which ruled that

anyone who has not been convicted of a guardianship still has all

their civil rights.

The trial went on in that fashion. The court abused every law,

every custom. It is here if you want to read it; and I recommend

Diane’s book. So thanks, everybody.

The CHAIRMAN. Well, Robin, we do appreciate you being here,

and I will have some questions, but I have to believe that you

viewed that as a living nightmare.

We thank you very much for that testimony.

[The prepared statement of Ms. Warjone follows:]

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The CHAIRMAN. Now let me turn to our concluding witness, Robert Aldridge of Boise, ID, an elder care attorney in Boise who has

been a strong advocate in Idaho for guardianship reform.

Bob, we appreciate you being before the committee. Please proceed.

STATEMENT OF ROBERT L. ALDRIDGE, ATTORNEY AT LAW,

BOISE, ID

Mr. ALDRIDGE. Thank you, Mr. Chairman. It is a great honor to

be here.

I believe that one of the defining, fundamental characteristics of

any society is how they treat their elderly and their disabled. It is

difficult to summarize 14 years and hundreds of bills, so what I am

going to go through is merely some tips of what we have done.

Each of them tends to come from cases like the Orshansky case.

Those cases tend to scar all of the people involved, and each of

them then becomes an imperative to change.

The first is that we have greatly changed the definitional concepts in the statutes. The existing Idaho probate code as it was

adopted in 1972, and the Uniform Probate Act as it exists tend to

put people under labels. One of those labels was ‘‘elderly.’’ The

mere fact of being old was enough to have guardianship.

So we removed those and went to a question of legal—not medical—disability, and that incapacity was to be measured by function

limitations. The question was not what you fit into, especially if it

was chronic conditions, but what you could not do and what you

needed help with.

We also provided that the evidence and the inability had to be

recent and had to be evidenced by actual acts. I have often expressed before the legislature the right of the elderly and all of us

to be eccentric and even occasionally stupid. Put more elegantly, we

have the right to age, to live our lives with dignity and with individuality. We are not to be put into cookie-cutters of what someone

in disinterested status might believe is the only way to do things.

We also greatly strengthened the due process changes and the

appointment procedures. First, the guardian ad litem. As has been

referred to, the guardian ad litem can be a strong advocate for the

person, or they can be merely an instrument for bringing them

under the system. So we greatly expanded the requirements, what

had to be investigated, representation needed, and especially the

ethical duties of the guardian ad litem, those of loyalty.

We have a separate court visitor. That person is to be a completely independent disinterested person. On what I would have

thought would have been inherent and built into their structural

methods, we finally ended up writing what I am ashamed to admit

is a 485-word statement of what is required to be in their report—

an exhaustive listing.

But as in many of our laws, we found that we had to create primers. We had to lay out excruciating details of what had to be done

so that it had to be followed. We also strengthened the right of the

person to absolutely have independent counsel at any point in time.

We also went through the priority appointments. As has been

noted in many of the cases here, there is often an outside appointment initially. The question has been raised what happens with

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the person’s own planning, so we provided that if the person himself cannot give a recommendation, that is the recommendation

that the court has before it; if the person cannot give, either orally

or in writing, a recommendation, then we look to their lifetime recommendations made through power of attorney, through durable

powers of attorney for health care, and so forth, and those are the

next layer. Only after we have gone through all of those and found

nothing do we go down the list of family and so forth. Family is

always looked at next; we do not go to outside persons unless there

is simply no one there.

An area of abuse that is often used is temporary and special appointments. Very often, emergency is used as an excuse to place a

tremendous amount of restraint on a person without any hearing

and without any review. So we almost eliminated that. In order to

have a temporary or special appointment, you have to have severely limited powers; it can only be done in extreme emergency

and for a limited period of time. There is the required appointment

of a guardian ad litem. They have to have hearings within very

short time periods, and again, it is to be carried out only as long

as necessary to get into the question of whether guardianship is

needed at all. In the old days in Idaho, there used to be 6-month

appointments which were done without any notice even to the person involved, and they could be renewed indefinitely.

We have also striven and will continue to strive to make sure

that guardianship is almost the most limited form possible. It is

not to be general unless it is absolutely necessary, and it should

be the exception, not the rule.

We have also worked on having coordination between States. We

often have cases where someone has contacts both in the State of

California, or Oregon, and Idaho. We have set up a method where

the judges can work directly with each other, not through the formal court settings but one-to-one.

