1. NATIONAL COLLEGE OF PROBATE JUDGES FALL CONFERENCE PONTE VEDRA, FLORIDA NOVEMBER 16, 2017
LEGISLATIVE TRENDS AFFECTING PROBATE COURTS: BALANCING THE NEED FOR AND IMPACT OF “RIGHT TO ASSOCIATION” LEGISLATION FOR THE PROTECTION OF VULNERABLE INDIVIDUALS Terry W. Hammond Chair, National Guardianship Association State Affairs Committee Guardianship Attorney Brazos County Courts at Law Brazos County, Texas (979)

2. Options and Alternatives
OBJECTIVES
Who wants it and why?
Is it needed?
Templates
Enactments
Options and Alternatives
INTRODUCTION OF PROGRAM.. WHAT WE WILL PRESENT

3. PROPONENTS Kasem Cares Catherine Falk Organization
Catherine Falk Organization
National Association to Stop Guardianship Abuse
Boomers Against Elder Abuse
facebook.com/boomersbeware
Terry and Jen – Introduction of background, experience, etc.

5. Good Law – Guardian Abuse Gone Bad
PROTECTION: From being pulled into unwanted GUARDIANSHIP/CONSERVATORSHIP!!!!
How to Protect yourself from accidentally being pulled into the guardianship gulag.
Good Law –
Gone Bad

6. ARBITRARY GUARDIAN
DISENGAGED COURT
ISOLATION = ABUSE
HARM TO PERSON

7. Eight Ways to Protect Yourself Against Elder Financial Abuse
Is Elder Guardianship A New Form Of Human Trafficking?
(9/13/2016 Huffingtonpost.com)
Eight Ways to Protect Yourself Against Elder Financial Abuse
(January 11, 2017
USA Today)

8. Calls for Court Reform as Legal Guardians Abuse Older Adults
(July 28, 2017
The New York Times,
By Susan B. Garland)

9. Who’s Guardian Against The Guardians?
Is the Adult Guardianship and Probate Court System Being Used to Exploit Elderly People for Profit?
(Oct 10, 2017 The Root.com)
Who’s Guardian Against The Guardians?
(October 5, 2017 OnPoint )

10. (October 9, 2017 The New Yorker, By Rachel Aviv)
How the Elderly Lose Their Rights – Guardians can sell the assets and control the lives of senior citizens without their consent – and reap a profit from it.
(October 9, 2017 The New Yorker, By Rachel Aviv)

11. 2. Focus on Relatives v. Protected Person
ISSUES:
1. Need for Legislation
2. Focus on Relatives v. Protected Person
3. Impact/Stress on Person/Guardian/Court
4. Opt Out/Opt In
5. Costs/Fiscal Note
6. Post-Hearing Counsel

12. FALK/NASGA BILL Arizona Connecticut (Introduced) Hawaii
Indiana (Introduced)
Nevada
New York
Pennsylvania (Introduced)
Rhode Island
South Dakota
Tennessee
Virgin Islands
Washington

13. KASEM BILL Alabama Arkansas California Iowa Louisiana Nebraska Texas
Virginia
Wisconsin

14. KASEM CARES & FALK/NASGA
Both
Arizona
Illinois
Iowa
Tennessee
Utah
Neither
Florida
Ohio
Oregon
West Virginia

15. COURT ORDER REQUIRED TO RESTRICT VISITATION
California
Connecticut
Iowa
Pennsylvania
New Jersey
South Dakota
Tennessee
Utah
Virgin Islands
Washington

16. MIDDLE GROUND
Alabama
Arizona
Rhode Island
Texas
West Virginia

17. GUARDIAN HAS DISCRETION
Florida
Hawaii
Illinois
Indiana
Louisiana
New York
Ohio
Virginia
Wisconsin

18. COLORADO
..."shall not" restrict a protected person's right of communication, visitation, or interaction with 'other persons'....“...would eliminate any discretion on the part of the conservator.”
"May presume protected person's consent....“
"With good cause, a guardian my move the court to restrict.....“
5 factors considered to order restriction – 1) prior protective orders, 2) whether person chard with abuse/neglect/exploitation of person, 3) person’s expressed desire to/not to communicate/visit/interact, if person unable to communicate, existence of living will, DPOA, or advance directive contain preference, and 5) other factors deemed relevant by court.
Before Order - lesser restrictions
"Any person" may move Court to require access, restrict access, modify guardian's duties, remove guardian
Emergency hearing
Sanctions - Court may award costs/fees - not from protected person; appropriate monetary sanction

19. COLORADO
Guardian shall promptly notify closest family member (spouse/partner in civil union, adult child, parent, adult in nearest kinship - excluded guardian), all persons of court record, and any other person designated by the protected person og
1. Changes residence, including change to/from nursing home or assisted care facility to/from another nursing home/assisted care facility
2. Resides at a location other than residence for > 7 days
3. Admitted to medical facility for acute care/emergency
4. Death
* Does not apply if person informs guardian in writing does not want notice, or court order prohibiting guardian from providing notice
*Emergency enactment

