GUARDIANS AND STATE COURTS
The fundamental relationship between a guardian and a protected person is one of empowerment, advocacy and protection. Guardians make decisions pursuant to the best interests / substituted judgment standards. State courts appoint guardians and supervise this relationship with the purpose of protecting the best interests of a protected person. Sufficient court resources for meaningful court review and training of court personnel is essential to fulfilling the court’s – and a guardian’s – responsibilities to protected persons.
Guardians and state courts were the subject of a recent Congressional hearing in Washington, D.C. Like most guardians, I had a huge block of time with nothing to do so I watched the webcast of the hearing and took some notes to pass along to you. The hearing – “Protecting Seniors and Persons with Disabilities – An Examination of Court-Appointed Guardians” – was held on September 22, 2011 before the Senate Committee on the Judiciary, Subcommittee on Administrative Oversight and the Courts. Ultimately, the result is a bill sponsored in the United States Senate by Amy Klobuchar (D-Minnesota) and Bill Nelson (D-Florida).
The vast majority of guardians do good work. The hearing testimony focused on the few “bad apples” and the systemic lack of state court resources to detect and stop those few. Everyone generally agreed courts should have resources and knowledge for that purpose. Here is a brief, summarized list of some of the proposed solutions and obstacles raised at the hearing.
GUARDIANSHIP CASE REVIEW: SOLUTIONS
• Criminal background checks for guardians
• Nationwide database to prevent “bad apples” from appointment in other states
• Uniform, national standards and a court improvement program for review of guardianship cases based on the child abuse model (with federal funding?)
• Technical assistance to state courts by demonstration grant (pilot projects), such as e-filing of guardian reports with “red flags” triggering further court personnel review such as visit or random audit by court personnel
• Expansion of ombudsman program to include other program services at home or in the community
• Social Security Administration should report misuse of funds of representative payees to state courts
GUARDIANSHIP CASE REVIEW: OBSTACLES
• Courts are generally reactive entities
• Everyone has different computer systems
• Lack of court staff to audit accounts or for personal visit (court monitors)
• Lack of coordination among state agencies and courts
• Confidentiality/privacy issues
• Lack of sufficient financial resources
GUARDIANSHIP LEGISLATION: S. 1744
On October 20, 2011, Sen. Klobuchar introduced S. 1744, the Guardian Accountability and Senior Protection Act. The bill provides funding for State courts to assess and improve the handling of proceedings relating to adult guardians and conservators, authorizes the U.S. Attorney General to carry out a pilot project for conducting background checks prior to guardian appointment, and promotes adoption of technology for court monitoring and auditing of guardianship cases.
CONCLUSION
State courts are responsible for supervising guardianship appointment and administration. The number of who will need guardianship protection after 2008 will double to about 70 million people nationwide by approximately 2033. I have not verified that statistic, but if it is true, it is a very compelling reason to ensure that ample resources and tools are available to state courts.
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