We have also worked with the question of training of judges and

tried to educate them as to what needs to be done.

We also need to preserve the estate plan of the person, so it is

literally forbidden for the guardian or conservator to interfere with

that estate plan; it must be preserved.

We have also gone into the post-appointment procedures to make

sure that after the appointment is done, if it is necessary, that it

is correctly carried out.

A lot of the problems are those that have been raised. We found

that in the State of Idaho, we could not even find out how many

existing or old cases there were. Courts simply would not identify

them. So we spent a year and a half reforming that system with

the Idaho Supreme Court and then identified cases. We then found

that of the approximately 400 open cases in Ada County alone, 90

percent have no recording of any kind of accounting or status reports.

We then formed an independent fiduciary review committee on

a voluntary basis—I and several other attorneys and a trust officer—and in about 3 years of purely voluntary proceedings, we recovered in Ada County alone well over $3.5 million of misspent

money. I would like to say that that had been outside persons,

stranger, but it was not—it was family.

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We have also established an ongoing program to create a list in

association with the AARP, the Department of Finance, and the Attorney General’s Office, to have a pilot program to monitor those

on a statewide basis. Many smaller courts simply do not have the

time to do so.

We have established another program to do guardianship monitoring and training, again with the assistance initially of the

AARP.

We also have to look at court enforcement. As has been noted,

courts have laws before them, and if they do not follow them, they

are not any good. So we have given two different areas to the court.

One is the ability to enforce through fines, surcharges, and so

forth; and second, we give training to the courts. We try to get to

the magistrates conferences and so forth. We have also created

guardianship and conservatorship handbooks which are given to

both courts and to all appointed conservators and guardians to

walk them through their duties.

There is obviously much more, but I think it would be better to

respond to questions.

Thank you.

[The prepared statement of Mr. Aldridge follows:]

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The CHAIRMAN. Mr. Aldridge, thank you very much for that testimony and example of what one State has done and I hope others

are doing to improve this situation.

Let me ask you all some questions. Mr. Johns, one case came to

my attention where an elderly man was forced to divorce his wife

pursuant to a guardianship order. I find this highly disturbing. On

what possible basis can that be allowed to happen in this country?

Mr. JOHNS. Mr. Chairman, if the facts are carefully studied, such

a situation could present itself when, for example, the person presenting as spouse is in a late marriage with someone one-fourth

the age of the protected person, who may be described by some as

a ‘‘golddigger,’’ who in fact takes position in such a way that cuts

the rest of the family members off from any access to the elder person, begins diverting assets of the estate in a way that truly brings

to the attention of the judge a reason for addressing issues that

would include divorce.

However, the focus of your concern and your question may generate more from this scenario, where the person marries late in

life; it is a person within 10 or 15 years of his or her own age; the

person has some wealth of his or her own; they are truly in love

and are in companionship, and the children of one or the other

spouse are irate at the fact that mother or dad would remarry, and

that would in fact, maybe, move some of what was to be their inheritance to this new love in life. Those children intervene asserting that the marriage is a sham and should be dealt with by divorce exacted potentially by the probate judge if he or she has jurisdiction, or moved to a family court forum in which the issue of

divorce is raised, or even some form of annulment.

The CHAIRMAN. Well, I thank you for outlining that, because I

find this in a Florida case—I think it was referencing an article in

The Orlando Sentinel of 1994 on the Norma and Buford Bonds case

in Florida—where I think the latter was true.

Let me ask another question of you; I will complete my questioning of you before I turn to a colleague who has just joined us for

any comments that he would wish to make, and then we will move

on with further questioning.

Is it typical for guardianship orders to trump prior existing legal

arrangements made by an incapacitated individual, and under

what circumstances can that occur?

Mr. JOHNS. The answer is yes. Guardianship orders may in fact

trump the pre-planning if, on the facts presented before the judge,

there is some reason to believe that what had been pre-planned has

become something that will in fact do harm to the person who is

supposed to be protected.

However, the reality is that—much as happened with Mollie

Orshansky—many judges do not pay attention to what pre-planning is there and do not examine whether there are benefits to be

gained by simply saying the efficiency of the court’s time is bestserved by dismissing the case.

The CHAIRMAN. Thank you.

We have been joined by Senator Carper, and I appreciate him as

a valuable member of this committee who attends on a regular

basis. We are glad that you have taken time to come by this mornVerDate 11-MAY-2000 10:34 May 14, 2003 Jkt 000000 PO 00000 Frm 00146 Fmt 6633 Sfmt 6633 C:\DOCS\86496.TXT SAGING1 PsN: SAGING1
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ing and be with us. Do you wish to make any opening comment before we proceed with additional questions?

