Elder Abuse: The Extent of Abuse by Guardians Is Unknown, but Some Measures Exist to Help Protect Older Adults
Published: 2016-11-16T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: The number of older adults, those over age 65, is expected to nearly double in the United States by 2050. When an older adult becomes incapable of making informed decisions, a guardianship may be necessary. Generally, guardianships are legal relationships created when a state court grants one person or entity the authority and responsibility to make decisions in the best interest of an incapacitated individual—which can include an older adult—concerning his or her person or property. While many guardians act in the best interest of persons under guardianship, some have been reported to engage in the abuse of older adults.
GAO was asked to review whether abusive practices by guardians are widespread. This report describes (1) what is known about the extent of elder abuse by guardians; and (2) what measures federal agencies and selected state and local guardianship programs have taken to help protect older adults with guardians.
GAO reviewed relevant research, reports, studies, and other publications issued by organizations with expertise on elder abuse and guardianship issues. GAO also conducted interviews with various guardianship stakeholders including federal agencies such as HHS, six selected state courts, and nongovernmental organizations with expertise in guardianship-related issues. In addition, GAO identified eight closed cases of abuse by guardians in which there was a criminal conviction or finding of civil or administrative liability to use as nongeneralizable illustrative examples. GAO makes no recommendations in this report.
section_title: What GAO Found
paragraphs: The extent of elder abuse by guardians nationally is unknown due to limited data on key factors related to elder abuse by a guardian, such as the numbers of guardians serving older adults, older adults in guardianships, and cases of elder abuse by a guardian. Court officials from six selected states GAO spoke to noted various data limitations that prevent them from being able to provide reliable figures about elder abuse by guardians, including incomplete information about the ages of individuals with guardians. Officials from selected courts and representatives from organizations GAO spoke to described their observations about elder abuse by a guardian, including that one of the most common types appeared to be financial exploitation. Some efforts are under way to try to collect better data on elder abuse and guardianship at the federal, state, and local levels to support decision making and help prevent and address elder abuse by guardians. For example, the Department of Health and Human Services (HHS) plans to launch the National Adult Maltreatment Reporting System—a national reporting system based on data from state Adult Protective Services (APS) agency information systems by early 2017. According to HHS and its contractor, this system has the capability to collect information that could specifically help identify cases of elder abuse where a guardian was involved. GAO also identified state and local initiatives to capture key data points and complaint data as well as identify “red flags” such as unusually high guardian fees or excessive vehicle or dining expenses.
The federal government does not regulate or directly support guardianship, but federal agencies may provide indirect support to state guardianship programs by providing funding for efforts to share best practices and facilitate improved coordination, as well as by sharing information that state and local entities can use related to guardianship. State and local courts have primary responsibility over the guardianship process and, as such, have a role in protecting older adults with guardians from abuse, neglect, and exploitation. Measures taken by selected states to help protect older adults with guardians vary but generally include screening, education, monitoring, and enforcement.

section_title: Letter
paragraphs: In 2014, the U.S. Census Bureau estimated that there were over 46  million older adults—individuals aged 65 and over—in the United States.  The Census Bureau predicts this number will nearly double to 88 million  by 2050. When an older adult becomes incapable of making informed  decisions, a guardianship may be necessary. Generally, guardianships  are legal relationships created when a state court grants one person or  entity the authority and responsibility to make decisions in the best  interest of an incapacitated individual—which can include an older adult— concerning his or her person or property. State and local courts are  generally responsible for overseeing guardianship appointments. The  federal government does not regulate or directly support guardianship,  but federal agencies may provide indirect support to state guardianship  programs by providing funding for efforts to share best practices and  facilitate improved coordination. In addition, some agencies have  established programs that appoint representative payees to manage  federal benefits for individuals who are unable to do so for themselves.  While many guardians act in the best interest of persons under  guardianship, some have been reported to engage in the abuse of older  adults.
Because of your concern about the financial exploitation and other  abuses of older adults, you asked us to review whether abusive practices  by guardians are widespread. This report describes (1) what is known  about the extent of elder abuse by guardians; and (2) what measures  federal agencies and selected state and local guardianship programs  have taken to help protect older adults with guardians from abuse. In  addition, appendix I contains information related to coordination between  federal representative payee programs and state guardianship programs.
To determine what is known about the extent of elder abuse by  guardians, we reviewed relevant research, reports, studies, and other  publications issued by organizations with expertise on elder abuse and  guardianship issues. We also conducted interviews with various  guardianship stakeholders including the following:
Federal agencies including the Department of Health and Human  Services (HHS), Bureau of Consumer Financial Protection (CFPB),  and Department of Justice to discuss efforts to support to state  guardianship programs. We also interviewed officials from the Social  Security Administration (SSA), the Department of Veterans Affairs,  and Office of Personnel Management to discuss their representative  payee programs.
State court officials that oversee or are otherwise knowledgeable on  guardianship-related issues from California, Florida, Minnesota, Ohio,  Texas, and Washington. These states were selected because they  had the largest populations of older adults as well as at least two of  the following criteria: guardian certification requirements, a Working  Interdisciplinary Networks of Guardianship Stakeholders (WINGS)  program, an independent guardianship support program, or citation  during our preliminary interviews as having promising practices or  known problems. In addition, we spoke with an official from the  Conservator Account Auditing Program, a statewide program housed  in the Minnesota court system that audits the periodic accounting  information certain guardians are required to provide to the court. We  also interviewed prosecutors, judges, and county clerk officers from  some of the six states referred to us during our interviews with other  court officials and nongovernmental organizations. The observations  gleaned from interviews with officials from these states are not  generalizable to other states.
