CURRENT AND EMERGING ISSUES IN GUARDIANSHIP Wynn Gerhard, Senior Attorney Greater Boston Legal Services Massachusetts Guardianship Policy Institute

THE NEED IS GROWING In the US, both the elderly and disabled populations are growing By 2020, there will be more than 77 million people over 70 As these populations increase, there are more people with incapacities By 2050, the percentage of people over 65 with Alzheimer’s disease will triple to a projected 13.8% The growth in these vulnerable populations increases the risk of abuse and financial exploitation Estimated $50 billion of assets are under control of guardians

Duality of Guardianship/Conservatorship Good Guardians and good monitoring can prevent these risks, and promote the well-being of adults under guardianship with services and supports But Guardians most often have plenary power without adequate monitoring and can abuse and exploit the incapacitated person

Need for Greater Monitoring and Accountability Scandals and media investigation of abuse and exploitation by Guardians in Nevada and New Mexico, including theft, estates drained to pay guardians, placement in nursing homes without notice Following investigation, Nevada revamped is guardianship laws in 2017 to include protections for the Protected person Courts lack resources to properly monitor Guardians and Conservators

Examples of States’ enhanced monitoring Nevada revamped its Guardianship statute to include Bill of Rights, new notice requirements, strict court review of fees, right to control visits, penalties and fines for guardian misconduct, State Guardianship Compliance Office Minnesota has a model online accounting program for conservators Increased collaboration between state courts and Social Security and Veterans Administration to prevent bad actor fiduciaries Court visitor programs

Increased Training and Education of Guardians/Conservators Many state specific examples Court rules requiring initial and ongoing training for guardians Support for family guardians Plain language handbooks, guardianship rounds, videos Issue specific training on reporting, care plans Example, Oregon project to require training resulted in increase in compliance with guardian reports and accountings WINGS coalitions, supported by the ABA, in 18 states

Promoting and expanding voluntary alternatives to Guardianship Most common example, health care proxies, do not need judicial involvement, can be changed 2009, UN approved the Convention on the Rights of Persons with Disabilities, declaring, “all persons have legal capacity.” March 2019 – Mexico Supreme Court determines that guardianship is unconstitutional New alternatives, such as Supported Decision-making Agreements have been adopted in parts of Canada, Europe, four states and District of Columbia SDM Agreements have been used to restore rights of people under guardianship

New Uniform Guardianship, Conservatorship and other Protective Arrangements Act, 2017 Adopted by Maine, filed in three other states Includes new provisions including: Limit guardianships in favor of less restrictive alternatives Create person-centered plans and promote self-determination Limit guardians authority to restrict the adult’s right to interact with others, leading to more involvement by families and others Family rights – to notice, reports, change of residence, death

2018 Hearings/Report of Senate Special Committee on Aging Federal monitoring of state guardianship law and practice, prompted by reports of abuse, exploitation Report recommends: Enhanced monitoring by courts through financial investigation, volunteer visitors, training of guardians and judges Laws to promote restoration of rights Increased federal support; Guardianship Accountability Act of 2019 Need for more and improved data to help guide decisions on ways to improve the guardianship system

Resources https://www.aging.senate.gov/press-releases/senate-aging- committee-examines-ways-to-strengthen-guardianship-programs https://www.americanbar.org/groups/law_aging/resources/guardians hip_law_practice/ https://www.americanbar.org/groups/law_aging/resources/wings- court-stakeholder-partnerships0/guardianship-reform-wings- background/ www.supporteddecisionmaking.org