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Transcript of GUARDIAN ACCOUNTABILITY THEN AND NOW: TRACING .Rocky Mountain News series “Stolen...

  • GUARDIAN ACCOUNTABILITY THEN ANDNOW: TRACING TENETS FOR AN ACTIVECOURT ROLE

    Sally Balch Hurme*Erica Wood**

    Adult guardianship can be viewed as having a front end(the determination of incapacity and appointment of a guardian)and a back end (accountability of the guardian and courtmonitoring). The Associated Press, in its landmark 1987 reportGuardians of the Elderly: An Ailing System disparaged both.1 It

    * 2002, Sally Balch Hurme. All rights reserved. Attorney and CampaignConsultant, Consumer Protection, Membership Cluster of AARP. B.A., Tulane University,1968; J.D., American University Washington College of Law, 1977.

    Prior to coming to AARP ten years ago, Ms. Hurme was an assistant staff director forboth ABA Commissions on Legal Problems of the Elderly and on Mental and PhysicalDisability Law. While at the ABA she authored, Steps to Enhance GuardianshipMonitoring. She has also been in private practice, a legal services attorney, and anattorney advisor with the Department of Justice. She was an adjunct professor at theWashington College of Law, American University, Washington, D.C., for twelve years, andcurrently is teaching Elder Law at George Washington University Law School.

    Ms. Hurme is a member of the National Academy of Elder Law Attorneys, theNational Guardianship Association, and the Virginia Bar Association. She serves as vicechair of the Board of Trustees of the National Guardianship Foundation. She writes andlectures extensively on consumer fraud, elder abuse, and surrogate decision-makingissues, including guardianship, powers of attorney, and advance directives. ** 2002, Erica Wood. All rights reserved. Associate Staff Director, ABA Commissionon Legal Problems of the Elderly. B.A., University of Michigan, 1969; J.D., GeorgeWashington University Law School, 1974.

    Since 1980, Ms. Wood has been associated with the Commission where she has workedprimarily on issues concerning adult guardianship, legal services delivery, disputeresolution, health care and managed care, long-term care, and access to court. Before1980, she served as staff attorney at Legal Research and Services for the Elderly, at theNational Council of Senior Citizens. Ms. Wood is a member of the Virginia State Bar andthe Virginia Bar Association. She is a member of the Virginia Commonwealth Council onAging, the Board of the Consumer Consortium on Assisted Living, and the Board of theArlington Retirement Housing Corporation; serves also as Legislative Chair of theNorthern Virginia Aging Network.

    1. Guardians of the Elderly: An Ailing System, AP Special Report (Sept. 1987), inAbuses in Guardianship of the Elderly and Infirm: A National Disgrace, H.R. Comm. Print100-639, at 1339 (Dec. 1987).

  • 868 Stetson Law Review [Vol. XXXI

    charged that guardianship in the United States regularly putselderly lives in the hands of others with little or no evidence ofnecessity, then fails to guard against abuse, theft and neglect.2

    The guardianship system cannot function effectively unless bothends are in working order. This paper is about the back end.The Authors review the Associated Presss charge, the 1988American Bar Association (ABA) Wingspread conference recom-mendations on guardianship monitoring,3 and what has occurredsince then. It asks where we stand now, what barriers blockeffective monitoring, and what imaginative, yet practical steps wecan take to bolster guardian accountability.

    I. BACKGROUND

    The Associated Press Report (AP Report) released inSeptember 1987 was a clear indictment of the guardianshipmonitoring process by probate- and general-jurisdiction courtsthroughout the country. Its examination of 2200 randomlyselected guardianship court files showed that forty-eight percentof the files were missing at least one annual accounting; onlysixteen percent of the files had personal-status reports on theincapacitated person; and thirteen percent of the files wereempty, except for the opening of the guardianship.4 The report,replete with poignant anecdotes, contended that overworked andunderstaffed court systems frequently break down, abandoningthose incapable of caring for themselves, and that courtsroutinely take the word of guardians and attorneys without

    2. Fred Bayles & Scott McCartney, Declared Legally Dead by a Troubled System, inGuardians of the Elderly: An Ailing System, AP Special Report, in Abuses in Guardianshipof the Elderly and Infirm: A National Disgrace, H.R. Comm. Print 100-639, at 13.

    3. ABA Commn. on the Mentally Disabled & Commn. on Leg. Problems of theElderly, Guardianship: An Agenda for Reform Recommendations of the NationalGuardianship Symposium and Policy of the American Bar Association (ABA 1989)[hereinafter Wingspread Recommendations]. The conference, sponsored by the ABACommissions on the Mentally Disabled and Legal Problems of the Elderly, is knowninformally as the Wingspread conference, after the Johnson Foundations WingspreadConference Center in Wisconsin where the conference was held.

