Casey, Braun Urge Examination of Guardianship Laws

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There are approximately 1.3 million adult guardianships in the United States and an estimated $50 billion in assets under guardianship arrangements

Washington, D.C. - Today, U.S. Senate Special Committee on Aging Chairman Bob Casey (D-PA) and Ranking Member Mike Braun (R-IN) sent a letter to the U.S. Government Accountability Office (GAO) regarding guardianship laws across the Nation. There are an estimated 1.3 million older adults and people with disabilities in guardianships, which are legal relationships created when a court determines that a person is incapable of making important decisions on their own. Considering the lack of data on guardianships across the U.S., Senators Casey and Braun requested GAO examine and report on guardianship laws throughout the country, the use of guardianships, and efforts to reform the guardianship system.

Recent Senate Special Committee on Aging testimony and media reports suggest that guardian abuse and fraud can have devastating effects. Such abuse can deprive older adults, people with disabilities, and others of their rights, their financial security, and even contact with their families.

"Although many guardians live up to their obligations, testimony and media stories illustrate the dark side of guardianships. Some adults are wrongly placed into guardianships, which can be unnecessarily restrictive and violate their rights. The status of people under guardianships may be 'poorly monitored in sufficient, meaningful, and diligent ways,' resulting in 'exploitation, abuse, and neglect,'" wrote the Senators.

The majority of people in guardianships are seniors and people with disabilities. Many need permission to see a doctor, take or refuse medication, live in in their own homes, spend their own money, and even vote. They also face increased risk of abuse, neglect, and exploitation by unscrupulous guardians. Efforts to reform guardianship systems and options for states to promote less restrictive alternatives are varied across the country.

Read the letter here and below.

The Honorable Gene L. Dodaro

Comptroller General

United States Government Accountability Office

441 G St. NW

Washington, D.C. 20548

Dear Comptroller General Dodaro,

We write regarding state guardianship laws, which can give a single person or entity the power to make personal, financial, health, education, residency, and other decisions for another. Recent Senate Special Committee on Aging testimony and media reports suggest that guardian abuse and fraud can have devastating effects. Such abuse can deprive older adults, people with disabilities, and others of their rights, their financial security, and even contact with their families. Historically, there has been inadequate data on the use of guardianship and occurrences of abuse in the United States, suggesting that a review of new data is in order. We ask the Government Accountability Office (GAO) to provide us with a better understanding of the use of guardianship across states and how people are impacted by existing guardianship laws, occurrences of abuse, and proposals for reform.

Most commonly, state courts may appoint a guardian for someone who is determined to be "incapacitated," or unable to make decisions because of conditions such as dementia, intellectual disability, mental illness, or substance use disorder. A 2017 estimate states there are roughly 1.3 million active guardianship arrangements throughout our Nation. An industry of private, professional guardians has developed in part because of an increasing use of guardianships for people who do not have family or friends who can act as guardians. Because of a guardian's power over the life of another person, a guardianship may entail significant risk, especially when guardians handle multiple protective arrangements and they are subject to limited oversight.

Although many guardians live up to their obligations, testimony and media stories illustrate the dark side of guardianships. Some adults are wrongly placed into guardianships, which can be unnecessarily restrictive and violate their rights. The status of people under guardianships may be "poorly monitored in sufficient, meaningful, and diligent ways," resulting in "exploitation, abuse, and neglect." In Nevada, adults were placed under guardianships for questionable reasons, then lost their homes, assets, and contact with their families. In New Mexico, the owners of a guardianship agency embezzled approximately $10 million from their clients and spent it on luxury items and vacations. In Pennsylvania, a guardian mismanaged a client's personal assets and did not properly file for veteran's benefits, costing the client $25,000 over a 22-month period. There is a clear need to understand how older adults and people with disabilities are impacted by guardianships and how proposed reforms could affect their lives.

There is a lack of data on guardianships in the United States. In 2016, GAO found that the extent of elder abuse by guardians was unknown. However, GAO noted that the National Adult Maltreatment Reporting System (NAMRS), a data-collection system that was then under development, might eventually provide useful information on guardianship abuse. NAMRS is now active and has released reports for fiscal years 2016 through 2020. Examining guardianships in light of the data available through NAMRS will help policymakers and taxpayers evaluate existing laws and proposed reforms and identify continuing gaps in the available data.

There are efforts to reform guardianship systems, including by the Uniform Law Commission (ULC), which has developed model legislation that states may choose to adopt. The Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act was developed with input from guardianship judges and organizations that advocate for reform. Changes include limits on a guardian's ability to restrict communications and clarification that there is a right to counsel to seek restoration of rights. It is important to have up-to-date information on the adoption of the ULC reforms and data on how those reforms work for people subject to guardianships.

Given the serious impact that guardianship arrangements can have on older adults and people with disabilities, and the importance of transparency in promoting awareness of and accountability for such a legally constraining institution, we seek an update on the data that is available on guardianships in the United States. We also seek to understand the impact of proposed reforms and efforts to safeguard the due process rights of people who are subject to guardianships. Accordingly, we request that GAO examine and report on the following issues:

1. How many guardianships are currently active in the United States?
   1. How accurate are the estimates of the number of guardianships in the country?
   2. What requirements would be needed to ensure that an accurate accounting of guardianships across the country is available to policy makers on an on-going basis?
   3. Which steps at the state level have been effective in promoting transparency and accessible data around guardianships and less restrictive alternatives?

1. To what extent is NAMRS able to identify cases of elder abuse where a guardian was involved?
   1. What are the trends in NAMRS data on abuse by guardians over time?
   2. What, if any, gaps exist in the NAMRS data collection related to elder abuse by guardians, and are there barriers to collecting this information?

1. How do selected states treat petitions to end guardianships, and what, if any, challenges do states face in administering their guardianship programs?
   1. What barriers do individuals in selected states face when they attempt to challenge or terminate a guardianship?

1. When adopted by a state, what impact do the changes in the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act have on individuals subject to or under consideration for a guardianship arrangement?

1. What federal policies assist states in the oversight of guardianships, and how can federal policy help states seeking to adopt less restrictive alternatives such as those outlined in the ULC model guardianship law?

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