Nongovernmental organizations with expertise in guardianship-related  issues. Specifically, we interviewed officials from the American  Bankers Association, American Bar Association, Center for Elders  and the Courts, National Adult Protective Services Association,  National Center for State Courts (NCSC), National Committee for the  Prevention of Elder Abuse, National Association to Stop Guardian  Abuse, National Guardianship Association, Center for Guardianship  Certification, Uniform Law Commission, and Virginia Tech Center for  Gerontology. We selected nongovernmental organizations to interview  by reviewing published materials related to elder abuse by guardians,  conducting a web search using terms related to elder abuse by  guardians, and referrals from our preliminary interviews.
We also identified eight closed cases of elder abuse by guardians in  which there was a criminal conviction or finding of civil or administrative  liability in the last 5 years, to illustrate the types of abuse that guardians  have been found to inflict on older adults under guardianship. Seven of  these cases were identified using public-record searches, while an eighth  was referred to us during one of our interviews. To corroborate key  information about each case, we examined court records, police reports,  or other relevant documents. The illustrative examples we identified are  nongeneralizable and cannot be used to make inferences about the  overall population of guardians.
To identify measures federal agencies and selected state and local  guardianship programs have taken to help protect older adults with  guardians from abuse, we reviewed relevant research, publications, and  other materials on elder abuse and guardianship. We also conducted  interviews with the various guardianship stakeholders described above.
We conducted this performance audit from November 2015 to November  2016 in accordance with generally accepted government auditing  standards. Those standards require that we plan and perform the audit to  obtain sufficient, appropriate evidence to provide a reasonable basis for  our findings and conclusions based on our audit objectives. We believe  that the evidence obtained provides a reasonable basis for our findings  and conclusions based on our audit objectives.
subsections: section_title: Background
subsections: section_title: Guardianship
paragraphs: In general, state courts appoint a guardian for individuals when a judge or  other court official determines that an individual lacks the capacity to  make important decisions regarding his or her own life or property.  Depending on the older adult’s needs and relevant state laws, a court  may appoint a “guardian of the person” who is responsible for making all  decisions for the older adult, or a “guardian of the estate”—or  conservator—who only makes decisions regarding the older adult’s  property.
When state courts appoint guardians, older adults often forfeit some or all  of their decision-making powers. Depending on the terms of the court’s  guardianship appointment, older adults may no longer have the right to  sign contracts, vote, marry or divorce, buy or sell real estate, decide  where to live, or make decisions about their own health care.
Courts can generally appoint different types of guardians including the  following:
Family guardians. According to the Center for Elders and the Courts,  courts favor the appointment of a family member or friend, often called  a family guardian. However, it may not always be possible to find  family or friends to take on this responsibility.
Professional guardians. A professional guardian may be hired for a  fee to be paid by the older adult, and may serve more than one older  adult at a time. Some states require that a professional guardian be  certified. This requirement is described in additional detail later in this  report.
Public guardians. If an older adult is unable to find a capable family  or friend and is unable to afford the fees and associated expenses of  hiring a professional guardian, a public guardian—whose cost is  funded by the state or local government—may be appointed.
section_title: Elder Abuse
paragraphs: Elder abuse is a complex phenomenon. Table 1 describes the types of  elder abuse, according to the National Center on Elder Abuse. Each of  these can affect older adults with guardians, as well as those without. The  categories include physical, sexual, and emotional abuse, as well as  financial exploitation, neglect, and abandonment, but it is not uncommon  for an older adult who has been abused to experience more than one  type of abuse simultaneously.
section_title: The Extent of Elder Abuse by Guardians Is Unknown, and Available Information Varies by State and Locality, but Some Efforts Are Under Way to Gather More Data
subsections: section_title: Courts Lack Comprehensive Data on Older Adults in Guardianships and Elder Abuse by Guardians, but Some Courts Have Limited Information
paragraphs: The extent of elder abuse by guardians nationally is unknown due to  limited data on the numbers of guardians serving older adults, older  adults in guardianships, and cases of elder abuse by a guardian. While  courts are responsible for guardianship appointment and monitoring  activities, among other things, court officials from the six selected states  that we spoke to were not able to provide exact numbers of guardians for  older adults or of older adults with guardians in their states. Also, on the  basis of our interviews with court officials, none of the six selected states  appear to consistently track the number of cases related to elder abuse  by guardians.
Court officials from the six states we spoke with described the varied,  albeit limited, information they have related to elder abuse by guardians  and noted the various data limitations that prevented them from providing  reliable figures on the extent of elder abuse by a guardian.
California. A court official in California stated that while the Judicial  Council of California collects information about requests for restraining  orders to prevent elder abuse, it does not separately identify those  cases alleging elder abuse by a guardian. The council also collects  the number of new guardianships filed each year statewide. The  official stated the number of new adult guardianships is partially  estimated because about half of the courts in the state report a  combined number of guardianships for minors and adults.