Senator CARPER. I do not. I am delighted to be here.

As you know, we serve on a number of committees, and I have

just jumped out of one committee with Chairman Greenspan, who

is talking to us about the economy and monetary policy, and I am

pleased to be able to join you for a bit and I thank you all for coming and testifying before us.

I have a question or two that I would like to ask at the right

time.

Thank you.

The CHAIRMAN. Why don’t you go ahead and ask questions now,

and then I will come back to mine?

Senator CARPER. Thank you, Mr. Chairman.

Mr. Chairman, in reading through the materials that my staff

has provided for me for today’s hearing and some materials provided by the committee staff, there are several referrals to a State

which seems to be doing it right with respect to guardianships and

their approach on these issues. The State that kept coming up in

the materials I read was Idaho. [Laughter.]

Proceed, and we will see if it is a coincidence or not.

Senator CARPER. When I ran for the U.S. Senate in 2000, I had

been Governor of Delaware for 8 years, and I talked a lot on the

economy about Delaware as a model for the country and the way

we manage our economy, create jobs, overhaul our schools and welfare. But we never thought of trumpeting the way we had overhauled guardianships or addressed alternatives to guardianships. I

do notice that Idaho keeps coming up. ‘‘Idaho’s statutes and practices are models for emulation.’’ That

is a quote right out of my materials.

I am not sure if any of you are from Idaho, but can somebody

just tell me what they figured out in Idaho that the rest of us need

to emulate?

The CHAIRMAN. Just before you came in, or as you were coming

in, Robert Aldridge, who is an attorney from Idaho and very much

a long-time reformer in this area, had just concluded his comments,

so I will turn to Mr. Aldridge to respond to Senator Carper.

Mr. ALDRIDGE. Senator, what we decided in Idaho was first of all

that society has given us as attorneys a lot of gifts, a lot of prerogatives, and that we owed it to give back something to the community. What we can do best, I think, is first, to see problems and second, write bills to correct them.

So in the State of Idaho for now 14 years, we have entered into

a very active coalition-building method of going to the Idaho legislature and changing rules, changing laws, when they do not make

any sense, when they work incorrectly. We have done that in part

looking internally to problems; we have also gone to a lot of other

States and attempted to glean from other States what they have

done right and then bring that in and incorporate it.

There is no single set of model laws out there that can be used.

Even Idaho’s laws are in a constant state of flux. I have seven bills

in front of the legislature right now, and we are working on some

huge bills on the Uniform Trust Act, on special powers of attorney

and so forth.

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So it is an ongoing procedure and, to paraphrase Robert Frost,

we have many promises yet to keep and many miles to go before

we sleep.

Senator CARPER. Another way of saying that is: The road to improvement is always under construction, even in Idaho.

I have one more question if I could, Mr. Chairman. Looking over

my materials, one of the possible results of this hearing would be

to encourage the use of something called the ‘‘representative payee

system’’ wherever possible as an alternative to guardianship. I do

not understand what a ‘‘representative payee system’’ is, and perhaps one of our witnesses could explain that and tell me why that

is a good idea, or not.

The CHAIRMAN. I believe Penelope Hommel might be the person

who could respond to that. She certainly has had some experience

in observing it and tracking it.

Senator CARPER. Ms. Hommel, would you be willing to tackle

that one?

Ms. HOMMEL. I can try. Basically, representative payeeship is a

system that applies to a number of government benefit programs,

for example, Social Security, Supplemental Security Income. It provides that when an individual is unable to handle the funds that

come through that government benefit program, another individual

or representative payee can be appointed to handle those funds. In

cases where financial estate is small, the income is limited pretty

much to the government benefits that we are talking about, it can

be a very important alternative to guardianship that does not deprive the person of the basic right to control their other aspects of

life and their decisions.

Having said that, it is not one of the alternatives that you plan

in advance. It tends to be when you have not done the advance

planning and executed a durable power of attorney, then the representative payee program can come into play.

Among the downfalls or potential downfalls of representative

payeeship are that it looks the procedural safeguards of a court

proceeding; there is not court oversight; and there is clearly the potential for misuse of the funds by the person appointed as representative payee, rather than making sure that they get used for

the benefit of the individual. There have been a number of hearings, and substantial work has been done by people in this room

and others to try and come up with ways to make sure that necessary protections are in place. So it needs to be done very, very

carefully, but it is an alternative to guardianship that maintains

the individual’s rights.

