PROTECTING SENIORS AND PERSONS WITH DISABILITIES: AN EXAMINATION OF COURT-APPOINTED GUARDIANS

Editors note: And while all of these august folks were jawing, the Probate Court of 

Cook County was busy robbing the estates of the helpless in our society.  Lucius Verenus, School

Master, ProbateSharks.com

 

 

 

[Senate Hearing 112-147] [From the U.S. Government Printing Office] S. Hrg. 112-147 PROTECTING SENIORS AND PERSONS WITH DISABILITIES: AN EXAMINATION OF COURT-APPOINTED GUARDIANS ======================================================================= HEARING before the SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS of the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED TWELFTH CONGRESS FIRST SESSION __________ SEPTEMBER 22, 2011 __________ Serial No. J-112-44 __________ Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE 71-059 WASHINGTON : 2011 ----------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Printing Office, http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202�09512�091800, or 866�09512�091800 (toll-free). E-mail, gpo@custhelp.com. COMMITTEE ON THE JUDICIARY PATRICK J. LEAHY, Vermont, Chairman HERB KOHL, Wisconsin CHUCK GRASSLEY, Iowa DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah CHUCK SCHUMER, New York JON KYL, Arizona DICK DURBIN, Illinois JEFF SESSIONS, Alabama SHELDON WHITEHOUSE, Rhode Island LINDSEY GRAHAM, South Carolina AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas AL FRANKEN, Minnesota MICHAEL S. LEE, Utah CHRISTOPHER A. COONS, Delaware TOM COBURN, Oklahoma RICHARD BLUMENTHAL, Connecticut Bruce A. Cohen, Chief Counsel and Staff Director Kolan Davis, Republican Chief Counsel and Staff Director ------ Subcommittee on Administrative Oversight and the Courts AMY KLOBUCHAR, Minnesota, Chairman PATRICK J. LEAHY, Vermont JEFF SESSIONS, Alabama HERB KOHL, Wisconsin CHUCK GRASSLEY, Iowa SHELDON WHITEHOUSE, Rhode Island MICHAEL S. LEE, Utah CHRISTOPHER A. COONS, Delaware TOM COBURN, Oklahoma Paige Herwig, Democratic Chief Counsel/Staff Director Danielle Cutrona, Republican Acting Chief Counsel C O N T E N T S ---------- STATEMENTS OF COMMITTEE MEMBERS Page Klobuchar, Hon. Amy, a U.S. Senator from the State of Minnesota.. 1 WITNESSES Baldwin, Robert N., Executive Vice President and General Counsel, National Center for State Courts, Williamsburg, Virginia....... 10 Brown, Kay E., Director, Education, Workforce, and Income Security, U.S. Government Accountability Office, Washington, DC 4 Hollister, Michelle R., Managing Partner, Solkoff Legal, Delray Beach, Florida................................................. 11 Holtz, Deb, State Ombudsman for Long-Term Care, Minnesota Board on Aging, St. Paul, Minnesota.................................. 6 Karp, Naomi, Senior Strategic Policy Advisor, AARP Public Policy Institute, Washington, DC...................................... 8 SUBMISSIONS FOR THE RECORD Baldwin, Robert N., Executive Vice President and General Counsel, National Center for State Courts, Williamsburg, Virginia, statement...................................................... 27 Brown, Kay E., Director, Education, Workforce, and Income Security, U.S. Government Accountability Office, Washington, DC, statement.................................................. 34 Hollister, Michelle R., Managing Partner, Solkoff Legal, Delray Beach, Florida, statement...................................... 45 Holtz, Deb, State Ombudsman for Long-Term Care, Minnesota Board on Aging, St. Paul, Minnesota, statement....................... 49 Karp, Naomi, Senior Strategic Policy Advisor, AARP Public Policy Institute, Washington, DC, statement........................... 22 National Association to Stop Guardian Abuse (NASGA), Elaine Renoire, President, Loogootee, Indiana, September 21, 2001, letter......................................................... 53 Ring, Latifa, President, National Organization To End Guardianship Abuse (NOTEGA), and Founder of the National Elder Abuse and Guardianship Victims Taskforce for Change, statement. 56 Susman, Thomas M., American Bar Association, Washington, DC, statement...................................................... 68 VandeNorth, Deanna S., Saint Paul, Minnesota, September 22, 2011, letter......................................................... 82 PROTECTING SENIORS AND PERSONS WITH DISABILITIES: AN EXAMINATION OF COURT-APPOINTED GUARDIANS ---------- THURSDAY, SEPTEMBER 22, 2011 U.S. Senate, Subcommittee on Administrative Oversight and the Courts, Committee on the Judiciary, Washington, DC. The Subcommittee met, pursuant to notice, at 2:30 p.m., in room SD-226, Dirksen Senate Office Building, Hon. Amy Klobuchar, Chairman of the Subcommittee, presiding. Present: Senators Klobuchar, Franken, and Blumenthal. OPENING STATEMENT OF HON. AMY KLOBUCHAR, A U.S. SENATOR FROM THE STATE OF MINNESOTA Chairman Klobuchar. I am pleased to call this hearing of the Senate Judiciary Subcommittee on Administrative Oversight and the Courts to order. Good afternoon to everyone, and thank you for being here to discuss this very important issue of guardianship. I think we will have some other Senators joining us. I hope we do. A little lonely up here. But I know we have a number of people that care very much about this issue. We have some victims and people in the audience. Thank you for being here. We are very glad to have you here. And we also have some great witnesses here that are going to shed some light on this important issue for all of us. One of society's most important obligations is to care for those who cannot care for themselves. Whether this is an aging parent or a child with a disability, we have a duty to protect those who are most in need of care. Sometimes that obligation requires courts to appoint a guardian or a conservator to make financial and other decisions for people who are not capacity of managing their own affairs, typically the elderly and people with disabilities. In my home State of Minnesota, over 20,000 people have court-appointed guardians or conservators. These guardians are charged with looking out for the best interests of the people under their supervision, but sadly, too often that does not happen. I know these cases are devastating for the victims and the family members involved, and over the last few weeks, our office has heard from victims and advocates, some of whom are in this room, across the country who had heart-breaking stories to tell. These experiences should be shared, and that is why, in addition to our staff collecting them or asking if people are interested in writing them down and submitting testimony for the Congressional Record, we will leave the record open for 1 week. And so please, if you have any questions about that, you can also talk to our staff, to Craig or to Elizabeth back here as well after the hearing. While the vast majority of court-appointed guardians are undoubtedly professional, well-meaning, and law-abiding, there is mounting evidence that some guardians use their position of power for their own gain at the expense of the very people that they were supposed to be looking out for. Now, I had a number of cases when I was county attorney-- which is like being the D.A.--in Hennepin County, which represents about a fourth of the population in Minnesota, and one of the things that I saw there was just the abuses of power that you would see every single day. One of the cases that we had was a case involving a judge-- now, this was not a guardian; it was a trustee. But it was a very similar--hello, Senator Franken. Senator Franken. Hi. Chairman Klobuchar. It was a very similar position of trust that had been violated. In this case you had a judge on the second highest court in Minnesota, the court of appeals, who was a trustee for a young woman who had severe disabilities. She lived in her 20's in a world of dollars and stuffed animals. Her father had asked this man, who was at the time a lawyer, to become her trustee. He had set aside hundreds and hundreds of thousands of dollars. The trustee then became a judge, was promoted to the second highest court in Minnesota, and 1 day--we will never forget it--the guardian and the trustee came to see the lawyers in our office and claimed that this very famous judge had been ripping off the trust. At first we actually did not believe it, and we sent out an investigator, and we looked into it. And I still remember my lawyer calling me on Christmas Eve Day, crouched down in his car, looking at this judge's house, and said, ``There is no way this guy can afford this on a judge's salary.'' What we found out was that he had gone through every penny in the trust that he had been claiming that he was basically putting in new equipment, a bed in her house, and he was buying gold statues in L.A.; that he was putting in floors in her house when he was putting in marble floors in his own house. He went to prison for 5 years, and those are the kinds of cases that have made me very interested in this issue and realize that we cannot just trust the system to work on its own. A 2010 report by the Government Accountability Office found hundreds of allegations of neglect and improper actions by guardians across the country. GAO looked closely at 20 of those cases and discovered that $5.4 million had been improperly taken by guardians from 158 victims. Now, when we are in Washington here dealing with billions of dollars, this may not seem like large sums of money in Washington talk. But to the victims, as you all know, the consequences can be devastating. I read one account of a guardian accused of improperly paying herself thousands of dollars while failing to provide for the basic needs like food and housing of the person she was overseeing. The victim had to be removed from his home by social workers because of the poor conditions in his apartment. In some cases, the guardian may not necessarily be corrupt. They may just be incompetent or negligent. But the results can be just as harmful for the person under their supervision. Given the evidence of the widespread problems, I believe it is a moral imperative that we take action. Clearly, the responsibility for these abuses is with those guardians who do not fulfill their role properly and lawfully, but it falls to the rest of us to make sure that we are doing all we can in terms of oversight and putting the proper policies in place. Currently, the rules for screening guardians before they are appointed and monitoring them afterwards vary from State to State. For instance, the GAO found that only 13 states conduct criminal background checks of guardians, if you can imagine. Also, State and local court systems often do not have the resources to improve their guardianship procedures, although some courts have been taking steps to do so. For example, Ramsey County in the Twin Cities has implemented electronic filing for guardianship accounting reports which can potentially improve the oversight. And Hennepin County, where I worked for 8 years, has a data-sharing agreement with the VA because the VA appoints fiduciaries for some of the same people who have court-appointed guardians, so they are able to double-check on their credentials. In order to bolster these efforts in Minnesota and elsewhere in the country, I have been working on legislation that would promote criminal background checks and e-filing and allow State courts to improve their practices and policies with respect to guardianships. So I am eager to hear from our witnesses today about the problems that we face, and about the potential solutions to ensure that we are on the right track to provide some increased accountability and oversight of this issue. Before we swear the witnesses in, I do not know if you wanted to say a few words, Senator Franken. We have a witness here from Minnesota, Deb Holtz. Senator Franken. I know Deb, and she testified in Maple Grove in a hearing we had on the Older Americans Act, and I thank you for being here. I, too, want to hear all your testimony, and then I will subject to grueling cross- examination. Chairman Klobuchar. It will be kind of like the Google hearing yesterday, just so you are ready. OK. Why don't you stand to be sworn in. Do you affirm that the testimony you are about to give before the Committee will be the truth, the whole truth, and nothing but the truth, so help you God? Ms. Brown. I do. Ms. Holtz. I do. Ms. Karp. I do. Mr. Baldwin. I do. Ms. Hollister. I do. Chairman Klobuchar. Thank you. I am going to introduce our witnesses and then have each of them speak for 5 minutes, and as I mentioned, we also have testimony from victims, and I will be submitting that for the record. [The information referred to appears as a submission for the record.] Chairman Klobuchar. We are first joined by Kay Brown, who serves as the Director of Education, Workforce, and Income Security at the Government Accountability Office, known as GAO. Next, from my home State of Minnesota, we have Deb Holtz. Deb serves as Minnesota's long-term care ombudsman and is the top consumer advocate for seniors. And I know you have been a tireless advocate, Deb, for countless victims of guardianship fraud and abuse, and I look forward to hearing about your work and also the stories of working with victims' family members in Minnesota. We will also hear from Naomi Karp, who is a strategic policy advisor at AARP. Next we have Robert Baldwin, who is the executive vice president and general counsel at the National Center for State Courts. I just threw you in so that they would know we do not have a glass ceiling with our witnesses since the rest of them are women. It is sort of an affirmative action thing. [Laughter.] Chairman Klobuchar. OK. And then finally we have Michelle Hollister, who is managing partner at Solkoff Legal in Delray Beach, Florida. Michelle was the former executive director of the Florida Statewide Public Guardianship Office. So thank you very much, all of you, for coming, and we will start with Kay Brown from the GAO. STATEMENT OF KAY E. BROWN, DIRECTOR, EDUCATION, WORKFORCE, AND INCOME SECURITY, U.S. GOVERNMENT ACCOUNTABILITY OFFICE, WASHINGTON, DC Ms. Brown. Chairman Klobuchar, Senator Franken, thank you for inviting me here today to discuss guardianship, a very important issue that affects the well-being of some of the Nation's most vulnerable individuals. When courts appoint guardians to protect an individual's personal and financial welfare, it is not without risk. Although many guardians faithfully carry out their duties in the best interest of their wards, we know from our work that in some cases guardians have stolen or otherwise improperly obtained assets and sometimes neglected and abused their wards. Today I will cover two issues: the importance of screening and monitoring to reduce the risk of abuse by guardians, and ways in which the Federal Government may be able to help. First, regarding screening and monitoring, most States require courts to follow specific procedures for screening prospective guardians. However, requirements differ among States. For example, 13 require guardians to undergo an independent criminal background check, 9 prohibit convicted felons from serving as guardians, and 2 prohibit convicted criminals; 13 offer guardianship certification. However, these screening procedures are not always effective. For example, using two fictitious identities, one with bad credit and one with a Social Security number of a deceased person, GAO was able to obtain guardianship certification or meet certification requirements in the four test States where we applied. Once guardians are appointed, most States require their performance to be monitored in some way, most often by requiring annual reports. However, these reports are not useful unless they are submitted on a timely basis and reviewed. From our work we know this does not always happen. For example, we have identified cases where the courts failed to oversee guardians after their appointment, allowing abuse and exploitation to continue over a period of years. In a 2004 GAO survey of courts in three States, most indicated they did not have sufficient resources to adequately oversee guardians. AARP reported similar results in a 