20. NATIONAL GUARDIANSHIP ASSOCIATION STANDARDS OF PRACTICE www
NATIONAL GUARDIANSHIP ASSOCIATION STANDARDS OF PRACTICE
4. The Guardian’s Relationship with Family Members and Friends of the Person - "shall promote social interactions and meaningful relationships consistent with the preferences of the person"/"shall encourage and support the person in maintaining contact with family and friends...unless it will substantially harm the person."
6. Informed Consent
7. Standards for Decision-Making
8. Least Restrictive Alternative
9. Self-Determination of the Person
10. The Guardian’s Duties Regarding Diversity and Personal Preference of the Person

21. NATIONAL GUARDIANSHIP ASSOCIATION POSITION STATEMENT www. guardianship
NATIONAL GUARDIANSHIP ASSOCIATION POSITION STATEMENT
Standards of Practice/encourage adoption of standards
Certification of Guardians
Substantial Harm Requirement
Guardians need discretion
Supports necessary legislation/avoid adverse consequences
Notice requirement may be too broad
Sanctions/penalties

22. ALASKA STAT. §
It is the policy of the state that all guardians and conservators, when making decisions for their wards or protected persons, shall abide by the highest ethical standards of decision making and shall consider the standards of practice adopted by the department by regulation. The department shall adopt standards of practice for guardians and conservators and, before doing so, shall review the standards of practice adopted by a national organization with expertise in the area of standards of practice for guardians and conservators, such as the National Guardianship Association.

23. North Dakota Guardianship STANDARDS OF PRACTICE for ADULTS
All NDG standards apply to professional guardians, corporate guardians or family guardians unless otherwise indicated.
Adapted with permission from the National Guardianship Association

24. New Hampshire Administrative Order 16
The requirements for certification as a professional guardian are:
1. Be a national certified guardian or national master guardian with the Center for
Guardianship Certification (CGC) and maintain this registration as required by
CGC or its successor organization.
2. Be a resident of the state of New Hampshire or have a resident agent.
3. Adhere to the Standards of Practice published by the National Guardianship Association (NGA) or its successor organization.
4. Adhere to the Model Code of Ethics published by the NGA.

25. NGA Standards in Other States
Arizona Ohio
California Oregon
Florida Texas
Illinois Utah
Minnesota Washington
New Hampshire

26. State Guardianship Associations
Alaska Kentucky North Carolina
Arizona Massachusetts North Dakota
California Michigan Ohio
Colorado Minnesota Oregon
Florida Missouri Tennessee
Iowa Nevada Texas
Idaho New Jersey Washington
Indiana New Mexico Wisconsin

27. WINGS Working Interdisciplinary Networks of Guardianship Stakeholders
Alabama Michigan Texas
Alaska Mississippi Utah
D.C. New York Washington
Florida North Carolina Minnesota
Idaho Ohio Wisconsin
Indiana Oregon
Georgia, Missouri, West Virginia

28. New York
Order of Appointment shall identify the persons entitled to receive notice of the incapacitated person's death, the intended disposition of the remains of the decedent, funeral arrangements and final resting place when that information is known or can be reasonably ascertained. Order of appointment may identify the person or persons entitled to notice of the incapacitated person's transfer to a medical facility. Order of appointment may identify the persons entitled to visit the incapacitated person, if they so choose. However, the identification of such persons in the order shall in no way limit the persons entitled to visit the incapacitated person.

29. Illinois
Unless there is a court order to the contrary, the guardian, consistent with the standards set forth in subsection (d) of this section, shall use reasonable efforts to notify the ward's known adult children, who have requested notification and provided contact information, of the ward's admission to arrangements for the disposition of the ward's remains. If a guardian unreasonably prevents an adult child of the ward from visiting the ward, the court, upon a verified petition by an adult child, may order the guardian to permit visitation if...in the ward's best interests. In making its decision the court shall consider the standards set forth....Does not apply to public guardian or Office of State Guardian.

30. Texas
Texas Estates Code § – citation served on incapacitated person’s parents and spouse must contain a statement notifying the relative that, if a guardianship is created, the relative must elect in writing in order to receive notice about the incapacitated person under §
§ (a) – Guardian’s duty to inform “relatives” of incapacitated person’s health; Relatives required to be notified – spouse, siblings, parents, kids
Relative has no protective order from IP against them
Relative has no validation of abuse, exploitation or neglect
Relative has filed election to receive notice
Unless guardian seeks court order to relieve that duty

31. Texas
§ (h) – For cases established prior to or that were pending on One-time notice to be sent to certain relatives as soon as possible but not later than Guardian shall provide notice to spouse, parents, siblings and kids, who can reasonably be located, that relatives must elect in writing in order to receive notice about changes in the incapacitated person’s health and residence

32. NGA State Affairs Committee
Legislation
Adoption of Standards of Practice/Ethical Principles
Formation/Collaboration w/ State Guardianship Associations
National/State Conference Speaking/Exhibits

33. NATIONAL COLLEGE OF PROBATE JUDGES FALL CONFERENCE PONTE VEDRA, FLORIDA NOVEMBER 16, 2017