Senator CARPER. Good. Thanks.

Does anyone else want to add to or take away from that response?

Mr. ALDRIDGE. If I could, Senator, one of the problems that we

have had in the State of Idaho is that the representative payee can

sometimes tend to be whomever walks in latest to the local office,

is 98.6, and can sign their name. So we have had situations in

which financial abuse has been coming from a particular individual; we get a conservatorship, we get a new representative payee,

and then that same person walks back in and becomes the new

representative payee. That is a problem in the system.

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Senator CARPER. Good. Thank you all again, and Mr. Chairman,

thanks for the opportunity to ask those questions.

The CHAIRMAN. Tom, thank you very much.

Dr. Armstrong, I understand that a member of your family went

through a legal battle involving the opposition of a guardianship

petition. Can you tell us about it and what you learned from that

experience?

Ms. ARMSTRONG. In California, these are call conservatorship

hearings. The case began when four of seven children ganged together, approached an attorney and spent 5 months working on

their petitions against my mother, who at the time was 72. The petitions claimed also that an emergency existed in the case. Therefore, when she was served with her petitions on a Friday evening,

she had 4 working days to organize a case to defend her freedoms.

In that period of 4 days, she arranged for the help of two attorneys; she had a neuropsychiatric evaluation done at UCLA; she

had to get testimony from all sorts of individuals; she enlisted the

aid of her financial planner, and she appeared in court on a Friday,

told by everyone that the court would throw the case out as frivolous and totally unnecessary the moment she said, ‘‘My four children are angry at me, and I am angry at them.’’ ‘‘This is a family

squabble.’’ But the court did not let her speak. He assigned another date,

and we came back a week or two later, and the court again would

not let her speak. The court said, out of the blue, at the end of the

day: ‘‘I think I will assign a conservator of the estate; after all, it

will not hurt, and it might help.’’ We had time, though, because he

did not have the name of a conservator with him. So my mother

had to hire a corporate litigator who, just before Thanksgiving,

sued to have an evidentiary hearing held so she could be heard. We

spent the entire time before Christmas getting ready for that.

There was finally a hearing on issues of the temporary in December, 21⁄2 days of testimony after Christmas. At the end of that proceeding, the judge announced that obviously, this woman did not

need a conservator, but we are going to file a court date 6 months

hence to see if she needs a permanent conservator.

At this point, it felt like the Mad Hatter’s tea party. Here was

a woman battling for her freedoms, for all of those freedoms listed,

and the judge was saying, ‘‘Oh, she obviously is fine, does not need

a temporary, and there is no emergency, but let us put her under

this stress for 6 more months and see what happens.’’ The fees that were generated by this point in time were outrageous. A court-appointed investigator in the role of a guardian

from the probate volunteer panel investigated my mother prior to

the hearing. They hated one another. When my mother went to

court, she fired that woman. She did not need her—she had two

attorneys. The woman turned to the judge and said, ‘‘I am not

needed in this regard, but I can serve as friend of the court and

help you.’’ The judge permitted her to be on the payroll as amicus

of the court, and that woman made my life, my family’s life, just

turn upside-down and split down the middle. It went on and on for

18 months.

The CHAIRMAN. So from that experience, what conclusions can

you draw that might have put in place from those conclusions a

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law that would have protected your mother from this kind of proceeding?

Ms. ARMSTRONG. I think the fundamental change that needs to

be made is that these proceedings cannot be brought against any

adult whose decisionmaking powers are intact. They do not have to

be reasonable, they do not have to be fashionable, they do not have

to be like the judge’s.

The CHAIRMAN. In other words, in Mr. Aldridge’s words, they can

be ‘‘eccentric’’ if they wish.

Ms. ARMSTRONG. Absolutely. Why can you not be eccentric at 40?

The CHAIRMAN. Some are. [Laughter.]

Ms. ARMSTRONG. Sure. They can lose all their money at 40, and

they do not risk their freedoms. But if this happens when you are

62 and older, you are at risk of losing every freedom you have. I

do not think it is correct to require that decisions be ‘‘reasonable’’

or ‘‘responsible.’’ If they can make the decisions they have always

made, these proceedings should be thrown out of court, and any

proceeding that is brought should either be at the wish of that elderly person as a voluntary conservatorship or guardianship, or it

should be an incredibly limited one, as are the limited proceedings

against the developmentally disabled in the State of California—

terribly respectful of the individual’s unique way of going through

the world.