2007 report. So what can be done? AARP and the American Bar Association have identified a number of promising practices to strengthen court monitoring, such as ways to improve reporting, flag likely problems, and increase in-person visits to incapacitated persons. Some State courts have begun to adopt these practices, but more can be done. Given limited resources for monitoring, courts may be reluctant to invest in new practices without evidence of their feasibility and effectiveness. On my second point regarding ways the Federal Government could help, we have gone on record in the past encouraging the Social Security administration to take steps so its staff can make certain information available to State courts upon request. For example, courts may find it useful to know whether an SSA fiduciary has misused benefits in the past. However, SSA does not believe it has authority to do this and has not taken steps to obtain it. Regarding HHS, its Administration on Aging established the National Legal Resource Center in 2008 to improve the delivery of legal assistance and enhance elder rights protections. The center has supported State courts and national guardianship organizations through training and technical assistance. Although screening and selecting potential guardians are State responsibilities, the Federal Government has an opportunity to help by contributing to provide technical assistance and support evaluations of promising monitoring practices. We recently recommended that HHS support pilot projects to evaluate the feasibility, cost, and effectiveness of such promising practices, and HHS agreed and noted that it could run these pilots under existing demonstration grant authority. In conclusion, governments at all levels are facing severe fiscal constraints. However, the problem of guardianship abuse is real and likely to grow as the number of older adults grows. Actions such as identifying cost-effective, promising practices can help States make the best use of their limited resources and still focus on improving protections for this vulnerable population. This concludes my prepared statement. I am happy to answer any questions. [The prepared statement of Ms. Brown appears as a submission for the record.] Chairman Klobuchar. Thank you very much. Ms. Holtz. STATEMENT OF DEB HOLTZ, STATE OMBUDSMAN FOR LONG-TERM CARE, MINNESOTA BOARD ON AGING, ST. PAUL, MINNESOTA Ms. Holtz. First I need to push the button, and then I can talk. First, I just need to say Minnesota is so honored to have you and Senator Franken represent us. I just need to thank you for your work that you do for us. And thank you for the honor to be here and talk about what we do in the ombudsman office. We are a unique Federal program. We have a mandate to listen to people who have concerns or complaints if they live in nursing facilities or board-and-care homes. And in 1989, Minnesota actually expanded that mandate to include home-care recipients. We are one of only 12 States that does that. At this point in my notes it says to thank Senator Franken for something that he is working on with home care, but since he is going to grill me later and use up my time, I am just going to skip that paragraph. [Laughter.] Ms. Holtz. Last year, over 21,000 people had personal contact from our office, either through our staff or volunteers, and almost 2,500 complaints were responded to. Among those complaints are also systemic issues that we have been looking at, and guardianship is one of them. In 2009, actually, we moved some legislation that reformed some of our State guardianship laws. We are very supportive of your efforts, Senator Klobuchar, to take a look at this and determine what can be used across the country. You took some of my words I was actually going to talk about with the new mandate in the State of taking the pilot project that started in Ramsey County with e-filing for conservatorships that is now going to be statewide. But one of the things that I wanted to share today are some of the stories of the victims. Many of the victims or many of the survivors that we work with in our office are too frail to travel or to tell their stories or have passed away. But I want to emphasize a couple stories today primarily about--you have already heard about some of the abuses that professional guardians take. One of the encouraging things that I think, Senator Klobuchar, you are focusing on also is the speed at which the court reviews cases and how they actually review cases and monitor cases. We are working with an individual right now who is a veteran. He is a veteran who actually is legally blind, and he has some brain injuries, so he really does not understand the whole case that we are working on. But his brother--and some of you may have seen this in the recent media--is disputing a $1,000 bill from the veterans' home that happened several years ago, and because of his refusal to pay that and the interest that has now compounded, this bill is over $100,000, and this veteran is at risk of being discharged from the veterans' home. There is no need for this to have gotten this far, and I do not understand how it gets this far if we have a court process that is supposed to be monitoring and looking at these issues. We had another case several years ago that probably is the saddest case that I have ever encountered in my entire history of working with people with disabilities or people who are seniors, and this was not a professional guardian. This was a family member. And this is not the first time this has happened. Dad had remarried, so it was his second wife, and the daughter just did not like this second wife. And so she was able to get guardianship, and this was before our laws changed in Minnesota. She was able to state that for the best interest of her father, the second wife should not visit the father. The father, unfortunately, was beginning to slip away in dementia, and as he still had some lucid moments, he would question us why his wife was not coming to visit him. ``Why doesn't she love me anymore? Where is she?'' And there was no court review to actually see what decisions the guardian was making and how this was harming this gentleman. He slipped into the final stages of dementia thinking that this woman that he loved and that he had chosen for his second wife did not love him anymore and did not come to visit. I have about 30 seconds, so I guess I have to talk a lot faster. The other case that I wanted to tell you about is just the timeliness of the court. We are working with an individual woman who, in March, showed some signs of dementia, so she was appointed a professional guardian. But family members are arguing about who can visit on what days. Believe it or not, these are the kinds of things that make it to the court. The court has been bringing in experts to determine what would be beneficial for her. Our office came up with a visitation schedule that everyone agreed to except one attorney--one attorney of the entire family members--because it was informal mediation instead of formal mediation. So she is still left without visits from the family. This started in March. I have 1 second--OK. You know, so what I want to say is that the idea of looking at things that have happened in Minnesota and in other States, such as the Bill of Rights for People under Guardianship, when we reformed the guardianship in 2009, one of the best things that we did pertained to these visits. The law used to read that guardians could make a decision about who could visit whom based on the best interest of the ward. Now the burden of proof is switched. We got language in there that says you can only restrict a visitor if you can show that there was harm with this visitor coming there. So what that means is that you and I are entitled to have mom or that brother or that friend that gets into an argument with us and it is just part of that routine that we have. Maybe it is just an argumentative relationship, or it is the ups and downs. How many of us get along with our family members 100 percent of the time? What this law will allow us to do is to enable people to have the visitors, people that mean the most in their lives, come and visit them, and the burden of proof is switched to be now on the guardian. I guess I am going over, so now would be a good time, if you want to grill me, because then I can go into more---- Chairman Klobuchar. We will do that at the end of the panel. Ms. Holtz. OK. Chairman Klobuchar. As fun as that is going to be, we will do that at the end. Ms. Holtz. All right. [The prepared statement of Ms. Holtz appears as a submission for the record.] Chairman Klobuchar. Thank you very much. You just cannot wait for it. We will go on to Ms. Karp. Thank you so much. STATEMENT OF NAOMI KARP, SENIOR STRATEGIC POLICY ADVISOR, AARP PUBLIC POLICY INSTITUTE, WASHINGTON, DC Ms. Karp. Thank you. Chairman Klobuchar, Senator Franken, thank you for giving AARP the opportunity to address the critical topic of protecting older adults with court-appointed guardians. Guardianship is a powerful legal tool that can bring good or ill for an increasing number of vulnerable adults. It provides necessary decisionmakers for people with diminished capacity and protects them from abuse--yet it also removes fundamental rights and may increase the opportunities for abuse of the very people we strive to protect. As you know, a State court judge appoints a guardian who steps into the shoes of an incapacitated adult and makes judgments about property, medical care, living arrangements, lifestyle, and potentially all personal and financial decisions. And the number of these guardianship appointments will continue to grow dramatically, as we know, due to the increasing incidence of Alzheimer's disease, the extended life span of people with developmental disabilities, and the rising incidence of elder abuse because guardianship can be a remedy for elder abuse. The data are scarce, but the National Center for State Courts recently estimated that about 1.5 million adults nationally have guardians. In other words, there are as many people with court-appointed guardians as there are residents in U.S. nursing homes at any given time. And as you also know, our Federal and State governments have longstanding and comprehensive structures in place to protect nursing home residents. But who is guarding the guardians? AARP has long advocated that individuals subject to guardianship receive full due process rights, and that once guardians are appointed, courts fully monitor cases, identify abuses, and sanction guardians who demonstrate malfeasance. When a guardian is abusive, he or she is cloaked in the court's authority and can really be a wolf in Little Red Riding Hood's cape--often with no one protecting grandmother. The victim may not be able to seek help. Abusers often isolate their victims, and people with cognitive impairments are easier to isolate. The majority of guardians are family members, and, of course, many of them do a great job and are very well meaning. But a national elder abuse study found that 5.2 percent of older adults experience financial mistreatment by a family member, and that is only the tip of the iceberg. As mentioned by the GAO, AARP's Public Policy Institute and the ABA Commission on Law and Aging spent 2 years studying how courts monitor guardians. We found many troubling signs, although there are some bright spots. In our 2006 survey of judges, lawyers, guardians, and others in the system, we learned that we have a long way to go. For example, we found that although almost all States require guardians to file annual reports and accounts, one- third of survey respondents said that no one at all at their court verifies these records; and even more troubling, 40 percent of our respondents said that no one is assigned to visit the wards, which is really the only real way to see how they are faring. These are not deliberate failings. The fact is that most courts simply lack the staff, the resources, the knowledge. and the time to effectively monitor. So in 2007, we wanted to look at what was the good news out there, what were the promising practices, and we found that some dedicated courts are making great strides by harnessing technology, using volunteers, and working with the aging network. Some of the key practices are requiring that guardians file prospective plans so that the courts can then later, you know, go back and measure whether they are doing what they said they would do. They have visits to the incapacitated person at home either by staff investigators or trained volunteers who serve as really the eyes and ears of the court, and random audits of accounting and so forth. Senator Klobuchar, as you mentioned already, one of the most promising practices we found back in 2007 was the system of electronic filing in Ramsey County, which was very impressive. And just to explain it a little bit more, the software allows guardians to submit their annual accounting in a uniform online format. The system does the math, thereby avoiding common accounting errors. But more importantly, the system can be set up to have red flags automatically built in, so that, for example, if the closing balance in one year's report does not match the opening balance the next year, or if something extraordinary shows up, automatically a red flag can pop up that is showing that maybe this guardianship has gone bad. And then a human being on the court staff can investigate and, you know, perhaps find a case like the one you described, Senator Klobuchar. So we should encourage the replication of practices like that. I know my time is running out. I just wanted to mention also the criminal background checks you cited, the statistics that so few States are recommending them. We support the notion of criminal background check screening. We think that that is extremely important. In closing, I would just like to quote Judge Steve King, who is a Texas judge with a very comprehensive monitoring program, and Judge King said: ``People will not always do what you expect, but they will do what you inspect.'' And AARP looks forward to working with Members of Congress on both sides of the aisle to help give hard-working courts the opportunity to inspect where needed to protect vulnerable older people. Thank you so much. [The prepared statement of Ms. Karp appears as a submission for the record.] Chairman Klobuchar. Very good. Thank you very much. Also now we have been joined by Senator Blumenthal, former Attorney General of Connecticut, who I know has done work in this area as well. Please, Mr. Baldwin. STATEMENT OF ROBERT N. BALDWIN, EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL, NATIONAL CENTER FOR STATE COURTS, WILLIAMSBURG, VIRGINIA Mr. Baldwin. Madam Chair and members of the Subcommittee, the National Center for State Courts is a private nonprofit corporation formed 40 years ago at the behest of then Chief Justice of the United States, Warren E. Burger. The mission of the center is to promote the rule of law and to improve the administration of justice in the State courts, and we appreciate this opportunity to testify today. Each year, the center produces a report that tries to set forth some of the trends that will be affecting and are affecting the State courts. In 2008, that report highlighted the fact that, in less than 25 years, the senior population-- those over 65 in this country--would more than double to over 70 million people. The report went on to talk about some of the challenges that this demographic shift would bring about and some of the needed actions. Pursuing those challenges and responding to them, the National Center has been working with the National College of Probate Judges to try to update and expand the national standards for probate courts. Given the fact that practice and procedure vary from State to State, these standards provide an opportunity for greater uniformity, consistency, and hopefully continued improvement of the probate practices of our Nation's courts. In addition, the National Center created within its own organization a Center for Courts and the Elderly. That center provides the opportunity for research, for