Guardianships: Little Progress in Ensuring Protection for Incapacitated Elderly People
Published: 2006-09-07T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: The Senate Special Committee on Aging asked GAO to follow up on its 2004 report, Guardianships: Collaboration Needed to Protect Incapacitated Elderly People, GAO-04-655 . This report covered what state courts do to ensure that guardians fulfill their responsibilities, what exemplary guardianship programs look like, and how state courts and federal agencies work together to protect incapacitated elderly people. For this testimony, GAO agreed to (1) provide an overview and update of the findings of this prior work; (2) discuss the status of a series of recommendations GAO made in that report; and (3) discuss the prospects for progress in efforts to strengthen protections for incapacitated elderly people through guardianships. To complete this work, GAO interviewed lawyers and agency officials who have been actively involved in guardianship and representative payee programs, and spoke with officials at some of the courts identified as exemplary in the report.
section_title: What GAO Found
paragraphs: GAO's 2004 report had three principal findings. First, all states have laws requiring courts to oversee guardianships, but court implementation of these laws varies. Second, those courts recognized as exemplary in the area of guardianships focused on training and monitoring. Third, there is little coordination between state courts and federal agencies or among federal agencies regarding guardianships. At present, these findings remain largely the same, but there are some new developments to report. Since GAO's report was issued, some states have strengthened their guardianship programs. For example, Alaska established requirements for licensing of private guardianships and New Jersey and Texas established requirements for the registration of professional guardians. However, there continues to be little coordination between state courts and federal agencies or among federal agencies in the protection of incapacitated people. GAO's report made recommendations to federal agencies, but to date little progress has been made. GAO recommended that SSA convene an interagency study group to increase the ability of representative payee programs to protect federal benefit payments from misuse. Although VA, HHS, and OPM indicated their willingness to participate in such a study group, SSA disagreed with this recommendation, and its position has not changed. Second, GAO recommended that HHS work with national organizations involved in guardianship programs to provide support and leadership to the states for cost-effective pilot and demonstration projects to facilitate state efforts to improve oversight of guardianships and to aid guardians in the fulfillment of their responsibilities. HHS did support a study that surveyed the status of states' guardianship data collection practices. HHS also supported a National Center on Elder Abuse survey of adult protective services agencies to collect information including the extent to which guardians are the alleged perpetrators or the sources of reports about elder abuse. Third, GAO recommended a review of state policies and procedures concerning interstate transfer and recognition of guardianship appointments. A National Conference of Commissioners on Uniform State Laws, held in July of this year, issued a discussion draft for a uniform state law addressing these issues. Following issuance of GAO's 2004 report, a joint conference of professional guardianship organizations agreed on a set of action steps to implement previously-released recommendations from a group of experts on adult guardianship, known as the Wingspan recommendations. Among other things, these action steps call for licensing, certifying, or registering professional guardians.

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