The CHAIRMAN. In your writings, are there concerns of financial

abuses perpetrated by professional guardians, whether it be excessive fees or direct mismanagement of funds?

Ms. ARMSTRONG. It is rife in the system, absolutely.

The CHAIRMAN. You asked a question—Tom, Ms. Armstrong

asked a question; she has written on these issues and has spent

a good deal of time studying them—what would come of these proceedings. This committee held hearings on this issue in the 1990’s,

primarily to lift awareness, and while some activity has gone on

and some effort is underway, and Ms. Hommel has spoken to that

work being done, one of the things that we found in beginning to

delve into this is the absence of information and records and realities of the extent to which guardianships are used, and we are beginning to pick up a little of that in the testimony offered here

when we hear some of the numbers cited.

Ms. Armstrong, I cannot give you an answer. Obviously, the testimony that you are giving and the record that we are building

here is going to be extremely valuable, and the recommendations,

for example, that Mr. Johns and Mr. Aldridge have made as to

what might be done. Clearly, there is growing evidence that very

large problems exist out there and that bad things are happening

to good people.

Also, as I said in my opening statement, we are on a very large

bubble, if you will, of aging people who are going to and may need

to seek these services in their lifetimes, in numbers heretofore that

we have certainly not experienced in this country. That is part of

what we are doing to build a record to see where we might go with

this, and I am going to do some more probing, as I said with Mr.

Aldridge’s comments—while I want to err on the right and the side

of the State in many of these instances, there is a Federal nexus—

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able amounts of, if you will, while it is the individual’s money, it

is derived through the Federal Treasury, if you will, and there is

a connection and a responsibility there.

This committee certainly continues to plan to pursue this, and I

think it is important that we do, to build a record, to decide whether in fact there are some areas that we can move into to deal in

an appropriate fashion and to begin to not only deal with this but

certainly lower the level of abuse.

Ms. Hommel, do you think that prior planning alone makes an

elderly person guardianship-proof? I say that in relation to Mollie

Orshansky as a good example, from her niece and the attorney representing her who were before us. Could you respond to that, because that is certainly something that we are at business preaching

in society today—plans, trusteeships, all those kinds of things that

relate to an individual’s assets.

Ms. HOMMEL. That is an excellent question. Clearly, as we have

heard, it does not make an individual guardianship-proof. The Mollie Orshansky case is a prime example where a tremendous amount

of planning was done, and the court chose, for a variety of reasons,

to ignore that.

We are seeing—and I think Frank John’s addressed this a bit—

some States beginning to write priority provisions into their guardianship statutes. These provisions may specify that if you have an

advance directive for health care, the person that you have appointed to make your health care decisions will take precedence—

Michigan is an example of a State that has done that—and that

make provisions, if you have done planning for financial alternatives, that those will take precedence over a guardianship.

I think other things that people can do include making sure that

when they do that advance planning, it is done in dialog with the

family, with other interested parties, so that there is communication about what is going on, what is planned, and so that everybody realizes that these mechanisms are in place.

Often, the reason that an advance directive for health care does

not get honored is because the doctor is not aware that it even exists. There are other reasons too. Sometimes the physicians and the

medical personnel will not honor it. But sometimes it is as basic

as that they do not know about its existence.

So advance planning clearly is not a complete protection. But I

think the more people can be educated about it’s importances, the

more they understand and address its limitations, and the more

they recognize the need to make sure that all the other interested

parties are on board with the advance planning that has been

done, then the more likely it is to succeed in avoiding guardianship.

The CHAIRMAN. If you had to guess, how many court-appointed

guardians are handling Social Security money without being appointed as a representative payee? Do you have any feel for that?

Ms. HOMMEL. I’m afraid. I have no idea of the numbers. I would

guess that the majority are handling Social Security funds and

many without being appointed representative payee, but I really

am not aware of data to support that.

The CHAIRMAN. OK. I see a lot of head-nodding out there among

the panel.

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Mr. Aldridge, you mentioned $3 million recovered in Ada County.

Mr. ALDRIDGE. Yes, Senator. What we did first was find out——

The CHAIRMAN. First of all, you and I know the size of Ada County; compared to Los Angeles County, it is a very small count, respectively, is it not?

Mr. ALDRIDGE. That is true. We are very proud of the fact that

the State finally has over a million people, and Ada County is approximately 200,000 to 290,000 today.