Florida. A court official in Florida acknowledged that the court does  not collect guardianship and elder abuse information such as the  number of guardians for older adults, the types of guardians currently  serving in guardianship roles for older adults, and the number of elder  abuse hearings conducted. This official cited lack of funding as a  barrier for collecting this type of information. Detailed information on  financial exploitation specifically may be available at the county level.  For example, officials from one county in Florida told us that it collects  data on the number of guardianships and the assets guardians  control, and also identified the amount of fraud over a 4-year period.
Minnesota. A court official in Minnesota told us that the state  differentiates between guardianship of the person and  conservatorship of the estate. The state collects figures on the (1)  number of guardianship cases, (2) number of conservatorship-only  cases, and (3) number of combined guardianship and conservatorship  cases; and can break these figures out by minors and adults. The  state also has a statewide program housed in the court system—the  Conservator Account Auditing Program—that audits the financial  reports that guardians of the estate (or conservators) are required to  submit electronically through a system called MyMNConservator. This  system can calculate the total assets under court jurisdiction in  Minnesota, which are presented in an annual report. According to the  annual report, the program audits accounts with assets over a certain  threshold at regular intervals and upon referral by the court. However,  one of these officials told us that this system does not track the age of  the individuals with guardians of the estate, so the number of older  adults in this arrangement is not identifiable.
Ohio. An official from the Supreme Court of Ohio told us probate  courts in the state report to the Supreme Court quarterly aggregate  caseload data including the number of pending guardian applications  for adults, the number of new applications for the appointment of  guardians, and the number of guardianships closed, but the data are  not classified by the age of the person under guardianship.  Additionally, although local courts may do so, the Supreme Court of  Ohio does not capture the number of complaints related to  guardianships. Court officials directed us to state Adult Protective  Services (APS) elder abuse complaint data.
Texas. Court officials in Texas told us that every county is required to  submit monthly information to the Office of Court Administration  pertaining to active guardianships. However, officials told us that  some counties do not report any active guardianships (considered to  be underreporting), and some counties overreport on active  guardianships that should have actually been closed, such as when  the person under guardianship is deceased.
Washington. A court official in Washington stated that while she  could provide the number of adult guardianships statewide, she could  not provide this information specifically for older adults. Further, the  state’s Certified Professional Guardian Board publishes the number of  grievances against professional guardians each year its annual  Grievance Report, but does not identify which were for older adults.  This official stated that while the court has case information on abuse  by professional guardians, it does not track information on abuse by  family guardians.
Representatives from nongovernmental organizations we spoke with also  told us that the way cases are classified in the court system makes  collecting data on elder abuse by guardians difficult. For example,  representatives from the Center for Elders and the Courts told us that few  cases appear to be clearly labeled with phrases such as “elder abuse” in  the court system, making it difficult to identify the universe of these cases.  These representatives explained that cases of elder abuse may appear  as other charges, such as assault, battery, or theft. Identifying all cases  involving elder abuse, and more specifically that by a guardian, would  require a difficult manual review of a large volume of court cases. Further,  stakeholders we spoke to noted that instances of elder abuse by  guardians can be difficult to prosecute, reducing the number of known  cases in the legal system and presenting an additional challenge to  identifying the extent of elder abuse by guardians.
Collecting reliable information about court practices related to  guardianship can also be challenging. At the request of SSA, the  Administrative Conference of the United States (ACUS) administered and  analyzed the results of a survey of judges, court staff, and guardians to  review guardianship practices in state courts in 2014. The survey  collected information regarding appointment, monitoring, and discipline of  guardians; caseloads and electronic case-management capabilities; and  court interaction with federal agencies and other organizations.  However, in administering this survey, ACUS was unable to identify a  sample of courts that were representative of the guardianship practices in  all states as no comprehensive list identifying courts or judges that have  oversight of adult guardianship cases exists, which makes it impossible to  generalize the findings to a known universe.
In the absence of reliable data, information on individual cases can  provide some insight into the types of abuse guardians have been found  to inflict on older adults under guardianship. In a 2010 report, we  identified hundreds of allegations of abuse, neglect, and exploitation by  guardians in 45 states and the District of Columbia between 1990 and  2010. At that time, we reviewed 20 of these cases and found that  guardians had stolen or otherwise improperly obtained $5.4 million from  158 incapacitated victims, many of whom were older adults. Table 2  provides a summary of eight new cases in which guardians were found to  have financially exploited or neglected older adults under guardianship in  the last 5 years. Seven of these cases were identified using public-record  searches, while the eighth was referred to us during one of our interviews.  We examined court records, police reports, or other relevant documents  to corroborate key information about each case. The illustrative examples  of selected closed cases of elder abuse by a guardian we identified are  nongeneralizable and cannot be used to make inferences about the  overall population of guardians.
Stakeholders we spoke to described their observations about elder abuse  by a guardian. According to stakeholders, financial exploitation is among  the more common types of elder abuse. Similarly, all eight of the closed  cases of elder abuse by a guardian we found, presented above in table 2,  were examples of financial exploitation. A prosecutor in one of the states  we spoke to shared her observation that the majority of financial  exploitation by professional guardians is done through overcharging for  services that were either not necessary or were never performed. One  representative commented that greed was a driving factor for guardians  to financially exploit persons under guardianship. Some stakeholders we  spoke to also expressed concerns that guardians may become  overwhelmed by their guardianship responsibilities, or may not have the  proper training and education to understand and perform their  guardianship duties.
section_title: Federal, State, and Local Entities Have Some Efforts Under Way to Collect More Information on Elder Abuse by Guardians
paragraphs: Federal, state, and local entities have some efforts under way to try to  collect better data on elder abuse and guardianship to support decision  making and help prevent and address elder abuse by guardians. While  state courts are responsible for overseeing the guardianship process— appointment and screening, education, monitoring, and enforcement— HHS has also taken steps to collect better data on guardianship and elder  abuse. In 2011, we found that existing studies likely underestimated the  full extent of elder abuse and could not be used to track trends. At that  time, we recommended that HHS coordinate with the Attorney General to  conduct a pilot study to collect, compile, and disseminate data on the  feasibility and cost of collecting uniform, reliable APS administrative data  on elder abuse cases from each state, and compile and disseminate  those data nationwide. HHS agreed with our recommendation.