training and educational tools, as well as a forum for judges and aging experts from around the country to get together and talk about these issues, and obviously a website to provide resource information. In 2009, the center conducted a survey, the results of which led to recommendations by the Conference of Chief Justices and the Conference of State Court Administrators Task Force on Courts and the Elderly. Those recommendations are very consistent with the findings of the GAO report and with some of the things that have already been mentioned here today. They include that each State should, in fact, collect information on the number of guardianships, the number of conservatorships, the number of elder abuse cases that are filed, pending, and concluded each year; that each State should adopt and implement procedures to more effectively monitor the performance of conservators and guardians; that each State experiment with technology, in order to document, track, and more effectively monitor these types of cases; and, finally that both Federal, State, and private funds should be sought to support the collection and analysis of national information on guardianship cases and best court practices. This latter point, the need for credible data in this regard, is particularly important. It is very difficult to solve a problem you do not understand or do not have much information about. And as has already been said, we at this point in time can only estimate the number of open guardianship cases and that estimate is 1.5 million. We commend the Senator on your efforts to assess the effects of conducting background checks on prospective conservators as well as introducing the electronic filing of accountings and other reports. These are steps in the right direction. We especially commend the proposed possibility of a Guardianship Court Improvement Program modeled after the Court Improvement Program for Abused and Neglected Children. That program has been exceptionally successful in raising the awareness of this issue, creating collaborations, improving training and collection of data, and improving outcomes. The Conference of Chief Justices and the Conference of State Court Administrators last year endorsed the creation of a Guardianship Court Improvement Program. In addition to assessing the State laws and practices, such a program could also be very effective in leading to the creation of statewide guardianship task forces in those States that do not already have them, to the development of local data collection systems, to the creation of statewide court guardianship coordination positions, and to the development of State court action plans. Implementation of such action plans that were developed under the CIP program for abused and neglected children has been very successful and has contributed to reducing the number of children in foster care. We are confident that such a Guardianship Court Improvement Program would have equally positive benefits for those adults with diminished capacity and for the public in general. We appreciate the opportunity to testify today. Thank you. [The prepared statement of Mr. Baldwin appears as a submission for the record.] Chairman Klobuchar. Thank you very much. I appreciate it. Ms. Hollister. STATEMENT OF MICHELLE R. HOLLISTER, MANAGING PARTNER, SOLKOFF LEGAL, P.A., DELRAY BEACH, FLORIDA Ms. Hollister. Good afternoon. My name is Michelle Hollister. Currently, I am an elder law attorney with Solkoff Legal, P.A., in Delray Beach, Florida. Prior to my joining the Solkoff firm, I was appointed by Governor Bush and continued under Governor Crist as executive director of Florida's Statewide Public Guardianship Office. Thank you for the opportunity to speak to you this afternoon. I begin by asking that everyone in this room consider what happens if you do not make it home tonight. Nobody likes to think about unexpected life-altering injuries, but they occur every day to many people, and these events leave permanent damage. We live good lives, and we try not to think about bad things. We fail to plan because planning means admitting to our own frailty. If you needed assistance, who would you turn to? If something happened to you, who would take care of those who depend on you? We really have two choices: One is to self- delegate so that we pick the people who can do for us if we cannot do for ourselves. The second choice is to do nothing. If we do nothing, every State has provided a system of guardianship. Guardianship is expensive, time-consuming, and very intrusive. Because people often do not do the planning themselves, the demand on the social services and judicial systems continues to grow. Guardians do for others what others can no longer do: make sure doctors are visited, there is a roof over your head, food on the table, clothes on your back, medicines are available, money is in the bank. And the list goes on and on. And with all this responsibility, many States have little or no oversight over guardians. With problems have come attempts at solutions. In the 1980's, the South Florida media began an investigative series on the lack of guardianship oversight. As a result, legislation was adopted that required courts to conduct credit and criminal history reviews of professional guardians and allowed courts to exercise discretion for non-professional guardians. The recognition of this need for guardianship monitoring was significant. Broward County, home to one of the largest populations of older Americans, was compelled to take action though no resources were available. They implemented an investigation fee, along with charging the applicant for the actual costs of the investigation. The program was implemented for all professional and non-professional guardians in Broward County. That was almost 15 years ago. The investigation fee, along with some county dollars and space, funds two full-time staff. This has become one of the few court monitor offices in our State. The office also supports independent contractors that are appointed to provide oversight on an as-needed basis and who are compensated from the assets of the ward. Shortly after establishing legislative authority for the background screening and court monitors, the Florida Legislature created the Statewide Public Guardianship Office. The original purpose of the office was for the State to appoint and oversee public guardians--guardians that serve indigent people that have nobody to assist them. Upon recognition of the need to implement professional guardian oversight, the Statewide Public Guardianship Office was charged with the responsibility to oversee all of the professional guardians, whether for the indigent or not. The goal of the statewide office became to assist the courts in identifying professional guardians who are competent to assume the responsibilities of managing the person and property of others. The basis for the Florida statewide program evolved from a 2003 study done by a Subcommittee of the Florida Supreme Court Commission on Fairness. The report provided guidance on the components of a guardianship monitoring program, and it specified four areas, the foundation being the ongoing screening of guardians. Every professional guardian in Florida must be registered with the Statewide Public Guardianship Office. Registration includes a State and Federal criminal history every 2 years unless the person is electronically printed. There is a review of the professional guardian's credit history every 2 years. Florida was one of the first States to require professional guardians pass an examination in addition to its mandatory 40 hours of instruction. In order to create and implement the exam, the State issued a request for proposals that indicated no monies were available for the initiative. The Center for Guardianship Certification already had an exam in place and, therefore, was able to provide the test at no cost to the State by charging the applicant $250. The professional guardian also pays a small registration fee, currently $35, to the statewide office. In addition to the above, the professional guardian must complete 16 continuing education hours every 2 years and annually submit proof that they have a bond. The Statewide Public Guardianship Office maintains a real-time data base on its website for the judiciary as well as the public to confirm a professional guardian's licensure is current. The remaining components of Florida's monitoring program fall within the purview of the presiding judge. Those areas include: the annual reporting on the well-being of the ward, the annual reporting on the protection of the ward's assets, and ongoing case administration. Florida continues to strive toward guardianship monitoring innovations. Earlier this month, the Palm Beach County Clerk of Court unveiled a guardianship fraud hotline with Florida inspector general staff dedicated to conducting high-level financial audits upon the request of the public and the judiciary. I am conflicted to be here touting Florida's accomplishments because those that work within the area are aware that there is much left to do. Although I am proud of what we did with little resources, please know there is still much more work in this area. I began by asking what would happen if you did not make it home tonight. Accidents happen all the time. The bottom line is that if you do not have advance health care directives and power of attorney documents, chances are great that you will end up the subject of a guardianship. And if so, is anybody watching over your guardian? Thank you for the opportunity to testify. [The prepared statement of Ms. Hollister appears as a submission for the record.] Chairman Klobuchar. Well, thank you very much. That was very interesting testimony, and helpful. I guess I will start where we ended here with you, Ms. Hollister, and just ask you if you think this has improved things. Are there actual statistics? It sounds like Florida--which we all know has a major population of seniors, many of them from Minnesota who like to go down there for the weather. Do you have numbers to show that there was improvement with that coming in? Ms. Hollister. That is one of the challenges that we do not have---- Chairman Klobuchar. You probably did not have a baseline. Ms. Hollister. No. 1, not a baseline, and the technology that is available is not able to capture--we can tell you anecdotally that the courts have reported that there is a decrease similar to the words, I guess, of the Texas judge that now they know they are being inspected. And so anecdotally we know. But to facts and figures, the technology exists, but we do not have the resources to implement. Chairman Klobuchar. And then the public data base that you talked about, what is on there exactly? The credentials or the--what is that? Ms. Hollister. It lets the public as well as the judges know that a professional guardian's licensure is current, so that means that they have passed their credit and criminal history, they have maintained their CEUs, their continuing education, passed the State exam, their bond is current, and that they could be appointed on a case. Chairman Klobuchar. And it sounds like--and maybe we will go to some of the other people, to you, Ms. Karp. I think the statistics that Ms. Brown brought up, that only nine States do the criminal background checks, and so this must be a little more advanced in some of the other States. Or do you have any opinion of what other States are doing? Ms. Karp. My sense really is--oh sorry. I mostly know about what is in their statutes, and it is very surprising to me. I believe it is only 13 States require the background checks. We do not even have an idea how many of them are actually doing them, what systems they have, how they are paying for them, because there is a cost for them. So I do not think we have a picture of what the reality is. We just know what laws are on the books. Unfortunately, in many cases the guardianship laws in general that are on the books are great. There are monitoring requirements. There are a lot of due process requirements. But it is really where the rubber meets the road. How is it being implemented and is anyone really investigating? And with very few resources, in many cases they do not seem to be. Chairman Klobuchar. So is that why--maybe you, Ms. Karp, and Ms. Holtz could chime in, Mr. Baldwin. Is that why that Ramsey County program we talked about where they do the e- filing--I am trying to think of how you--I am sure there are legislative changes that can be made. We have some ideas here that we are working on. But does the e-filing--I would guess with the trigger system, maybe it is a more efficient way of catching these things than having a court monitor every single thing. I do not know if one of you wants to--the court gets involved after there is a trigger, or someone does. Ms. Holtz. Madam Chair, members, it is important to remember with the e-filing that it is only for conservators in Minnesota, so it is only looking at financial accounts. It does not take into account any of the guardianship and the things that actually happen to the person. But I think it has got potential to do that with flags that could be written into a software program for the same thing. Chairman Klobuchar. OK. Ms. Karp? Ms. Karp. And if I could add, I think one of the beauties of it--my understanding, at least when it was developed initially in Ramsey County--was developing the software itself was not that expensive, in the area of $50,000. The problem most courts have is that they do not have the personnel to monitor, to actually read the reports and do any verification and visit. So the benefit of this is it really could save dollars because of the automated feature. And so then when the red flags do pop up, that is when we could put our human capital into really investigating the cases, but we can have those automatic red flags popping up in every case because of the automation of it. Chairman Klobuchar. Mr. Baldwin, the legislation that we are working on would allow for State courts to assess and improve their practices and procedures for appointing and monitoring the guardians. We based this idea to some degree on a court improvement program for child welfare. Could you tell us is there any information about how these court improvement programs have been beneficial? Mr. Baldwin. Yes, I think the Court Improvement Program for Abused and Neglected Children, as I indicated earlier, has been widely accepted as being effective. First of all, they had several national summits that brought together State teams that were charged with creating State individual plans. These were interdisciplinary teams that returned home with an action plan to work not only in the courts but with the social service agencies to improve the processing of those cases which included improving the laws, improving court practices and procedures, and creating a forum for collaboration. So there is a good history, I think, behind how that has worked, so it is, I believe, an exceptionally good model for the program you are talking about, and we believe that would be a very effective way to proceed. Chairman Klobuchar. Very good. We will be working with you moving forward. Ms. Brown, I know that the GAO has issued several reports over the years. You mentioned them in your testimony. Since issuing these reports, what changes have you seen in the way that State courts oversee guardianship procedures? And do you believe that the conditions have worsened for those because of budget constraints across the country for those involved in guardianship? I was just thinking we know--I think the number of seniors in our State are doubling by the year 2030. Maybe I used those stats 10 years ago, but clearly we are seeing--what did we call it?