The CHAIRMAN. So that is a sizable amount of money in actuality.

Mr. ALDRIDGE. It is a huge amount of money, and I think, Senator, that reflects on what has been mentioned before—the literally

trillions of dollars now in the hands of the elderly and getting

ready to move to the next generation. That is the kind of money

that we are seeing misappropriated. There are also now huge

amounts of money coming through such things as life insurance

and such that is now up for grabs, literally.

So I think that we are at the tip of a very large iceberg. As I

said, ‘‘That was just a voluntary effort by approximately four of us

in our own time, and we recovered that amount of dollars in that

short a period of time.’’

The CHAIRMAN. Well, you are certainly to be commended for the

work that you have done and what you are doing in Idaho as it relates to guardianship reform. What is on the burner now for advanced reform from the work that has already been done?

Mr. ALDRIDGE. There is a series of things yet to be done. First

of all, we need to continue to make guardians and court visitors

more independent. We are looking at potential licensing, bonding

situations, approved lists, truly random appointment. Too often,

the person who is the petitioning attorney in essence picks those

people, and that is not independence.

Second, we need to create more outside methods. We have talked

about trusts and lifetime planning, but those need to be done correctly, and they need to be strong before courts can rely on those.

So we are looking at first of all much strengthening of protection

of the elderly in powers of attorney, financial powers, and also getting good trust acts in place that will again help protect, so the

courts can say instead of doing guardianships, let us use those existing ones.

We also need to clarify a lot of things on how care should be provided. A fundamental problem in the Medicaid area, for example,

which I deal with—I think an answer that follows on a question

to Mr. Johns—is that the current systems says the best way to do

financial planning in Medicaid is to be divorced; you can save much

more assets. But we also need to look at home care. We need to

let the elderly stay at home. Too many things in our society, from

Medicaid to Medicare to tax law to guardianship tend to push people into institutions. We need to have some way to strengthen the

ability to stay at home and be independent.

The CHAIRMAN. Thank you for that.

With the experience you have had in Idaho, what might other

States gain from that in reforming their laws?

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Mr. ALDRIDGE. I think, Senator, two different things. One, they

can look at the process. We are able to, essentially with no dollars,

just by voluntary efforts, make major changes in the statutes.

No. 2, through sharing of experience, sharing of statistics, States

can make better laws. We were able to go to other States. In the

case of California, there are pieces of their law that are good; there

are pieces of their law that are terrible. By looking at that experience, we were able to judge what we should take and what we

should reject.

So I think that that is the major thing to learn, that we need to

pool our knowledge and pool our statistics.

The CHAIRMAN. I had asked Mr. Johns, and he made some recommendations for change in Federal law or new Federal law. Let

me ask you the similar question. Do you see a Federal role in this,

Mr. Aldridge?

Mr. ALDRIDGE. Yes, I think there is a Federal role in all of this.

No. 1, Idaho, as you probably know, is for the first time in a long

time running deficits, and because of that, we have seen literally

the gutting of many of the traditional protections of the elderly

through the Commission on Aging, Adult Protection, and so forth.

We need the ability to fund innovative State programs for protection. We need—even through existing programs, the Older Americans Act, Title IIIB funds, and so forth—to be able to get money

down to the States to do the things that they cannot necessarily

afford.

We are often in a Catch-22 where the legislature says, ‘‘We will

fund the program if you show that it is successful,’’ but we cannot

show that it is successful, because we cannot start it without funds.

I think many of those, if they had seed money from the Federal

side, would eventually become State programs.

The CHAIRMAN. There are a good many more questions I could

ask all of you, but I am running out of time.

Robin, we thank you very much for your testimony. I think everyone gathered from it that you are a very capable, talented, alert

woman, and that the attack or the approach to the attack was

amazing. We hear of horror stories like this, and when I hear

them, I view them in just that context. Certainly, that should not

go on through our legal system today, but it does, tragically

enough. You were able to fight it with some success but also with

substantial injury, and that is tragic.

Again, I thank all of you. I view you as resources to this committee and to our effort here, and we will continue, Ms. Armstrong, to

pursue this, to see if there are not some ways that we can nexus

the Federal law to cause this to be a finer-tuned process that

assures and guarantees the rights of our citizens in a way that obviously is now not being protected and/or guaranteed.

I thank you all very much for that, and the committee will stand

adjourned.

[Whereupon, at 11:52 a.m., the committee was adjourned.]

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