In 2013, HHS’s Administration on Aging began developing the National  Adult Maltreatment Reporting System (NAMRS)—a national reporting  system based on standardized data submitted by state APS agency  information systems. The goal of the system is to provide consistent,  accurate national data on the exploitation and abuse of older adults and  adults with disabilities as reported to state APS agencies. According to  HHS officials and the contractor developing NAMRS, this system will  have the capability to collect information that could help identify cases of  elder abuse where a guardian was involved. For example, NAMRS can  collect information about substitute decision makers, including guardians,  associated with the complaint such as whether there was a substitute  decision maker at the start and end of the investigation, whether the  perpetrator was the older adult’s substitute decision maker, and what  recommendations or actions the state APS agency initiated against the  perpetrator. An official from the Administration on Aging stated that the  pilot phase of the system is complete and the agency hopes to roll it out  for data submissions from all states by early 2017.
Representatives from the National Adult Protective Services Association  stated that NAMRS would provide important information that could inform  the guardianship process once fully implemented. For example, a court  official from Florida suggested that having more information on elder  abuse by a guardian may help guardianship programs decide whether to  place more focus on screening, education, and monitoring of guardians,  and enforcement of policies and laws governing guardians, as described  later in this report.
In addition to this federal effort, some state and local efforts are also  under way to collect better data on elder abuse and guardianship.  However, some of the stakeholders we spoke to acknowledged that these  efforts face funding challenges and require ongoing support.
Compiling data points. Officials in one county in Florida described  an ongoing project they have to extract key data points from  guardianship cases, such as the reason for alleged incapacity, asset  values, and time spent with a guardian, to share with other state  guardianship programs. These officials expect that the data points will  be used to assess the guardianship system in this county, and  suggested that courts could use critical data points on guardianship  such as the average time in guardianship, average burn rate of  assets, or typical fees charged in order to make appropriate data- driven decisions on how to better address cases of potential elder  abuse by a guardian. A court official in Florida told us that in the fall of  2016, the Chief Justice of Florida will appoint a workgroup under the  state’s Judicial Management Council to examine judicial procedures  and best practices related to guardianship to help ensure that courts  are protecting these individuals. Similarly, in Texas, the Office of  Court Administration started the Guardianship Compliance Pilot  Project, which provides additional resources to courts handling  guardianships by supplementing local staff to review compliance with  statutory requirements and by developing an electronic database to  monitor guardianship filings of initial inventory and annual  accountings. Information collected includes the number of courts  involved in the project, the number of guardianships reviewed, the  number of guardianships out of compliance with required reporting,  the number of guardians reported to the court for person under  guardianship well-being or financial exploitation concerns, and the  status of technology developed to monitor guardianship filings.
Collecting complaint data. In Washington, the state’s Certified  Professional Guardianship Board collects complaint and grievance  information about professional guardians. In its annual report, the  state publishes the number of cases opened, closed, investigated,  and in need of investigation. The state also discloses the number of  sanctions, which can include decertification, suspension, reprimand,  prohibition from taking new cases, and admonishment, imposed on  professional guardians. Ohio’s Disciplinary Counsel also reported the  number of grievances filed regarding guardianships in 2015 and  through September 2016. A court official from the Judicial Council of  California told us his state tracks the number of requests for  restraining orders under California’s Elder Abuse and Dependent  Adult Civil Protection Act, which can include those against guardians.
Identifying red flags. Representatives from the National Center for  State Courts (NCSC) are using data collected from Minnesota’s  Conservator Account Auditing Program to identify “red flags,”—or risk  indicators—such as unusually high guardian fees or excessive vehicle  or dining expenses that would help courts detect cases that need  additional review or monitoring. Representatives from the NCSC told  us they are hopeful that these efforts will help courts move forward in  preventing and responding to abuses.
section_title: Federal Agencies Provide Funding to Support Coordination and Sharing Information, While State and Local Entities Oversee the Guardianship Process to Help Protect Older Adults with Guardians from Abuse
subsections: section_title: Federal Agencies’ Measures to Help Protect Older Adults with Guardians Include Providing Funding to Support Coordination and Sharing Information
paragraphs: While the federal government does not regulate or directly support  guardianship, federal agencies, such as HHS, may provide indirect  support to state guardianship programs by providing funding for efforts to  share best practices and facilitate improved coordination. The federal  government also shares information that state and local entities can use  related to guardianship.
subsections: section_title: Providing Funding to Support Coordination
paragraphs: HHS has assumed a national role for funding grants to support  coordination and information sharing that could help educate guardians  and other parties.