--the ``silver tsunami'' that there is going to be a lot more seniors, and I would think that the needs to make sure that we are monitoring these effectively are going to increase. Ms. Brown? Ms. Brown. When we did this most recent report, one of our tasks was to look back and see what kind of changes the States that we had looked at earlier had made, and I think the bottom line there is the changes were in fits and spurts. States are picking up one idea that they think is good, or they are making a couple changes and then the next year making a few more changes. But the idea of having a set of good practices or a set of standards for courts to follow I think is something that can be really helpful in a situation like this where we have so many different situations because these are State-administered courts. Chairman Klobuchar. Very good. Mr. Baldwin, do you want to add something? Then I am going to turn to Senator Franken. Mr. Baldwin. Yes, I would just add to that I think this is an excellent example of where impetus can be provided by introduction of Federal funds. I know that everyone---- Chairman Klobuchar. Federal legislation. Mr. Baldwin. Yes, right. Chairman Klobuchar. And maybe some funds. [Laughter.] Mr. Baldwin. I know everyone says that, but what the States and the courts many times are in need of is that spark, sowing that seed. There are plenty of good ideas that are out there, and they need that little impetus to get started, and then the momentum builds. I think then you would see some significant improvements. Chairman Klobuchar. I agree. We saw that with everything from domestic abuse with the VAWA bill and that it did training and other things. We see it with everything from seat belt rules that have crossed the States, but just there is still something to setting some standards our federally. Even if they are suggested standards, that can make a difference, and then tying hopefully pilots to them and other things that we can try out. So it just puts it in a bigger way for the other court systems to look at. Thank you. Senator Franken. Senator Franken. Thank you, Madam Chair, and I want to commend you for convening this hearing and for raising awareness on these issues and for your suggestion of pilots, which is a way of getting programs started without across-the- board funding around the country. Many Minnesotans work very hard every day to ensure that our seniors receive the care that they need and deserve, and those people, I believe, are unsung heroes. Unfortunately, we have recently been reminded of instances of elder abuse and that they still occur, and obviously that is unacceptable. And that is why I am planning to introduce legislation to expand the long-term care ombudsman program to serve seniors in the home and community-based setting, in both of those. Ms. Holtz, this is where the grilling starts. As Minnesota's long-term care ombudsman, do you see an opportunity for ombudsmen to have more involvement in protecting vulnerable seniors both in nursing facilities and at home? Ms. Holtz. Absolutely, and I think we have an obligation as more and more people state that they want to remain in their homes and in their communities. So, yes, we have great opportunities and an obligation for it. Senator Franken. Now, all these recent reports of abuse in the State guardianship system demonstrate how important it is for seniors to have explicit rights and protections written into the law. Minnesota has a home care bill of rights, as you mentioned, to protect seniors who receive home care services, and recently passed a bill of rights to address some of the abuses in the guardianship context. What can we all learn from Minnesota's experiences with these bills of rights? Ms. Holtz. You know, we had good success in 2009 getting the bill of rights into legislation, and actually I want to give credit publicly to MAGIC. That is the trade association in Minnesota that looks at--it is the Minnesota Association for Guardianship and Conservatorship, and they really had all of these rights listed already. And when it was suggested that it be put into law, actually some people had questions about it because that makes it a little stricter, and then you have to enforce it. But we came together and we got them into law, and I think one of the things that does, even if you do not have enough funding for enforcement and monitoring, it gives people information, it gives people the power to know that they have choices and they have rights. If they are involuntarily discharged from home care or if they are facing abuse from a guardian, they know that they have rights in the law. They can call our office. They can call others. So it is a first step. It has to be followed by enforcement and monitoring, but it is a good standard to have. And I believe with some of these pilot projects we can do a great service working together across the Nation to look at either some standardized bill of rights or just the idea that every State should have a bill of rights for people. Senator Franken. And not only does the person who--the senior, say, understand these rights, but also their family members, et cetera. Ms. Holtz. Correct. Senator Franken. And that makes a difference. Ms. Holtz. Absolutely. Absolutely. Senator Franken. Ms. Karp, in your testimony you mentioned the importance of identifying local models that can provide best practices for the rest of the country. In Hennepin County in Minnesota, which the Chair was the chief prosecutor of, the local adult protective services program screens guardians and provides them with ongoing training to make sure they are acting in the best interest of seniors and other vulnerable adults. The legislation I was discussing just now with Ms. Holtz recognizes the importance of adult protective services programs and encourages more coordination between adult protective services and the ombudsman program. Do you agree that there is a role for adult protective services and the ombudsman to play in protecting seniors from maltreatment by guardians? Ms. Karp. Absolutely, and we know that adult protective services sometimes is called in to investigate a case when there is no guardian and there is abuse, and then they identify the fact that the person does no longer have the capacity to make decisions for themselves, and they may be the ones to initiate or trigger a guardianship which can be protective. So that is one very important role they can play. On the other hand, when we have a guardian appointed and then there is some evidence that there is abuse by the guardian, adult protective services can be brought in to investigate, and that can lead to sanctions or removal of the guardian. So on many fronts, adult protective services plays a key role. Similarly, the ombudsman, you know, is the other very important State entity that really is charged with protecting people who may not be able to speak for or protect themselves. And with elder abuse, we know that a multidisciplinary approach, whether it be through multidisciplinary teams or task forces, is really the way to go because we need expertise from multiple agencies and professions. So I would totally agree. Senator Franken. Thank you. Ms. Holtz, as I mentioned, the vast majority of people who work in the elder care field do a great job, and I commend them. But a few bad actors is all that it takes to undermine confidence in the system. I recently read an article in the Minneapolis Star Tribune about a lawyer who had been disbarred because she lied to her clients and mismanaged their cases, but who was still appointed to be a guardian for dozens of incapacitated adults. We should not be entrusting our seniors to someone like that, obviously, so my bill would establish quality assurance standards for home and community-based service providers. This would give seniors and their families information about whether a home care worker has received a background check or has been trained. Would standards like this help protect our seniors? Ms. Holtz. Absolutely, and we need more of that, and we need more transparency. Even with the background checks that take place in Minnesota, consumers do not get the information about a misdemeanor or some offense that took place years ago that allows the person to still go through the process. So we need all of that. Your language in your bill would be absolutely necessary and very good. It would prevent a lot. Senator Franken. Thank you. My time is up. Thank you, Madam Chair. Chairman Klobuchar. Thank you very much. Senator Blumenthal. Senator Blumenthal. Thank you, Senator Klobuchar, and thank you all for being here, especially the folks who have come from Minnesota, whose Senators are doing great work on this issue. We really appreciate their leadership, and it is no accident that they are both here today, because, speaking very seriously, they have really championed this cause, as you know. It is just supremely important to all of us around the country who have any contact in this area; whether it is through law enforcement or just plain citizens, children, parents, friends, and neighbors, all are affected. One of my quandaries here is what really is the barrier or barriers, the major barriers, to information sharing. Obviously there are privacy protections. There are institutional obstacles, State, Federal, courts, governments, and so forth. So maybe I can ask each of you what are the three major information-sharing barriers when it comes to background checks or principally the qualifications and bona fides of people who serve in this critical relationship of trust and stewardship with people whom they know, some they do not know. So maybe we can go down the line and ask each of you to comment on that. Ms. Brown. I think you mentioned one of the most important ones, and that has to do with the challenges with data sharing and technology. And one of the things we are finding in many different areas--I do some work in child abuse protections as well, and we saw two things again and again, one being challenges with sharing data because of the systems, the other being challenges with sharing data because of concerns about privacy. I think there is a real fear among some organizations that sharing information about individuals would be detrimental, and so maybe some really important information does not get shared. And the third piece you also mentioned, and that is the collaboration across different organizations. These are multifaceted problems, and trust and support across the community organizations is always a challenge. Senator Blumenthal. Ms. Holtz. Ms. Holtz. I think you would lose a lot of those barriers if you have the consent of the individual or their representative. Our office has a very unique part in the Federal law that states we are not mandated reporters, and that is because when Congress enacted this law decades ago, they wanted one place where seniors could go and share any kind of information and know that it would not be shared without their consent. But we almost always have the consent of them if we are working with adult protection and other systems to get it going. To answer your broader question, though, we need a national system. We need a system, a data base, or a registry so that the bad apple that gets fired in Alabama cannot move up to Minnesota and do the same thing because we did not know about it occurring in another State. So we need a national registry or a national data base. Senator Blumenthal. Rather than just State systems that share information with each other. Ms. Holtz. Absolutely. You still need the State systems that share, but we are seeing too many of these things occurring where people move around from State to State. They prey on the victims. Senator Blumenthal. Thank you. Ms. Karp. I guess the first one I want to stress--and this is something that the GAO has now repeated in, I think, three reports over the last 8 years--is the Social Security Administration representative payee program, the VA fiduciary system, and the State court guardianship systems all frequently serve the same people, and yet there are no systems for them to talk to one another. And, in particular, Social Security has always been extremely concerned that the Privacy Act bars them from sharing the information. On the other hand, everyone knows that if one of those three entities has identified a bad apple, you know, shouldn't we be sharing that with the others? Because why should someone be removed as a Social Security rep payee and still be appointed by the State court to serve as a guardian and have control over the finances? So that is a big barrier, and we need to really clear up that Privacy Act issue and those other barriers. Second, I think within States we have a lack of coordination. We at AARP Public Policy Institute looked at criminal background check screening in home care and the pilot project in long-term care, and one of the issues has been that a lot of different State agencies do background checks on the same individuals, and they are not coordinating, and that is wasting resources. So if we had different State agencies working together, we could save repeated checks; we could share information; we could have a tiered system that makes sense. So coordination within the State. And then, finally, I think just the fact that we lack staff to do all of these things, we lack staff at the courts; we lack staff at APS; we lack staff at the long-term care ombudsman. There is only so far we can go on screening people when we do not have the people to administer the systems and to look and make sure we are keeping the bad apples out. Senator Blumenthal. But even without staff, which requires resources and money, you are saying--and others have confirmed--that some of the institutional or legal barriers are--not easily, but at least they are alterable? Ms. Karp. It would appear to be, and I know that the VA is definitely making some strides to try to coordinate, and so I do not see why we cannot have more of that across---- Senator Blumenthal. The VA is making those efforts, but most of the beneficiaries or most of the people who are in guardianships would be in SSA. Is that correct? Ms. Karp. Probably more---- Senator Blumenthal. I think the GAO report makes that point. Ms. Karp. Yes. Mr. Baldwin. I think the points already made are very good ones, and I might expand on your question just slightly to speak from the courts' perspective. One of the things which is somewhat of an institutional barrier to all of this, not just the sharing of information, is that courts are primarily--in the overwhelming majority of cases they deal with, reactive entities. If a court decides that a plaintiff is entitled to some money and then orders the defendant to pay money, they do not then monitor whether or not the defendant is paying the plaintiff money. They rely upon the defendant to come back to court if he is not being paid the money. If you take that mind-set, in most of what the court does, they do not have in place systems or staff or anything else to monitor, keep up with, investigate, report on, share information with and so forth. So anytime you have a category of cases--many times in the family area--that requires the court to do something that is out of sync with what its normal institutional requirements are, it means creating new systems, creating new ways of doing things, changing mentalities, and more expenditures of money. And so I think that from a court's perspective that is fundamentally something that is dealt with on a piecemeal basis, but it is why things lag behind and take longer to be corrected. Senator Blumenthal. Thank you. My time has actually expired, so, Ms. Hollister, I do not know whether---- Chairman Klobuchar. If you want to ask another question, that is fine. Senator Blumenthal. No, I just want to give Ms. Hollister a chance to answer the question that has already been asked. I did not want to cut you off. Ms. Hollister. Well, I appreciate that. In my experience, what everybody has said has held true for me as well. The only thing that I would add quickly is the problem that we see, ironically, is the technology, that everybody has different systems, and so to get everybody's system to talk to each other actually can be a stumbling block, and that would be the only point I would want to add. Senator Blumenthal. Thank you. Thank you, Madam Chair. Chairman Klobuchar. Very good. Senator Franken, do you have any additional questions? Senator Franken. No, I do not. Thank you, Madam Chair. Chairman Klobuchar. Well, very good. Well, I want to thank everyone because it has been incredibly helpful for all of us to hear the good things. I was thinking with my little story I told[Senate Hearing 112-147] [From the U.S. Government Printing Office] S. Hrg. 112-147 PROTECTING SENIORS AND PERSONS WITH DISABILITIES: AN EXAMINATION OF COURT-APPOINTED GUARDIANS ======================================================================= HEARING before the SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS of the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED TWELFTH CONGRESS FIRST SESSION __________ SEPTEMBER 22, 2011 __________ Serial No. J-112-44 __________ Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE 71-059 WASHINGTON : 2011 ----------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Printing Office, http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202�09512�091800, or 866�09512�091800 (toll-free). E-mail, gpo@custhelp.com. COMMITTEE ON THE JUDICIARY PATRICK J. LEAHY, Vermont, Chairman HERB KOHL, Wisconsin CHUCK GRASSLEY, Iowa DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah CHUCK SCHUMER, New York JON KYL, Arizona DICK DURBIN, Illinois JEFF SESSIONS, Alabama SHELDON WHITEHOUSE, Rhode Island LINDSEY GRAHAM, South Carolina AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas AL FRANKEN, Minnesota MICHAEL S. LEE, Utah CHRISTOPHER A. COONS, Delaware TOM COBURN, Oklahoma RICHARD BLUMENTHAL, Connecticut Bruce A. Cohen, Chief Counsel and Staff Director Kolan Davis, Republican Chief Counsel and Staff Director ------ Subcommittee on Administrative Oversight and the Courts AMY KLOBUCHAR, Minnesota, Chairman PATRICK J. LEAHY, Vermont JEFF SESSIONS, Alabama HERB KOHL, Wisconsin CHUCK GRASSLEY, Iowa SHELDON WHITEHOUSE, Rhode Island MICHAEL S. LEE, Utah CHRISTOPHER A. COONS, Delaware TOM COBURN, Oklahoma Paige Herwig, Democratic Chief Counsel/Staff Director Danielle Cutrona, Republican Acting Chief Counsel C O N T E N T S ---------- STATEMENTS OF COMMITTEE MEMBERS Page Klobuchar, Hon. Amy, a U.S. Senator from the State of Minnesota.. 