Report on Abuse by Guardians and the Guardianship Process Released

Senate Select Subcommittee on Aging Reports Dangers

The following is a “nearly” verbatim article from a recent NAELA bulletin:

WASHINGTON (July 22, 2004) - At today's hearing from the Senate Special Committee on Aging's Guardianship Forum, elder law attorney A. Frank Johns testified about ways to improve the current guardianship process, which has allowed some vulnerable seniors to become victims of abuse and neglect. Committee chair Senator Larry Craig (ID), ranking member Senator John Breaux (LA) and representatives from the Government Accountability Office (GAO), along with Johns, past president of the National Academy of Elder Law Attorneys (NAELA), discussed today's results from a significant study on issues related to legal guardians and aging Americans under their care - the first such study GAO has conducted.

This year long study from the GAO began in February 2003, when Senator Craig requested the first ever GAO investigation of the guardianship process after hearing witnesses, including Johns, testify about cases across the nation in which appointed guardians mistreated elders. "When used correctly in very extreme cases, guardianships can be an important tool in securing the physical and financial safety of an incapacitated elderly senior," Chairman Craig said. "At the same time, guardianship can divest an elderly person of all the rights and freedoms we consider important as citizens. For this reason, I asked the GAO to study the accountability of guardians who are charged with managing these funds on behalf of the elderly."

Most guardians do a difficult job very well. The Committee determined that standards between federal and state authorities should be set to ensure the quality of all legal guardian care from coast to coast. Johns, a renowned elder law attorney who counsels seniors and their families on guardianship issues, made an opening statement and then fielded questions. “The wisdom and commitment of Senator Craig was realized when the GAO presented its study and recommendations to this committee in Feb 2003,” said Johns. “The greater benefit is not that another report is being published. The greater benefit is that Senator Craig and his committee will facilitate the connection between federal and state funding sources, and the national guardianship network and its focus to implement these recommendations. With the generous investment of time by these parties, we can add a measure of protection for those Americans of age that need legal guardians in their lives.”

The GAO Report released today includes concrete recommendations and examples of efficient guardianship case tracking and other reforms that may serve as models for states and federal agencies to follow. Today's hearing covered three topics of significance: (1) an examination of state laws that provide for oversight of guardianships; (2) breakdowns in collaboration between state and federal oversight programs that serve incapacitated seniors; and 3) examples of courts that are commendable for their training and monitoring of guardianship programs.

Mr. Johns testimony included recommendations that addressed: (1) what should be done to monitor accountability and enhance state guardianship processes; (2) the establishment of a nationwide database for tracking guardianships; and (3) funding sources that should utilize the National Guardianship Network for implementation. At present little if any data on state guardianships cases exist. Effective tracking of guardianship data would help the state and federal governments access empirical data by which caseloads could be more carefully forecasted and processed. If the number of wards were known, then necessary funding would provide for sufficient staff, and the cost of training and enforcement.

Johns and the National Academy of Elder Law Attorneys are regularly involved in this practice area, having conducted in 2001, "Wingspan: the Second National Guardianship Conference," where invited delegates discussed the issues and voted on the recommendations coming out of the conference. A joint conference in November 2004 will include a presentation of the GAO Report by GAO representatives, and an invitation only "Wingspan Implementation Session" with delegates from over 40 states, as well as the attendance of several state supreme court chief justices.

What is Guardianship?

Guardianship, also referred to as conservatorship, is a legal process, utilized when a person can no longer make or communicate safe or sound decisions about his/her person and/or property. The person may have also become susceptible to fraud or undue influence, leaving them vulnerable to scam artists or identity thieves. For more information, go to the Estate Planning Information Center, and go to the Guardianship page.  For more information, or to join those of us trying to end abuse by guardians and the guardianship process, go to the National Association to Stop Guardian Abuse.

About A. Frank Johns
Frank Johns, JD, CELA, RG, is a nationally recognized authority in Elder Law and Guardianship, past President of and a Fellow in NAELA.

About the National Academy of Elder Law Attorneys (NAELA)
Established in 1987, the National Academy of Elder Law Attorneys (NAELA) was formed to enhance the quality of legal services available to the elderly and people with special needs in the United States. Members of NAELA are attorneys who have demonstrated experience and training in working with the legal problems of aging Americans and disabled individuals. For more information, please contact NAELA at 520.881.4005 or visit www.naela.org.