HHS has funded grants through the National Legal Resource Center  to share best practices related to guardianship with states, attorneys,  and other interested parties. The grant activities cover a wide range of  guardianship issues related to court oversight and monitoring and  illustrate the ongoing commitment to developing nationwide “Best  Practice” resources on this issue. For example, grant activities have  included providing technical assistance and policy guidance to states  on guardianship issues, oversight and monitoring improvements,  developing standards of practices for guardians, training attorneys  practicing in the area of guardianship law, and developing solutions  for interstate jurisdictional issues involving guardianship cases.
HHS launched the Elder Justice Innovation Grants program in fiscal  year 2016. The purpose of the program is to support foundational  work to create credible benchmarks for elder abuse, neglect, and  exploitation prevention and control, and for program development and  evaluation. HHS expects projects funded by these grants will  contribute to the improvement of the field of elder abuse prevention  and intervention by developing and advancing approaches to address  new and emerging issues related to elder justice, or by establishing  and contributing to the evidence-base of knowledge. In 2016, HHS  identified abuse in guardianship as one of the targeted priority areas  for this program, and according to agency officials awarded three  grants in this target area—each grant is funded at approximately  $1,000,000 over 2 years, September 2016 through September 2018.  At the completion of these grants, HHS expects grantees will have  developed materials and information for further replication and testing.
HHS also funds the National Center on Elder Abuse, which collects  information regarding research, training, best practices, news, and  resources on elder abuse, and provides this information to  policymakers, professionals in the elder justice field, and the public.
In addition, the State Justice Institute has provided grants to various  entities to improve coordination and develop and share best practices.
With help from funding provided by the State Justice Institute and  others, states have developed Working Interdisciplinary Networks of  Guardianship Stakeholders (WINGS) programs to facilitate enhanced  coordination. WINGS programs bring together judges and court staff,  the aging and disability networks, the public and private bar, mental- health agencies, advocacy groups, medical and mental-health  professionals, service providers, family members and individuals  affected by guardianship, and others to drive changes affecting the  ways courts and guardians practice and to improve the lives of older  adults (and others) with guardians. National Guardianship Association  representatives told us that WINGS groups look at the broader picture  of what is happening to address guardianship-related issues across  the country and are not just focused on abuse and neglect. WINGS  programs can make recommendations to state supreme courts and  state legislatures based on their observations. American Bar  Association representatives told us one of the keys to the success of  a WINGS program is ongoing communication. The programs are not  designed to be onetime conversations or a task force, but instead  represent an ongoing communication mechanism to ensure optimal  coordination. During our interviews, feedback for WINGS programs  was consistently positive, and the WINGS group we spoke with  emphatically encouraged other states to develop their own WINGS- like programs and expressed interest in continued funding support for  its program. In addition, one of the goals of grants awarded through  the Elder Justice Innovation Grants program is to establish, expand,  and enhance state WINGS programs to improve the ability of state  and local guardianship systems to develop protections less restrictive  than guardianship and advance guardianship reforms. As of  September 2016, at least 14 states and the District of Columbia have  adopted either WINGS programs or something that resembles these  programs.
section_title: Sharing Information
paragraphs: CFPB has developed materials that can be used by guardians, banks,  and others to help better protect older adults with guardians from abuse.
CFPB has published numerous educational materials to help protect  older adults from financial abuse and exploitation. These include  guides for fiduciaries that lay out the rules and responsibilities for  appropriately handling the finances of another person. CFPB has  also developed guidance for financial institutions. For example, in  2013, CFPB and seven other federal agencies issued guidance on  privacy laws and reporting information on financial exploitation. This  guidance is intended to make it clear that reporting suspected  financial abuse of older adults to appropriate local, state, or federal  agencies does not, in general, violate the privacy provisions of the  Gramm-Leach-Bliley Act or its implementing regulations. CFPB  officials stated that they hoped the 2013 Interagency Guidance will  help financial institutions better understand their ability to report  suspected financial exploitation to relevant federal, state, and local  agencies. Additionally, in 2016, CFPB released an advisory and  related recommendations for financial institutions on preventing and  responding to elder financial exploitation.
section_title: State and Local Measures Can Include Screening, Education, Monitoring, and Enforcement
paragraphs: State and local courts have primary responsibility over the guardianship  process and, hence, have a role in protecting older adults with guardians  from abuse. In 2014, the National Association for Court Management  published an adult guardianship guide with detailed information about  how to plan, develop, and sustain a court guardianship program. This  report laid out detailed suggestions for practices to effectively establish  guardianships, monitor guardians, and train relevant stakeholders.  Guardianship laws can also vary by state, but organizations such as the  Uniform Law Commission—an organization that drafts legislation for  states intended to bring clarity and stability to state statutory law—have  developed model legislation to promote the uniformity of procedures for  appointing guardians and conservators and strengthening due process  protections for individuals in guardianship proceedings and jurisdictional  conflicts. On the basis of our review of published materials and interviews  with various state courts and nongovernmental stakeholders, we  observed that measures states can take to help protect older adults with  guardians vary but generally include screening, education, monitoring,  and enforcement as shown in figure 1.
According to multiple stakeholders we spoke with, an important step of  the guardianship process is for a court to ensure that only those in need  are appointed a guardian. Once the need for a guardian has been  identified, state courts generally are responsible for screening proposed  guardians to help ensure suitable individuals are appointed. On the basis  of our review of published materials and interviews with various state  courts and nongovernmental stakeholders, we observed the following  promising practices and challenges related to screening.