1 WITNESSES Baldwin, Robert N., Executive Vice President and General Counsel, National Center for State Courts, Williamsburg, Virginia....... 10 Brown, Kay E., Director, Education, Workforce, and Income Security, U.S. Government Accountability Office, Washington, DC 4 Hollister, Michelle R., Managing Partner, Solkoff Legal, Delray Beach, Florida................................................. 11 Holtz, Deb, State Ombudsman for Long-Term Care, Minnesota Board on Aging, St. Paul, Minnesota.................................. 6 Karp, Naomi, Senior Strategic Policy Advisor, AARP Public Policy Institute, Washington, DC...................................... 8 SUBMISSIONS FOR THE RECORD Baldwin, Robert N., Executive Vice President and General Counsel, National Center for State Courts, Williamsburg, Virginia, statement...................................................... 27 Brown, Kay E., Director, Education, Workforce, and Income Security, U.S. Government Accountability Office, Washington, DC, statement.................................................. 34 Hollister, Michelle R., Managing Partner, Solkoff Legal, Delray Beach, Florida, statement...................................... 45 Holtz, Deb, State Ombudsman for Long-Term Care, Minnesota Board on Aging, St. Paul, Minnesota, statement....................... 49 Karp, Naomi, Senior Strategic Policy Advisor, AARP Public Policy Institute, Washington, DC, statement........................... 22 National Association to Stop Guardian Abuse (NASGA), Elaine Renoire, President, Loogootee, Indiana, September 21, 2001, letter......................................................... 53 Ring, Latifa, President, National Organization To End Guardianship Abuse (NOTEGA), and Founder of the National Elder Abuse and Guardianship Victims Taskforce for Change, statement. 56 Susman, Thomas M., American Bar Association, Washington, DC, statement...................................................... 68 VandeNorth, Deanna S., Saint Paul, Minnesota, September 22, 2011, letter......................................................... 82 PROTECTING SENIORS AND PERSONS WITH DISABILITIES: AN EXAMINATION OF COURT-APPOINTED GUARDIANS ---------- THURSDAY, SEPTEMBER 22, 2011 U.S. Senate, Subcommittee on Administrative Oversight and the Courts, Committee on the Judiciary, Washington, DC. The Subcommittee met, pursuant to notice, at 2:30 p.m., in room SD-226, Dirksen Senate Office Building, Hon. Amy Klobuchar, Chairman of the Subcommittee, presiding. Present: Senators Klobuchar, Franken, and Blumenthal. OPENING STATEMENT OF HON. AMY KLOBUCHAR, A U.S. SENATOR FROM THE STATE OF MINNESOTA Chairman Klobuchar. I am pleased to call this hearing of the Senate Judiciary Subcommittee on Administrative Oversight and the Courts to order. Good afternoon to everyone, and thank you for being here to discuss this very important issue of guardianship. I think we will have some other Senators joining us. I hope we do. A little lonely up here. But I know we have a number of people that care very much about this issue. We have some victims and people in the audience. Thank you for being here. We are very glad to have you here. And we also have some great witnesses here that are going to shed some light on this important issue for all of us. One of society's most important obligations is to care for those who cannot care for themselves. Whether this is an aging parent or a child with a disability, we have a duty to protect those who are most in need of care. Sometimes that obligation requires courts to appoint a guardian or a conservator to make financial and other decisions for people who are not capacity of managing their own affairs, typically the elderly and people with disabilities. In my home State of Minnesota, over 20,000 people have court-appointed guardians or conservators. These guardians are charged with looking out for the best interests of the people under their supervision, but sadly, too often that does not happen. I know these cases are devastating for the victims and the family members involved, and over the last few weeks, our office has heard from victims and advocates, some of whom are in this room, across the country who had heart-breaking stories to tell. These experiences should be shared, and that is why, in addition to our staff collecting them or asking if people are interested in writing them down and submitting testimony for the Congressional Record, we will leave the record open for 1 week. And so please, if you have any questions about that, you can also talk to our staff, to Craig or to Elizabeth back here as well after the hearing. While the vast majority of court-appointed guardians are undoubtedly professional, well-meaning, and law-abiding, there is mounting evidence that some guardians use their position of power for their own gain at the expense of the very people that they were supposed to be looking out for. Now, I had a number of cases when I was county attorney-- which is like being the D.A.--in Hennepin County, which represents about a fourth of the population in Minnesota, and one of the things that I saw there was just the abuses of power that you would see every single day. One of the cases that we had was a case involving a judge-- now, this was not a guardian; it was a trustee. But it was a very similar--hello, Senator Franken. Senator Franken. Hi. Chairman Klobuchar. It was a very similar position of trust that had been violated. In this case you had a judge on the second highest court in Minnesota, the court of appeals, who was a trustee for a young woman who had severe disabilities. She lived in her 20's in a world of dollars and stuffed animals. Her father had asked this man, who was at the time a lawyer, to become her trustee. He had set aside hundreds and hundreds of thousands of dollars. The trustee then became a judge, was promoted to the second highest court in Minnesota, and 1 day--we will never forget it--the guardian and the trustee came to see the lawyers in our office and claimed that this very famous judge had been ripping off the trust. At first we actually did not believe it, and we sent out an investigator, and we looked into it. And I still remember my lawyer calling me on Christmas Eve Day, crouched down in his car, looking at this judge's house, and said, ``There is no way this guy can afford this on a judge's salary.'' What we found out was that he had gone through every penny in the trust that he had been claiming that he was basically putting in new equipment, a bed in her house, and he was buying gold statues in L.A.; that he was putting in floors in her house when he was putting in marble floors in his own house. He went to prison for 5 years, and those are the kinds of cases that have made me very interested in this issue and realize that we cannot just trust the system to work on its own. A 2010 report by the Government Accountability Office found hundreds of allegations of neglect and improper actions by guardians across the country. GAO looked closely at 20 of those cases and discovered that $5.4 million had been improperly taken by guardians from 158 victims. Now, when we are in Washington here dealing with billions of dollars, this may not seem like large sums of money in Washington talk. But to the victims, as you all know, the consequences can be devastating. I read one account of a guardian accused of improperly paying herself thousands of dollars while failing to provide for the basic needs like food and housing of the person she was overseeing. The victim had to be removed from his home by social workers because of the poor conditions in his apartment. In some cases, the guardian may not necessarily be corrupt. They may just be incompetent or negligent. But the results can be just as harmful for the person under their supervision. Given the evidence of the widespread problems, I believe it is a moral imperative that we take action. Clearly, the responsibility for these abuses is with those guardians who do not fulfill their role properly and lawfully, but it falls to the rest of us to make sure that we are doing all we can in terms of oversight and putting the proper policies in place. Currently, the rules for screening guardians before they are appointed and monitoring them afterwards vary from State to State. For instance, the GAO found that only 13 states conduct criminal background checks of guardians, if you can imagine. Also, State and local court systems often do not have the resources to improve their guardianship procedures, although some courts have been taking steps to do so. For example, Ramsey County in the Twin Cities has implemented electronic filing for guardianship accounting reports which can potentially improve the oversight. And Hennepin County, where I worked for 8 years, has a data-sharing agreement with the VA because the VA appoints fiduciaries for some of the same people who have court-appointed guardians, so they are able to double-check on their credentials. In order to bolster these efforts in Minnesota and elsewhere in the country, I have been working on legislation that would promote criminal background checks and e-filing and allow State courts to improve their practices and policies with respect to guardianships. So I am eager to hear from our witnesses today about the problems that we face, and about the potential solutions to ensure that we are on the right track to provide some increased accountability and oversight of this issue. Before we swear the witnesses in, I do not know if you wanted to say a few words, Senator Franken. We have a witness here from Minnesota, Deb Holtz. Senator Franken. I know Deb, and she testified in Maple Grove in a hearing we had on the Older Americans Act, and I thank you for being here. I, too, want to hear all your testimony, and then I will subject to grueling cross- examination. Chairman Klobuchar. It will be kind of like the Google hearing yesterday, just so you are ready. OK. Why don't you stand to be sworn in. Do you affirm that the testimony you are about to give before the Committee will be the truth, the whole truth, and nothing but the truth, so help you God? Ms. Brown. I do. Ms. Holtz. I do. Ms. Karp. I do. Mr. Baldwin. I do. Ms. Hollister. I do. Chairman Klobuchar. Thank you. I am going to introduce our witnesses and then have each of them speak for 5 minutes, and as I mentioned, we also have testimony from victims, and I will be submitting that for the record. [The information referred to appears as a submission for the record.] Chairman Klobuchar. We are first joined by Kay Brown, who serves as the Director of Education, Workforce, and Income Security at the Government Accountability Office, known as GAO. Next, from my home State of Minnesota, we have Deb Holtz. Deb serves as Minnesota's long-term care ombudsman and is the top consumer advocate for seniors. And I know you have been a tireless advocate, Deb, for countless victims of guardianship fraud and abuse, and I look forward to hearing about your work and also the stories of working with victims' family members in Minnesota. We will also hear from Naomi Karp, who is a strategic policy advisor at AARP. Next we have Robert Baldwin, who is the executive vice president and general counsel at the National Center for State Courts. I just threw you in so that they would know we do not have a glass ceiling with our witnesses since the rest of them are women. It is sort of an affirmative action thing. [Laughter.] Chairman Klobuchar. OK. And then finally we have Michelle Hollister, who is managing partner at Solkoff Legal in Delray Beach, Florida. Michelle was the former executive director of the Florida Statewide Public Guardianship Office. So thank you very much, all of you, for coming, and we will start with Kay Brown from the GAO. STATEMENT OF KAY E. BROWN, DIRECTOR, EDUCATION, WORKFORCE, AND INCOME SECURITY, U.S. GOVERNMENT ACCOUNTABILITY OFFICE, WASHINGTON, DC Ms. Brown. Chairman Klobuchar, Senator Franken, thank you for inviting me here today to discuss guardianship, a very important issue that affects the well-being of some of the Nation's most vulnerable individuals. When courts appoint guardians to protect an individual's personal and financial welfare, it is not without risk. Although many guardians faithfully carry out their duties in the best interest of their wards, we know from our work that in some cases guardians have stolen or otherwise improperly obtained assets and sometimes neglected and abused their wards. Today I will cover two issues: the importance of screening and monitoring to reduce the risk of abuse by guardians, and ways in which the Federal Government may be able to help. First, regarding screening and monitoring, most States require courts to follow specific procedures for screening prospective guardians. However, requirements differ among States. For example, 13 require guardians to undergo an independent criminal background check, 9 prohibit convicted felons from serving as guardians, and 2 prohibit convicted criminals; 13 offer guardianship certification. However, these screening procedures are not always effective. For example, using two fictitious identities, one with bad credit and one with a Social Security number of a deceased person, GAO was able to obtain guardianship certification or meet certification requirements in the four test States where we applied. Once guardians are appointed, most States require their performance to be monitored in some way, most often by requiring annual reports. However, these reports are not useful unless they are submitted on a timely basis and reviewed. From our work we know this does not always happen. For example, we have identified cases where the courts failed to oversee guardians after their appointment, allowing abuse and exploitation to continue over a period of years. In a 2004 GAO survey of courts in three States, most indicated they did not have sufficient resources to adequately oversee guardians. AARP reported similar results in a 2007 report. So what can be done? AARP and the American Bar Association have identified a number of promising practices to strengthen court monitoring, such as ways