Guardianships:

Collaboration Needed to Protect Incapacitated Elderly People

GAO-04-655: Published: Jul 13, 2004. Publicly Released: Jul 22, 2004.

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As people age, some become incapable of managing their personal and financial affairs. To protect these people, state laws provide for court appointment of guardians to act on their behalf. In many cases federal programs provide these incapacitated people financial benefits. GAO was asked to examine: (1) what state courts do to ensure that guardians fulfill their responsibilities, (2) what guardianship programs recognized as exemplary do to ensure that guardians fulfill their responsibilities, and (3) how state courts and federal agencies work together to protect incapacitated elderly people.

All states have laws requiring courts to oversee guardianships, but court implementation varies. Most require guardians to submit periodic reports, but do not specify court review of these reports. Interstate jurisdictional issues sometimes arise when states do not recognize guardianships originating in other states. Most courts responding to our survey did not track the number of active guardianships, and few indicated the number of incapacitated elderly people under guardianship. Four courts recognized by members of the National Guardianship Network as having exemplary guardianship programs devote staff to strong programs for guardianship training and oversight. Three of these courts offer training to guardians even though state law does not require it. Three also have programs in which volunteers or social work student interns visit people under guardianship and report on their condition. Although state courts and federal agencies are responsible for protecting many of the same incapacitated elderly people, they generally work together only on a case-by-case basis. Some courts send notices of guardianship to the Department of Veterans Affairs and the Social Security Administration, but generally coordination among federal agencies and courts is not systematic. Federal agencies and courts do not systematically notify other agencies or courts when they identify someone as incapacitated, or when they discover that a guardian or a representative payee is abusing the incapacitated person. This lack of coordination may leave incapacitated people without the protection of responsible guardians and representative payees.

Recommendations for Executive Action

  1. Status: Closed - Implemented

    Comments: HHS has taken steps to implement this recommendation by supporting studies of the topic and the inclusion of questions about guardians in the National Center on Elder Abuse's (NCEA's) annual survey on abuse. An August 2006 HHS funded study by the American Bar Association's Commission on Law and Aging, found that existing data cannot provide a clear picture of the incidence and prevalence of elder abuse. Many states expressed interest in collecting additional data, but also cited significant obstacles. Department of Health and Human Services is working on a study that will assess the feasibility of developing a uniform national database on elder abuse. The study will include a review of existing data collection and reporting efforts on elder abuse. The NCEA's annual survey of state adult protective services agencies now asks each state to count the number of cases of abuse in which a guardian was the source of a report of abuse or was the alleged perpetrator. In response to the survey for state fiscal year 2004 eight states and one territory reported one or more cases of alleged abuse in state fiscal year 2004 by a guardian or someone with power of attorney for the victim. Most of these states identified whether or not the victim was age 60 or older.

    Recommendation: To facilitate state efforts to improve oversight of guardianships and to aid guardians in the fulfillment of their responsibilities, the Department of Health and Human Services should work with national organizations involved in guardianship programs, such as the those represented on the National Guardianship Network, to provide support and leadership to the states for cost-effective pilot and demonstration projects to study options for compiling data from federal agencies and state agencies, such as Adult Protective Services agencies, concerning the incidence of elder abuse in cases in which the victim had granted someone the durable power of attorney or had been assigned a fiduciary, such as a guardian or representative payee, and in cases in which the victim did not have a fiduciary.

    Agency Affected: Department of Health and Human Services

  2. Status: Closed - Implemented

    Comments: The Department of Health and Human Services' Administration on Aging (AoA) has implemented this recommendation with a funding announcement to support projects for legal assistance for older persons under Title IV, Section 420 of the Older Americans Act. The applications for funding must describe how on-going technical assistance will be provided in areas including "Providing technical assistance to State and local agencies and organizations on issues related to guardianships over the elderly, including...data collection on guardianship issues." Applications are due August 4, 2008 and projected start date is no later than September 30, 2008.

    Recommendation: To facilitate state efforts to improve oversight of guardianships and to aid guardians in the fulfillment of their responsibilities, the Department of Health and Human Services should work with national organizations involved in guardianship programs, such as the those represented on the National Guardianship Network, to provide support and leadership to the states for cost-effective pilot and demonstration projects to develop cost-effective approaches for compiling, on a continuing basis, consistent national data concerning guardianships to aid in the management of programs for protecting incapacitated adults, such as the age of the incapacitated person, the type of guardian appointed, etc.

    Agency Affected: Department of Health and Human Services

  3. Status: Closed - Not Implemented

    Comments: Although VA, HHS, and OPM indicated their willingness to participate in such a study group, SSA disagreed with this recommendation. SSA stated that its responsibility focuses on protecting SSA benefits, cited concern about the difficulty of interagency data sharing and Privacy Act restrictions, and indicated that leadership of the study group would not be within its purview. As of September 2007, the agency's position has not changed. Coordination among federal agencies and between federal agencies and state courts remains essentially unchanged, according to agency and court officials. SSA continues to provide limited information to the VA in cases where issues arise, such as evidence of incapacity or misuse of benefits. However, to ensure that no overpayment of VA benefits occurs, SSA will provide appropriate VA officials requested information as to the amount of Social Security benefit savings reported by the representative payee.

    Recommendation: To increase the ability of representative payee programs to protect federal benefit payments from misuse, SSA should convene an interagency study group that includes representatives from HHS, federal agencies with representative payee programs, including VA and OPM, and state courts that wish to participate in order to study the costs and benefits of options for improving interagency cooperation and federal-state cooperation in the protection of incapacitated elderly and non-elderly people. Options may include (1) prompt and systematic sharing among federal agencies' representative payee programs of information such as the identity of individuals who are incapacitated, the identity of those individuals' designated guardians and representative payees, the identity of guardians and representative payees who fail to fulfill their duties, and the assignment of successor guardians and successor representative payees, and (2) prompt and systematic sharing of similar information among federal agencies and courts responsible for guardianships that choose to participate. Information-sharing initiatives should be designed in a manner that is cost-effective, respectful of privacy rights, and consistent with federal nondisclosure requirements concerning confidential information.

    Agency Affected: Social Security Administration

  4. Status: Closed - Implemented

    Comments: Meeting in July and August 2007, the National Conference of Commissioners on Uniform State Laws (NCCUSL) approved a Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act. This model legislation contains provisions that would allow guardianship to be formally recognized by another state or transferred to another state. The adoption of this legislation by the NCCUSL does not guarantee that states will follow its provisions because they must decide whether to amend their own laws. Before the legislation was approved, some states had adopted such provisions, including Idaho in 1996.

    Recommendation: To facilitate state efforts to improve oversight of guardianships and to aid guardians in the fulfillment of their responsibilities, the Department of Health and Human Services should work with national organizations involved in guardianship programs, such as the those represented on the National Guardianship Network, to provide support and leadership to the states for cost-effective pilot and demonstration projects to review state policies and procedures concerning interstate transfer and recognition of guardianship appointments to facilitate efficient and cost-effective solutions for interstate jurisdictional issues.

    Agency Affected: Department of Health and Human Services

 

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