Least-restrictive option. Due to the loss of rights experienced when  an older adult is placed into a guardianship, courts determine whether  a guardian is appropriate. One representative from a state WINGS  program that we spoke with expressed concern that guardianship may  not be appropriate for some persons under guardianship, especially  when the appointment is made for the convenience of others. To  address this concern, this representative told us that courts in her  state have modified court guardianship forms to encourage the use of  less-restrictive alternatives to guardianship, such as a caregiver.
Periodically reexamine guardianship. Some courts periodically  reexamine the appropriateness of the guardianship to ensure that it is  working for the person under guardianship and remains appropriate,  since it can be difficult for an older adult with a guardian to  demonstrate that his or her capacity has been restored.
Criminal history and credit checks. These types of checks provide  an easy and relatively inexpensive way to ensure that potential  guardians do not have a criminal history or financial concerns.
However, one of the stakeholders we spoke with described some  limitations regarding background checks. For example, criminal- background check systems may not present a complete picture for  various reasons, including that many elder abuse cases are not  prosecuted. Even when prospective guardians have been prosecuted,  a number of factors determine whether the criminal history appears in  the background check. For example, a background check may not  always identify a criminal history in another state.
subsections: section_title: Education
paragraphs: Stakeholders we spoke with agreed that education plays an important  role in helping ensure that guardians understand their roles and  responsibilities and appropriately perform their duties. On the basis of our  review of published materials and interviews with various state courts and  nongovernmental stakeholders, we observed the following promising  practices and challenges related to education.
Educational requirements. Education allows guardians to better  understand their roles and responsibilities. For example, a court rule  requires professional guardians in Washington to complete a training  program developed by the state’s Certified Professional Guardian  Board, while a statute generally requires family guardians to complete  video or web-based training. According to state officials, the  professional guardian training consists of a 90-hour course offered by  the University of Washington, while family guardians usually complete  a 2-hour training module. Florida statutes also generally require family  guardians to undergo course work on guardian responsibilities, while  applying more rigorous requirements for professional guardians.  These types of training requirements may help to address  unintentional and nonmalicious mistreatment such as comingling  assets of the guardian and the person under guardianship. Officials at  the National Guardianship Association told us that education about  how to be an effective guardian is very important because guardians  may make bad decisions due to lack of training or education about  their role, and not intentional abuse. However, educational  requirements for guardians are not in place in many states.
Standards of practice and certification. The National Guardianship  Association has developed standards of practice that define a  guardian’s duty to comply with laws and regulations; the guardian’s  relationship with the courts, protected persons, and others; and other  duties to the person under guardianship. Also, the Center for  Guardianship Certification has developed a certification program that  tests a prospective certified guardian’s ability to apply these standards  of practice. Under this certification program, certified guardians must  meet continuing educational requirements to maintain their status as  professional guardians. According to the Center for Guardianship  Certification, 12 states require professional guardians to be certified,  including 8 states that require certification via the use of Center for  Guardianship Certification examinations, as of September 2016.
Educational materials. Courts in all six of the selected states we  spoke to post written guidance for guardians online. These guides  explain the responsibilities and duties associated with becoming a  guardian while providing other potentially useful information. For  example, a guide from California discusses the importance of  separating funds of guardian and of persons under guardianship by  warning guardians that mixing their money with that of the persons  under guardianship could get the guardian in serious trouble.  Minnesota has also made online videos that explain the guardianship  process as well as guardian roles and responsibilities. In conjunction  with the NCSC, North Dakota developed a web-based information  seminar that guardians can use to better understand their  responsibilities. The training is scenario-based and helps the trainee  understand his or her options, and was designed to be easily modified  for replication in other states. One challenge that one official noted is  that it can be difficult to reach family guardians to provide them with  educational materials. Also, even when family guardians can be  reached, one stakeholder suggested that a 30-minute training video is  unlikely to radically enhance guardian performance when a guardian  is faced with some of the more complicated scenarios.
Support for guardians. One of the stakeholders we spoke with  suggested that guardians and persons under guardianship would  benefit from other initiatives, such as states providing guardians with a  mechanism to ask questions and allowing guardians to receive  positive feedback when something went well instead of just warnings  when something went wrong. Another stakeholder told us it would be  beneficial for guardians to interact with one another to finds ways to  achieve better outcomes.
section_title: Monitoring
paragraphs: According to some of the stakeholders we spoke with, most states require  guardians to be monitored, but the level of oversight and specific  requirements vary by state. On the basis of our review of published  materials and interviews with various state courts and nongovernmental  stakeholders, we observed the following promising practices and  challenges related to monitoring.
In person visits and well-being checks. To monitor the person  under guardianship’s personal well-being, one stakeholder told us  courts in every state should periodically send a court investigator to  conduct an unannounced site visit to check on that individual.
Examinations of guardian expenditures. A state court official we  spoke with cautioned that, without effective monitoring, guardians  basically have free access to the person under guardianship’s money  and other officials we interviewed outlined some specific related  measures. For example, an official from one organization suggested  that steps should be taken to help ensure that fees are appropriate for  the services rendered (e.g., attorneys should not charge attorney  rates for grocery shopping), while another representative of a different  organization suggested that fees should be capped to help protect  persons under guardianship. Other related suggestions from various  stakeholders included independent reviews of mandatory annual  financial reports, an initial inventory of the person under  guardianship’s assets, and utilizing effective accounting controls to  help protect that individual’s assets. Technology can be used to  support the oversight process. For example, as previously described,  Minnesota monitors the state’s conservators using an online program  that allows auditors to flag suspicious spending patterns and other  warning signs for potential abuse.