to improve reporting, flag likely problems, and increase in-person visits to incapacitated persons. Some State courts have begun to adopt these practices, but more can be done. Given limited resources for monitoring, courts may be reluctant to invest in new practices without evidence of their feasibility and effectiveness. On my second point regarding ways the Federal Government could help, we have gone on record in the past encouraging the Social Security administration to take steps so its staff can make certain information available to State courts upon request. For example, courts may find it useful to know whether an SSA fiduciary has misused benefits in the past. However, SSA does not believe it has authority to do this and has not taken steps to obtain it. Regarding HHS, its Administration on Aging established the National Legal Resource Center in 2008 to improve the delivery of legal assistance and enhance elder rights protections. The center has supported State courts and national guardianship organizations through training and technical assistance. Although screening and selecting potential guardians are State responsibilities, the Federal Government has an opportunity to help by contributing to provide technical assistance and support evaluations of promising monitoring practices. We recently recommended that HHS support pilot projects to evaluate the feasibility, cost, and effectiveness of such promising practices, and HHS agreed and noted that it could run these pilots under existing demonstration grant authority. In conclusion, governments at all levels are facing severe fiscal constraints. However, the problem of guardianship abuse is real and likely to grow as the number of older adults grows. Actions such as identifying cost-effective, promising practices can help States make the best use of their limited resources and still focus on improving protections for this vulnerable population. This concludes my prepared statement. I am happy to answer any questions. [The prepared statement of Ms. Brown appears as a submission for the record.] Chairman Klobuchar. Thank you very much. Ms. Holtz. STATEMENT OF DEB HOLTZ, STATE OMBUDSMAN FOR LONG-TERM CARE, MINNESOTA BOARD ON AGING, ST. PAUL, MINNESOTA Ms. Holtz. First I need to push the button, and then I can talk. First, I just need to say Minnesota is so honored to have you and Senator Franken represent us. I just need to thank you for your work that you do for us. And thank you for the honor to be here and talk about what we do in the ombudsman office. We are a unique Federal program. We have a mandate to listen to people who have concerns or complaints if they live in nursing facilities or board-and-care homes. And in 1989, Minnesota actually expanded that mandate to include home-care recipients. We are one of only 12 States that does that. At this point in my notes it says to thank Senator Franken for something that he is working on with home care, but since he is going to grill me later and use up my time, I am just going to skip that paragraph. [Laughter.] Ms. Holtz. Last year, over 21,000 people had personal contact from our office, either through our staff or volunteers, and almost 2,500 complaints were responded to. Among those complaints are also systemic issues that we have been looking at, and guardianship is one of them. In 2009, actually, we moved some legislation that reformed some of our State guardianship laws. We are very supportive of your efforts, Senator Klobuchar, to take a look at this and determine what can be used across the country. You took some of my words I was actually going to talk about with the new mandate in the State of taking the pilot project that started in Ramsey County with e-filing for conservatorships that is now going to be statewide. But one of the things that I wanted to share today are some of the stories of the victims. Many of the victims or many of the survivors that we work with in our office are too frail to travel or to tell their stories or have passed away. But I want to emphasize a couple stories today primarily about--you have already heard about some of the abuses that professional guardians take. One of the encouraging things that I think, Senator Klobuchar, you are focusing on also is the speed at which the court reviews cases and how they actually review cases and monitor cases. We are working with an individual right now who is a veteran. He is a veteran who actually is legally blind, and he has some brain injuries, so he really does not understand the whole case that we are working on. But his brother--and some of you may have seen this in the recent media--is disputing a $1,000 bill from the veterans' home that happened several years ago, and because of his refusal to pay that and the interest that has now compounded, this bill is over $100,000, and this veteran is at risk of being discharged from the veterans' home. There is no need for this to have gotten this far, and I do not understand how it gets this far if we have a court process that is supposed to be monitoring and looking at these issues. We had another case several years ago that probably is the saddest case that I have ever encountered in my entire history of working with people with disabilities or people who are seniors, and this was not a professional guardian. This was a family member. And this is not the first time this has happened. Dad had remarried, so it was his second wife, and the daughter just did not like this second wife. And so she was able to get guardianship, and this was before our laws changed in Minnesota. She was able to state that for the best interest of her father, the second wife should not visit the father. The father, unfortunately, was beginning to slip away in dementia, and as he still had some lucid moments, he would question us why his wife was not coming to visit him. ``Why doesn't she love me anymore? Where is she?'' And there was no court review to actually see what decisions the guardian was making and how this was harming this gentleman. He slipped into the final stages of dementia thinking that this woman that he loved and that he had chosen for his second wife did not love him anymore and did not come to visit. I have about 30 seconds, so I guess I have to talk a lot faster. The other case that I wanted to tell you about is just the timeliness of the court. We are working with an individual woman who, in March, showed some signs of dementia, so she was appointed a professional guardian. But family members are arguing about who can visit on what days. Believe it or not, these are the kinds of things that make it to the court. The court has been bringing in experts to determine what would be beneficial for her. Our office came up with a visitation schedule that everyone agreed to except one attorney--one attorney of the entire family members--because it was informal mediation instead of formal mediation. So she is still left without visits from the family. This started in March. I have 1 second--OK. You know, so what I want to say is that the idea of looking at things that have happened in Minnesota and in other States, such as the Bill of Rights for People under Guardianship, when we reformed the guardianship in 2009, one of the best things that we did pertained to these visits. The law used to read that guardians could make a decision about who could visit whom based on the best interest of the ward. Now the burden of proof is switched. We got language in there that says you can only restrict a visitor if you can show that there was harm with this visitor coming there. So what that means is that you and I are entitled to have mom or that brother or that friend that gets into an argument with us and it is just part of that routine that we have. Maybe it is just an argumentative relationship, or it is the ups and downs. How many of us get along with our family members 100 percent of the time? What this law will allow us to do is to enable people to have the visitors, people that mean the most in their lives, come and visit them, and the burden of proof is switched to be now on the guardian. I guess I am going over, so now would be a good time, if you want to grill me, because then I can go into more---- Chairman Klobuchar. We will do that at the end of the panel. Ms. Holtz. OK. Chairman Klobuchar. As fun as that is going to be, we will do that at the end. Ms. Holtz. All right. [The prepared statement of Ms. Holtz appears as a submission for the record.] Chairman Klobuchar. Thank you very much. You just cannot wait for it. We will go on to Ms. Karp. Thank you so much. STATEMENT OF NAOMI KARP, SENIOR STRATEGIC POLICY ADVISOR, AARP PUBLIC POLICY INSTITUTE, WASHINGTON, DC Ms. Karp. Thank you. Chairman Klobuchar, Senator Franken, thank you for giving AARP the opportunity to address the critical topic of protecting older adults with court-appointed guardians. Guardianship is a powerful legal tool that can bring good or ill for an increasing number of vulnerable adults. It provides necessary decisionmakers for people with diminished capacity and protects them from abuse--yet it also removes fundamental rights and may increase the opportunities for abuse of the very people we strive to protect. As you know, a State court judge appoints a guardian who steps into the shoes of an incapacitated adult and makes judgments about property, medical care, living arrangements, lifestyle, and potentially all personal and financial decisions. And the number of these guardianship appointments will continue to grow dramatically, as we know, due to the increasing incidence of Alzheimer's disease, the extended life span of people with developmental disabilities, and the rising incidence of elder abuse because guardianship can be a remedy for elder abuse. The data are scarce, but the National Center for State Courts recently estimated that about 1.5 million adults nationally have guardians. In other words, there are as many people with court-appointed guardians as there are residents in U.S. nursing homes at any given time. And as you also know, our Federal and State governments have longstanding and comprehensive structures in place to protect nursing home residents. But who is guarding the guardians? AARP has long advocated that individuals subject to guardianship receive full due process rights, and that once guardians are appointed, courts fully monitor cases, identify abuses, and sanction guardians who demonstrate malfeasance. When a guardian is abusive, he or she is cloaked in the court's authority and can really be a wolf in Little Red Riding Hood's cape--often with no one protecting grandmother. The victim may not be able to seek help. Abusers often isolate their victims, and people with cognitive impairments are easier to isolate. The majority of guardians are family members, and, of course, many of them do a great job and are very well meaning. But a national elder abuse study found that 5.2 percent of older adults experience financial mistreatment by a family member, and that is only the tip of the iceberg. As mentioned by the GAO, AARP's Public Policy Institute and the ABA Commission on Law and Aging spent 2 years studying how courts monitor guardians. We found many troubling signs, although there are some bright spots. In our 2006 survey of judges, lawyers, guardians, and others in the system, we learned that we have a long way to go. For example, we found that although almost all States require guardians to file annual reports and accounts, one- third of survey respondents said that no one at all at their court verifies these records; and even more troubling, 40 percent of our respondents said that no one is assigned to visit the wards, which is really the only real way to see how they are faring. These are not deliberate failings. The fact is that most courts simply lack the staff, the resources, the knowledge. and the time to effectively monitor. So in 2007, we wanted to look at what was the good news out there, what were the promising practices, and we found that some dedicated courts are making great strides by harnessing technology, using volunteers, and working with the aging network. Some of the key practices are requiring that guardians file prospective plans so that the courts can then later, you know, go back and measure whether they are doing what they said they would do. They have visits to the incapacitated person at home either by staff investigators or trained volunteers who serve as really the eyes and ears of the court, and random audits of accounting and so forth. Senator Klobuchar, as you mentioned already, one of the most promising practices we found back in 2007 was the system of electronic filing in Ramsey County, which was very impressive. And just to explain it a little bit more, the software allows guardians to submit their annual accounting in a uniform online format. The system does the math, thereby avoiding common accounting errors. But more importantly, the system can be set up to have red flags automatically built in, so that, for example, if the closing balance in one year's report does not match the opening balance the next year, or if something extraordinary shows up, automatically a red flag can pop up that is showing that maybe this guardianship has gone bad. And then a human being on the court staff can investigate and, you know, perhaps find a case like the one you described, Senator Klobuchar. So we should encourage the replication of practices like that. I know my time is running out. I just wanted to mention also the criminal background checks you cited, the statistics that so few States are recommending them. We support the notion of criminal background check screening. We think that that is extremely important. In closing, I would just like to quote Judge Steve King, who is a Texas judge with a very comprehensive monitoring program, and Judge King said: ``People will not always do what you expect, but they will do what you inspect.'' And AARP looks forward to working with Members of Congress on both sides of the aisle to help give hard-working courts the opportunity to inspect where needed to protect vulnerable older people. Thank you so much. [The prepared statement of Ms. Karp appears as a submission for the record.] Chairman Klobuchar. Very good. Thank you very much. Also now we have been joined by Senator Blumenthal, former Attorney General of Connecticut, who I know has done work in this area as well. Please, Mr. Baldwin. STATEMENT OF ROBERT N. BALDWIN, EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL, NATIONAL CENTER FOR STATE COURTS, WILLIAMSBURG, VIRGINIA Mr. Baldwin. Madam Chair and members of the Subcommittee, the National Center for State Courts is a private nonprofit corporation formed 40 years ago at the behest of then Chief Justice of the United States, Warren E. Burger. The mission of the center is to promote the rule of law and to improve the administration of justice in the State courts, and we appreciate this opportunity to testify today. Each year, the center produces a report that tries to set forth some of the trends that will be affecting and are affecting the State courts. In 2008, that report highlighted the fact that, in less than 25 years, the senior population-- those over 65 in this country--would more than double to over 70 million people. The report went on to talk about some of the challenges that this demographic shift would bring about and some of the needed actions. Pursuing those challenges and responding to them, the National Center has been working with the National College of Probate Judges to try to update and expand the national standards for probate courts. Given the fact that practice and procedure vary from State to State, these standards provide an opportunity for greater uniformity, consistency, and hopefully continued improvement of the probate practices of our Nation's courts. In addition, the National Center created within its own organization a Center for Courts and the Elderly. That center provides the opportunity for research, for training and educational tools, as well as a forum for judges and aging experts from around the country to get together and talk about these issues, and obviously a