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

2. 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

3. 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

4. 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 to include protections for the Protected person
Courts lack resources to properly monitor Guardians and Conservators

5. 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

6. 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

7. 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

8. 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

9. 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

10. Resources
committee-examines-ways-to-strengthen-guardianship-programs
hip_law_practice/
court-stakeholder-partnerships0/guardianship-reform-wings- background/