Despite the known importance of monitoring efforts, stakeholders  described how challenges in monitoring guardians often arise from  resource limitations. According to one of the stakeholders we interviewed,  courts often do not have the resources to employ court visitors,  investigators, auditors, or robust case-management systems for tracking  key filings and case events. Another stakeholder told us that guardians  are supposed to submit annual reports about persons under  guardianship, and in many states and counties these reports are filed, but  no one checks to see if the reports have been filed on time or to verify if  what is reported is accurate.
In addition, other monitoring efforts can be limited. For example, a court  official in Washington told us some reviews are paper audits where no  one conducts a site visit to the person under guardianship to verify his or  her well-being. Representatives from the National Guardianship  Association told us that while guardianships have some oversight, there is  significant variation in the level of oversight performed by different states.  The investment in monitoring the activity of guardians is up to local  counties and constrained by resources. One of the recurring themes  these representatives find when they examine guardianship issues is that  states would like to apply more robust oversight, but the states say that  there are not enough resources available to investigate and oversee  these cases.
To help overcome resource limitations, the American Bar Association and  AARP have developed programs courts can use to recruit and train  volunteers to help monitor guardian activities. While there are some costs  associated with these programs, according to stakeholders, they can  reduce the burden on courts for monitoring guardian activities.
section_title: Enforcement
paragraphs: Enforcement activities punish the guardian for his or her abusive actions  against a person under guardianship, deter future abuse by sending the  message that the abuse of older adults by guardians will not be tolerated,  and at times may allow for restitution to the victim. On the basis of our  review of published materials and interviews with various state courts and  nongovernmental stakeholders, we observed the following promising  practices and challenges related to enforcement.
Complaint systems. In addition to providing educational benefits to  guardians, certification systems can provide states with a mechanism  for receiving complaints and addressing noncriminal guardian  performance issues (e.g., not submitting required accountings), while  offering other potential certification-related benefits such as screening  opportunities and continuing education requirements. In states that  certify guardians, complaints may also be directed to the guardianship  certification board. State-operated hotlines can also help identify  cases of abuse. For example, the Palm Beach County Clerk’s  Inspector General set up a hotline that allows the public to report  concerns about guardians via telephone, e-mail, or the Internet, or in- person. From fiscal year 2011 through February 2016, the Palm  Beach County Clerk’s Inspector General reported 516 contacts, 250  of which were actionable. However, multiple stakeholders also  identified some challenges related to complaints. For example, some  of the representatives we spoke with stated that it may be difficult or  impossible for people with diminished capacity to file a complaint  about a guardian, so complaints typically originate from family  members. Also, one of the stakeholders we interviewed told us it is  not always clear where complaints about guardians should be sent,  but that anyone with an elder-abuse related concern could contact law  enforcement agencies or the state APS agency. In addition, this  stakeholder told us that courts may have complaint processes, but it  can be difficult to navigate these processes without effective counsel.
Dedicated investigative resources. Palm Beach County, Florida,  dedicated resources to independently audit guardian spending reports  and also dedicated resources to the investigation and monitoring of  guardianship-related activities, which has had a positive effect,  according to officials there. A prosecutor that we spoke with in San  Diego discussed similar efforts in his jurisdiction, but noted that law- enforcement entities in most cities do not have departments dedicated  to investigating elder abuse.
Appropriate disciplinary measures. Guardianship enforcement  activities can range from removing guardians for poor performance to  prosecution for overt criminal actions. States that apply such  measures appropriately can punish bad actors, obtain restitution for  victims, and deter future abuse. However, there can be investigative  and prosecutorial challenges associated with cases of elder abuse by  a guardian. Stakeholders we spoke to highlighted obstacles that can  obstruct efforts to punish abusive guardians. For example, a  prosecutor in Washington noted that when abuse by guardians takes  the form of overcharging an older adult for the guardian’s services,  because the courts have approved the payments in question it is  virtually impossible for the prosecutor’s office to file charges. This  prosecutor explained that a guardian charged with financial  exploitation in such a case would be able to argue that the fees he or  she obtained were appropriate because they were sanctioned by the  courts; this would almost certainly prevent such a guardian from being  found guilty at trial. Also, a prosecutor in California opined that law- enforcement officials generally feel that when someone is in a position  of trust, law enforcement officials cannot and should not get involved.  Specifically, they feel it is a civil matter that should be handled in the  civil jurisdiction. Other representatives we spoke with raised concerns  about the cost of investigating cases of potential abuse. For example,  representatives from the National Guardianship Association noted the  forensic analysis to identify evidence in these cases can cost $20,000  or more for just one case. Other challenges relate to the penalties  associated with these crimes. For example, an official in Washington  has noted the sentences tend to be insignificant and jail time can  often be avoided. This official also noted that prosecutors will rarely  proceed with cases that do not exceed certain dollar thresholds.
section_title: Agency Comments
paragraphs: We are not making recommendations in this report. We provided a draft  of this report to HHS, CFPB, the Department of Justice, SSA, the  Department of Veterans Affairs, and the Office of Personnel Management  for review and comment. CFPB and SSA provided technical comments,  which we incorporated as appropriate. HHS, the Department of Justice,  the Department of Veterans Affairs, and the Office of Personnel  Management had no comments on this report.