website to provide resource information. In 2009, the center conducted a survey, the results of which led to recommendations by the Conference of Chief Justices and the Conference of State Court Administrators Task Force on Courts and the Elderly. Those recommendations are very consistent with the findings of the GAO report and with some of the things that have already been mentioned here today. They include that each State should, in fact, collect information on the number of guardianships, the number of conservatorships, the number of elder abuse cases that are filed, pending, and concluded each year; that each State should adopt and implement procedures to more effectively monitor the performance of conservators and guardians; that each State experiment with technology, in order to document, track, and more effectively monitor these types of cases; and, finally that both Federal, State, and private funds should be sought to support the collection and analysis of national information on guardianship cases and best court practices. This latter point, the need for credible data in this regard, is particularly important. It is very difficult to solve a problem you do not understand or do not have much information about. And as has already been said, we at this point in time can only estimate the number of open guardianship cases and that estimate is 1.5 million. We commend the Senator on your efforts to assess the effects of conducting background checks on prospective conservators as well as introducing the electronic filing of accountings and other reports. These are steps in the right direction. We especially commend the proposed possibility of a Guardianship Court Improvement Program modeled after the Court Improvement Program for Abused and Neglected Children. That program has been exceptionally successful in raising the awareness of this issue, creating collaborations, improving training and collection of data, and improving outcomes. The Conference of Chief Justices and the Conference of State Court Administrators last year endorsed the creation of a Guardianship Court Improvement Program. In addition to assessing the State laws and practices, such a program could also be very effective in leading to the creation of statewide guardianship task forces in those States that do not already have them, to the development of local data collection systems, to the creation of statewide court guardianship coordination positions, and to the development of State court action plans. Implementation of such action plans that were developed under the CIP program for abused and neglected children has been very successful and has contributed to reducing the number of children in foster care. We are confident that such a Guardianship Court Improvement Program would have equally positive benefits for those adults with diminished capacity and for the public in general. We appreciate the opportunity to testify today. Thank you. [The prepared statement of Mr. Baldwin appears as a submission for the record.] Chairman Klobuchar. Thank you very much. I appreciate it. Ms. Hollister. STATEMENT OF MICHELLE R. HOLLISTER, MANAGING PARTNER, SOLKOFF LEGAL, P.A., DELRAY BEACH, FLORIDA Ms. Hollister. Good afternoon. My name is Michelle Hollister. Currently, I am an elder law attorney with Solkoff Legal, P.A., in Delray Beach, Florida. Prior to my joining the Solkoff firm, I was appointed by Governor Bush and continued under Governor Crist as executive director of Florida's Statewide Public Guardianship Office. Thank you for the opportunity to speak to you this afternoon. I begin by asking that everyone in this room consider what happens if you do not make it home tonight. Nobody likes to think about unexpected life-altering injuries, but they occur every day to many people, and these events leave permanent damage. We live good lives, and we try not to think about bad things. We fail to plan because planning means admitting to our own frailty. If you needed assistance, who would you turn to? If something happened to you, who would take care of those who depend on you? We really have two choices: One is to self- delegate so that we pick the people who can do for us if we cannot do for ourselves. The second choice is to do nothing. If we do nothing, every State has provided a system of guardianship. Guardianship is expensive, time-consuming, and very intrusive. Because people often do not do the planning themselves, the demand on the social services and judicial systems continues to grow. Guardians do for others what others can no longer do: make sure doctors are visited, there is a roof over your head, food on the table, clothes on your back, medicines are available, money is in the bank. And the list goes on and on. And with all this responsibility, many States have little or no oversight over guardians. With problems have come attempts at solutions. In the 1980's, the South Florida media began an investigative series on the lack of guardianship oversight. As a result, legislation was adopted that required courts to conduct credit and criminal history reviews of professional guardians and allowed courts to exercise discretion for non-professional guardians. The recognition of this need for guardianship monitoring was significant. Broward County, home to one of the largest populations of older Americans, was compelled to take action though no resources were available. They implemented an investigation fee, along with charging the applicant for the actual costs of the investigation. The program was implemented for all professional and non-professional guardians in Broward County. That was almost 15 years ago. The investigation fee, along with some county dollars and space, funds two full-time staff. This has become one of the few court monitor offices in our State. The office also supports independent contractors that are appointed to provide oversight on an as-needed basis and who are compensated from the assets of the ward. Shortly after establishing legislative authority for the background screening and court monitors, the Florida Legislature created the Statewide Public Guardianship Office. The original purpose of the office was for the State to appoint and oversee public guardians--guardians that serve indigent people that have nobody to assist them. Upon recognition of the need to implement professional guardian oversight, the Statewide Public Guardianship Office was charged with the responsibility to oversee all of the professional guardians, whether for the indigent or not. The goal of the statewide office became to assist the courts in identifying professional guardians who are competent to assume the responsibilities of managing the person and property of others. The basis for the Florida statewide program evolved from a 2003 study done by a Subcommittee of the Florida Supreme Court Commission on Fairness. The report provided guidance on the components of a guardianship monitoring program, and it specified four areas, the foundation being the ongoing screening of guardians. Every professional guardian in Florida must be registered with the Statewide Public Guardianship Office. Registration includes a State and Federal criminal history every 2 years unless the person is electronically printed. There is a review of the professional guardian's credit history every 2 years. Florida was one of the first States to require professional guardians pass an examination in addition to its mandatory 40 hours of instruction. In order to create and implement the exam, the State issued a request for proposals that indicated no monies were available for the initiative. The Center for Guardianship Certification already had an exam in place and, therefore, was able to provide the test at no cost to the State by charging the applicant $250. The professional guardian also pays a small registration fee, currently $35, to the statewide office. In addition to the above, the professional guardian must complete 16 continuing education hours every 2 years and annually submit proof that they have a bond. The Statewide Public Guardianship Office maintains a real-time data base on its website for the judiciary as well as the public to confirm a professional guardian's licensure is current. The remaining components of Florida's monitoring program fall within the purview of the presiding judge. Those areas include: the annual reporting on the well-being of the ward, the annual reporting on the protection of the ward's assets, and ongoing case administration. Florida continues to strive toward guardianship monitoring innovations. Earlier this month, the Palm Beach County Clerk of Court unveiled a guardianship fraud hotline with Florida inspector general staff dedicated to conducting high-level financial audits upon the request of the public and the judiciary. I am conflicted to be here touting Florida's accomplishments because those that work within the area are aware that there is much left to do. Although I am proud of what we did with little resources, please know there is still much more work in this area. I began by asking what would happen if you did not make it home tonight. Accidents happen all the time. The bottom line is that if you do not have advance health care directives and power of attorney documents, chances are great that you will end up the subject of a guardianship. And if so, is anybody watching over your guardian? Thank you for the opportunity to testify. [The prepared statement of Ms. Hollister appears as a submission for the record.] Chairman Klobuchar. Well, thank you very much. That was very interesting testimony, and helpful. I guess I will start where we ended here with you, Ms. Hollister, and just ask you if you think this has improved things. Are there actual statistics? It sounds like Florida--which we all know has a major population of seniors, many of them from Minnesota who like to go down there for the weather. Do you have numbers to show that there was improvement with that coming in? Ms. Hollister. That is one of the challenges that we do not have---- Chairman Klobuchar. You probably did not have a baseline. Ms. Hollister. No. 1, not a baseline, and the technology that is available is not able to capture--we can tell you anecdotally that the courts have reported that there is a decrease similar to the words, I guess, of the Texas judge that now they know they are being inspected. And so anecdotally we know. But to facts and figures, the technology exists, but we do not have the resources to implement. Chairman Klobuchar. And then the public data base that you talked about, what is on there exactly? The credentials or the--what is that? Ms. Hollister. It lets the public as well as the judges know that a professional guardian's licensure is current, so that means that they have passed their credit and criminal history, they have maintained their CEUs, their continuing education, passed the State exam, their bond is current, and that they could be appointed on a case. Chairman Klobuchar. And it sounds like--and maybe we will go to some of the other people, to you, Ms. Karp. I think the statistics that Ms. Brown brought up, that only nine States do the criminal background checks, and so this must be a little more advanced in some of the other States. Or do you have any opinion of what other States are doing? Ms. Karp. My sense really is--oh sorry. I mostly know about what is in their statutes, and it is very surprising to me. I believe it is only 13 States require the background checks. We do not even have an idea how many of them are actually doing them, what systems they have, how they are paying for them, because there is a cost for them. So I do not think we have a picture of what the reality is. We just know what laws are on the books. Unfortunately, in many cases the guardianship laws in general that are on the books are great. There are monitoring requirements. There are a lot of due process requirements. But it is really where the rubber meets the road. How is it being implemented and is anyone really investigating? And with very few resources, in many cases they do not seem to be. Chairman Klobuchar. So is that why--maybe you, Ms. Karp, and Ms. Holtz could chime in, Mr. Baldwin. Is that why that Ramsey County program we talked about where they do the e- filing--I am trying to think of how you--I am sure there are legislative changes that can be made. We have some ideas here that we are working on. But does the e-filing--I would guess with the trigger system, maybe it is a more efficient way of catching these things than having a court monitor every single thing. I do not know if one of you wants to--the court gets involved after there is a trigger, or someone does. Ms. Holtz. Madam Chair, members, it is important to remember with the e-filing that it is only for conservators in Minnesota, so it is only looking at financial accounts. It does not take into account any of the guardianship and the things that actually happen to the person. But I think it has got potential to do that with flags that could be written into a software program for the same thing. Chairman Klobuchar. OK. Ms. Karp? Ms. Karp. And if I could add, I think one of the beauties of it--my understanding, at least when it was developed initially in Ramsey County--was developing the software itself was not that expensive, in the area of $50,000. The problem most courts have is that they do not have the personnel to monitor, to actually read the reports and do any verification and visit. So the benefit of this is it really could save dollars because of the automated feature. And so then when the red flags do pop up, that is when we could put our human capital into really investigating the cases, but we can have those automatic red flags popping up in every case because of the automation of it. Chairman Klobuchar. Mr. Baldwin, the legislation that we are working on would allow for State courts to assess and improve their practices and procedures for appointing and monitoring the guardians. We based this idea to some degree on a court improvement program for child welfare. Could you tell us is there any information about how these court improvement programs have been beneficial? Mr. Baldwin. Yes, I think the Court Improvement Program for Abused and Neglected Children, as I indicated earlier, has been widely accepted as being effective. First of all, they had several national summits that brought together State teams that were charged with creating State individual plans. These were interdisciplinary teams that returned home with an action plan to work not only in the courts but with the social service agencies to improve the processing of those cases which included improving the laws, improving court practices and procedures, and creating a forum for collaboration. So there is a good history, I think, behind how that has worked, so it is, I believe, an exceptionally good model for the program you are talking about, and we believe that would be a very effective way to proceed. Chairman Klobuchar. Very good. We will be working with you moving forward. Ms. Brown, I know that the GAO has issued several reports over the years. You mentioned them in your testimony. Since issuing these reports, what changes have you seen in the way that State courts oversee guardianship procedures? And do you believe that the conditions have worsened for those because of budget constraints across the country for those involved in guardianship? I was just thinking we know--I think the number of seniors in our State are doubling by the year 2030. Maybe I used those stats 10 years ago, but clearly we are seeing--what did we call it?