    4. AP Turned to Legal Counsel to Gain Access to Guardianship Files, AP SpecialReport, in Abuses in Guardianship of the Elderly and Infirm: A National Disgrace, H.R.Comm. Print 100-639, at 19; Bayles & McCartney, supra n. 2; Fred Bayles & ScottMcCartney, Part III: Lack of Safeguards Leaves Elderly at Risk, in Guardians of theElderly: An Ailing System, AP Report, in Abuses in Guardianship of the Elderly andInfirm: A National Disgrace, H.R. Comm. Print 100-639, at 3132 [hereinafter Bayles &McCartney, Lack of Safeguards].

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    independent checking or full hearings.5 In short, it claimed that,sometimes, the courts responsible for overseeing guardianshipcases ignore their wards.6

    The AP Report triggered the ABAs interdisciplinaryWingspread conference the following year. Wingspread drew onthe expertise of thirty-eight invited participants judges,attorneys, guardianship-service providers, physicians, aging-network staff, mental-health experts, ethicists, academicians, andothers.7 The conference included a working group onaccountability of guardians, which made six recommendationsthat were adopted by the plenary and later endorsed by the ABAHouse of Delegates as Association policy.8 These recommenda-tions were built on monitoring provisions in two earlier ABAefforts the 1979 Model Guardianship and ConservatorshipStatute9 and the 1986 Statement of Recommended JudicialPractices, which was adopted by the National Conference of theJudiciary on Guardianship Proceedings for the Elderly.10

    In turn, the Wingspread recommendations launched acomprehensive study of guardianship monitoring by the ABACommission on the Mentally Disabled and the Commission onLegal Problems of the Elderly with support from the State JusticeInstitute (SJI).11 The 1991 study included a national survey ofmonitoring practices and six intensive site visits.12 The resultingreport outlined ten recommended monitoring steps drawn fromactual practices that were in place and working in diversejurisdictions.13

    At the same time, two additional SJI-funded projects shedfurther light on the monitoring process. The Legal Counsel for theElderly at the American Association of Retired Persons (now

    5. Bayles & McCartney, supra n. 2; Bayles & McCartney, Lack of Safeguards, supran. 4, at 31.

    6. Bayles & McCartney, Lack of Safeguards, supra n. 4.7. ABA Commn. on the Mentally Disabled & Commn. on Leg. Problems of the

    Elderly, supra n. 3, at iv.8. Id.9. Model Guardianship & Conservatorship Stat. (1979) (reprinted in Bruce Sales et

    al., Disabled Persons and the Law: State Legislative Issues (Plenum Press 1982)).10. Statement of Recommended Judicial Practices (Erica F. Wood, compiler, ABA

    Commn. on Leg. Problems of the Elderly & Natl. Jud. College 1986).11. Sally Balch Hurme, Steps to Enhance Guardianship Monitoring 1011 (ABA 1991).12. Id.13. Id. at 13.

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    AARP) initiated a National Guardianship Monitoring Projectfeaturing the use of trained volunteers to be the eyes and earsof the court and serving as court visitors, auditors, and recordsresearchers.14 AARP supported the program for seven years,fostering volunteer monitoring projects in fifty-three courtsthroughout the country.15 The School of Law and the School ofMedicine at St. Louis University developed a national model forjudicial review of guardians performance, based on a statutory,operations, cost, and outcome analysis of monitoring in six courtsreputed to be conducting effective monitoring.16

    In 1993, the National Probate Court Standards providedclear procedures for guardianship monitoring.17 In 1997, therevision of the Uniform Guardianship and Protective ProceedingsAct included a section on reports and monitoring,18 and thecommentary highlighted the importance of [a]n independentmonitoring system . . . for a court to adequately safeguard againstabuses.19 During the 1990s, the rush to update state guardian-ship laws included an emphasis on accountability andmonitoring, with many jurisdictions making changes in the use ofbonds, the frequency and content of accountings and guardianreports, the nature of court review, and sanctions for guardianswho breach their fiduciary duty or fail to report to the court.20

    Despite these advances, a recent flurry of newspaperheadlines highlights instances in which monitoring proceduresremain lax and incapacitated persons are subject to risk. TheRocky Mountain News series Stolen Blind examined problemsin the Denver court.21 The Detroit Free Press asked, Who Is

    14. Susan Miler & Sally Balch Hurme, Guardianship Monitoring: An Advocates Role,25 Clearinghouse Rev. 654, 654655 (1991).

    15. Morris A. Fred, Illinois Guardianship Reform Project: Final Report 32 (Equip forEquality 2001).