As agreed with your offices, unless you publicly announce its contents  earlier, we plan no further distribution of this report until 30 days from its  issue date. At that time, we will send copies of this report to relevant  congressional committees; the Commissioner of the Social Security  Administration; the Secretary of Veterans Affairs; the Secretary of Health  and Human Services; and other interested parties. In addition, the report  will be available at no charge on the GAO website at http://www.gao.gov.
If you or your staff have any questions concerning this report, please  contact me at (202) 512-6722 or larink@gao.gov. Contact points for our  Offices of Congressional Relations and Public Affairs may be found on  the last page of this report. GAO staff who made key contributions to this  report are listed in appendix II.
section_title: Appendix I: Coordination between Federal Representative Payee Programs and State Guardianship Programs
paragraphs: The Social Security Administration (SSA), the Department of Veterans  Affairs, and the Office of Personnel Management have programs that  appoint representative payees to manage federal benefits received by  individuals who are unable to do so for themselves. Federal agencies  are responsible for oversight of representative payees assigned under  these programs, while state and local courts are responsible for oversight  of guardianship appointments. A representative payee may also be a  guardian, and some beneficiaries with a representative payee may also  have a guardian. According to a white paper prepared for the Elder  Justice Coordinating Council, the representative payee and the guardian  might or might not be the same person or organization. Table 3 shows  the number of beneficiaries who are older adults and have representative  payees, as well as the number of representative payees and court- appointed guardians or conservators that the respective federal agency is  aware of.
We have previously found that, among other things, poor communication  between the courts and federal agencies has enabled guardians to  chronically abuse persons under guardianship and others. In 2011, we  found that information sharing among federal fiduciary programs and  state courts could improve the protection of older adults with guardians.  More specifically, we found that information about SSA’s incapable  beneficiaries and their representative payees could help state courts (1)  avoid appointing individuals who, while serving as SSA representative  payees, have misused beneficiaries’ SSA payments in the past, and (2)  provide courts with potential candidates for guardians when there are no  others available. At that time, we recommended that SSA should  determine how it can, under current law, disclose certain information  about beneficiaries and fiduciaries to state courts upon request,  potentially proposing legislative changes to allow such disclosure. Upon  review of our recommendation, SSA determined it could not disclose  information about SSA beneficiaries and representative payees to state  courts for the purposes of determining guardianship without written  consent because legal limitations prevent the sharing of this information.
While we continue to believe that it is in the best interest of incapable  SSA beneficiaries for the agency to disclose certain information about  beneficiaries and fiduciaries to state courts, SSA officials with whom we  spoke in 2016 maintain that the agency cannot disclose information  regarding SSA beneficiaries and representative payees to courts for the  purposes of determining guardianship issues without written consent,  unless a Privacy Act exception applies. SSA officials also told us they  were not aware of any routine exchanges of information between state  courts and their agency; however SSA does share limited information  about representative payees with other federal agencies when legally  authorized to do so.
Officials from state courts we spoke to also reiterated the need for  increased coordination and communication with federal representative  payee programs. For example, a court official in Washington explained  that it is important for courts to know when there is an issue with a  representative payee who is trying to become a guardian, and it is also  important for SSA to know when there is a problem guardian. Also, court  officials in Ohio described another challenge related to their monitoring  efforts that occurs when they are unaware of significant increases in the  assets of the person under guardianship, caused by the receipt of sizable  back payments paid by SSA.
As described in this report, the Administrative Conference of the United  States administered and analyzed the results of a survey of judges, court  staff, and guardians to review, among other things, court interaction with  federal agencies. In August 2016, SSA officials told us the agency was  using the study to make improvements that will leverage the work of state  courts in SSA’s process for determining whether a representative payee  is necessary. For example, SSA is exploring whether the agency could  automatically appoint guardians—or individuals who are currently serving  in a similar capacity—as representative payees. Additionally, SSA  officials told us they are using the results to identify better ways to  communicate with state and local courts and the guardians appointed by  these entities. These efforts include providing clarification to agency  technicians on permitted disclosures to state and local courts and legal  guardians.
section_title: Appendix II: GAO Contact and Staff Acknowledgments
subsections: section_title: GAO Contact
section_title: Staff Acknowledgments
paragraphs: In addition to the contact named above, Gabrielle Fagan (Assistant  Director), John Ahern, Nada Raoof, and April Van Cleef made key  contributions to this report. Also contributing to the report were Lorraine  Ettaro, Colin Fallon, Maria McMullen, and James Murphy.
section_title: Related GAO Products
paragraphs: Elder Justice: More Federal Coordination and Public Awareness Needed.  GAO-13-498. Washington D.C.: July 10, 2013.
Elder Justice: National Strategy Needed to Effectively Combat Elder  Financial Exploitation. GAO-13-110. Washington D.C.: November 15,  2012.
Incapacitated Adults: Oversight of Federal Fiduciaries and Court- Appointed Guardians Needs Improvement. GAO-11-678. Washington  D.C.: July 22, 2011.
Elder Justice: Stronger Federal Leadership Could Enhance National  Response to Elder Abuse. GAO-11-208. Washington D.C.: March 2,  2011.
Guardianships: Cases of Financial Exploitation, Neglect, and Abuse of  Seniors. GAO-10-1046. Washington D.C.: September 30, 2010.