--the ``silver tsunami'' that there is going to be a lot more seniors, and I would think that the needs to make sure that we are monitoring these effectively are going to increase. Ms. Brown? Ms. Brown. When we did this most recent report, one of our tasks was to look back and see what kind of changes the States that we had looked at earlier had made, and I think the bottom line there is the changes were in fits and spurts. States are picking up one idea that they think is good, or they are making a couple changes and then the next year making a few more changes. But the idea of having a set of good practices or a set of standards for courts to follow I think is something that can be really helpful in a situation like this where we have so many different situations because these are State-administered courts. Chairman Klobuchar. Very good. Mr. Baldwin, do you want to add something? Then I am going to turn to Senator Franken. Mr. Baldwin. Yes, I would just add to that I think this is an excellent example of where impetus can be provided by introduction of Federal funds. I know that everyone---- Chairman Klobuchar. Federal legislation. Mr. Baldwin. Yes, right. Chairman Klobuchar. And maybe some funds. [Laughter.] Mr. Baldwin. I know everyone says that, but what the States and the courts many times are in need of is that spark, sowing that seed. There are plenty of good ideas that are out there, and they need that little impetus to get started, and then the momentum builds. I think then you would see some significant improvements. Chairman Klobuchar. I agree. We saw that with everything from domestic abuse with the VAWA bill and that it did training and other things. We see it with everything from seat belt rules that have crossed the States, but just there is still something to setting some standards our federally. Even if they are suggested standards, that can make a difference, and then tying hopefully pilots to them and other things that we can try out. So it just puts it in a bigger way for the other court systems to look at. Thank you. Senator Franken. Senator Franken. Thank you, Madam Chair, and I want to commend you for convening this hearing and for raising awareness on these issues and for your suggestion of pilots, which is a way of getting programs started without across-the- board funding around the country. Many Minnesotans work very hard every day to ensure that our seniors receive the care that they need and deserve, and those people, I believe, are unsung heroes. Unfortunately, we have recently been reminded of instances of elder abuse and that they still occur, and obviously that is unacceptable. And that is why I am planning to introduce legislation to expand the long-term care ombudsman program to serve seniors in the home and community-based setting, in both of those. Ms. Holtz, this is where the grilling starts. As Minnesota's long-term care ombudsman, do you see an opportunity for ombudsmen to have more involvement in protecting vulnerable seniors both in nursing facilities and at home? Ms. Holtz. Absolutely, and I think we have an obligation as more and more people state that they want to remain in their homes and in their communities. So, yes, we have great opportunities and an obligation for it. Senator Franken. Now, all these recent reports of abuse in the State guardianship system demonstrate how important it is for seniors to have explicit rights and protections written into the law. Minnesota has a home care bill of rights, as you mentioned, to protect seniors who receive home care services, and recently passed a bill of rights to address some of the abuses in the guardianship context. What can we all learn from Minnesota's experiences with these bills of rights? Ms. Holtz. You know, we had good success in 2009 getting the bill of rights into legislation, and actually I want to give credit publicly to MAGIC. That is the trade association in Minnesota that looks at--it is the Minnesota Association for Guardianship and Conservatorship, and they really had all of these rights listed already. And when it was suggested that it be put into law, actually some people had questions about it because that makes it a little stricter, and then you have to enforce it. But we came together and we got them into law, and I think one of the things that does, even if you do not have enough funding for enforcement and monitoring, it gives people information, it gives people the power to know that they have choices and they have rights. If they are involuntarily discharged from home care or if they are facing abuse from a guardian, they know that they have rights in the law. They can call our office. They can call others. So it is a first step. It has to be followed by enforcement and monitoring, but it is a good standard to have. And I believe with some of these pilot projects we can do a great service working together across the Nation to look at either some standardized bill of rights or just the idea that every State should have a bill of rights for people. Senator Franken. And not only does the person who--the senior, say, understand these rights, but also their family members, et cetera. Ms. Holtz. Correct. Senator Franken. And that makes a difference. Ms. Holtz. Absolutely. Absolutely. Senator Franken. Ms. Karp, in your testimony you mentioned the importance of identifying local models that can provide best practices for the rest of the country. In Hennepin County in Minnesota, which the Chair was the chief prosecutor of, the local adult protective services program screens guardians and provides them with ongoing training to make sure they are acting in the best interest of seniors and other vulnerable adults. The legislation I was discussing just now with Ms. Holtz recognizes the importance of adult protective services programs and encourages more coordination between adult protective services and the ombudsman program. Do you agree that there is a role for adult protective services and the ombudsman to play in protecting seniors from maltreatment by guardians? Ms. Karp. Absolutely, and we know that adult protective services sometimes is called in to investigate a case when there is no guardian and there is abuse, and then they identify the fact that the person does no longer have the capacity to make decisions for themselves, and they may be the ones to initiate or trigger a guardianship which can be protective. So that is one very important role they can play. On the other hand, when we have a guardian appointed and then there is some evidence that there is abuse by the guardian, adult protective services can be brought in to investigate, and that can lead to sanctions or removal of the guardian. So on many fronts, adult protective services plays a key role. Similarly, the ombudsman, you know, is the other very important State entity that really is charged with protecting people who may not be able to speak for or protect themselves. And with elder abuse, we know that a multidisciplinary approach, whether it be through multidisciplinary teams or task forces, is really the way to go because we need expertise from multiple agencies and professions. So I would totally agree. Senator Franken. Thank you. Ms. Holtz, as I mentioned, the vast majority of people who work in the elder care field do a great job, and I commend them. But a few bad actors is all that it takes to undermine confidence in the system. I recently read an article in the Minneapolis Star Tribune about a lawyer who had been disbarred because she lied to her clients and mismanaged their cases, but who was still appointed to be a guardian for dozens of incapacitated adults. We should not be entrusting our seniors to someone like that, obviously, so my bill would establish quality assurance standards for home and community-based service providers. This would give seniors and their families information about whether a home care worker has received a background check or has been trained. Would standards like this help protect our seniors? Ms. Holtz. Absolutely, and we need more of that, and we need more transparency. Even with the background checks that take place in Minnesota, consumers do not get the information about a misdemeanor or some offense that took place years ago that allows the person to still go through the process. So we need all of that. Your language in your bill would be absolutely necessary and very good. It would prevent a lot. Senator Franken. Thank you. My time is up. Thank you, Madam Chair. Chairman Klobuchar. Thank you very much. Senator Blumenthal. Senator Blumenthal. Thank you, Senator Klobuchar, and thank you all for being here, especially the folks who have come from Minnesota, whose Senators are doing great work on this issue. We really appreciate their leadership, and it is no accident that they are both here today, because, speaking very seriously, they have really championed this cause, as you know. It is just supremely important to all of us around the country who have any contact in this area; whether it is through law enforcement or just plain citizens, children, parents, friends, and neighbors, all are affected. One of my quandaries here is what really is the barrier or barriers, the major barriers, to information sharing. Obviously there are privacy protections. There are institutional obstacles, State, Federal, courts, governments, and so forth. So maybe I can ask each of you what are the three major information-sharing barriers when it comes to background checks or principally the qualifications and bona fides of people who serve in this critical relationship of trust and stewardship with people whom they know, some they do not know. So maybe we can go down the line and ask each of you to comment on that. Ms. Brown. I think you mentioned one of the most important ones, and that has to do with the challenges with data sharing and technology. And one of the things we are finding in many different areas--I do some work in child abuse protections as well, and we saw two things again and again, one being challenges with sharing data because of the systems, the other being challenges with sharing data because of concerns about privacy. I think there is a real fear among some organizations that sharing information about individuals would be detrimental, and so maybe some really important information does not get shared. And the third piece you also mentioned, and that is the collaboration across different organizations. These are multifaceted problems, and trust and support across the community organizations is always a challenge. Senator Blumenthal. Ms. Holtz. Ms. Holtz. I think you would lose a lot of those barriers if you have the consent of the individual or their representative. Our office has a very unique part in the Federal law that states we are not mandated reporters, and that is because when Congress enacted this law decades ago, they wanted one place where seniors could go and share any kind of information and know that it would not be shared without their consent. But we almost always have the consent of them if we are working with adult protection and other systems to get it going. To answer your broader question, though, we need a national system. We need a system, a data base, or a registry so that the bad apple that gets fired in Alabama cannot move up to Minnesota and do the same thing because we did not know about it occurring in another State. So we need a national registry or a national data base. Senator Blumenthal. Rather than just State systems that share information with each other. Ms. Holtz. Absolutely. You still need the State systems that share, but we are seeing too many of these things occurring where people move around from State to State. They prey on the victims. Senator Blumenthal. Thank you. Ms. Karp. I guess the first one I want to stress--and this is something that the GAO has now repeated in, I think, three reports over the last 8 years--is the Social Security Administration representative payee program, the VA fiduciary system, and the State court guardianship systems all frequently serve the same people, and yet there are no systems for them to talk to one another. And, in particular, Social Security has always been extremely concerned that the Privacy Act bars them from sharing the information. On the other hand, everyone knows that if one of those three entities has identified a bad apple, you know, shouldn't we be sharing that with the others? Because why should someone be removed as a Social Security rep payee and still be appointed by the State court to serve as a guardian and have control over the finances? So that is a big barrier, and we need to really clear up that Privacy Act issue and those other barriers. Second, I think within States we have a lack of coordination. We at AARP Public Policy Institute looked at criminal background check screening in home care and the pilot project in long-term care, and one of the issues has been that a lot of different State agencies do background checks on the same individuals, and they are not coordinating, and that is wasting resources. So if we had different State agencies working together, we could save repeated checks; we could share information; we could have a tiered system that makes sense. So coordination within the State. And then, finally, I think just the fact that we lack staff to do all of these things, we lack staff at the courts; we lack staff at APS; we lack staff at the long-term care ombudsman. There is only so far we can go on screening people when we do not have the people to administer the systems and to look and make sure we are keeping the bad apples out. Senator Blumenthal. But even without staff, which requires resources and money, you are saying--and others have confirmed--that some of the institutional or legal barriers are--not easily, but at least they are alterable? Ms. Karp. It would appear to be, and I know that the VA is definitely making some strides to try to coordinate, and so I do not see why we cannot have more of that across---- Senator Blumenthal. The VA is making those efforts, but most of the beneficiaries or most of the people who are in guardianships would be in SSA. Is that correct? Ms. Karp. Probably more---- Senator Blumenthal. I think the GAO report makes that point. Ms. Karp. Yes. Mr. Baldwin. I think the points already made are very good ones, and I might expand on your question just slightly to speak from the courts' perspective. One of the things which is somewhat of an institutional barrier to all of this, not just the sharing of information, is that courts are primarily--in the overwhelming majority of cases they deal with, reactive entities. If a court decides that a plaintiff is entitled to some money and then orders the defendant to pay money, they do not then monitor whether or not the defendant is paying the plaintiff money. They rely upon the defendant to come back to court if he is not being paid the money. If you take that mind-set, in most of what the court does, they do not have in place systems or staff or anything else to monitor, keep up with, investigate, report on, share information with and so forth. So anytime you have a category of cases--many times in the family area--that requires the court to do something that is out of sync with what its normal institutional requirements are, it means creating new systems, creating new ways of doing things, changing mentalities, and more expenditures of money. And so I think that from a court's perspective that is fundamentally something that is dealt with on a piecemeal basis, but it is why things lag behind and take longer to be corrected. Senator Blumenthal. Thank you. My time has actually expired, so, Ms. Hollister, I do not know whether---- Chairman Klobuchar. If you want to ask another question, that is fine. Senator Blumenthal. No, I just want to give Ms. Hollister a chance to answer the question that has already been asked. I did not want to cut you off. Ms. Hollister. Well, I appreciate that. In my experience, what everybody has said has held true for me as well. The only thing that I would add quickly is the problem that we see, ironically, is the technology, that everybody has different systems, and so to get everybody's system to talk to each other actually can be a stumbling block, and that would be the only point I would want to add. Senator Blumenthal. Thank you. Thank you, Madam Chair. Chairman Klobuchar. Very good. Senator Franken, do you have any additional questions? Senator Franken. No, I do not. Thank you, Madam Chair. Chairman Klobuchar. Well, very good. Well, I want to thank everyone because it has been incredibly helpful for all of us to hear the good things. I was thinking with my little story I told OMITTED] T1059.064