2007 State Adult Guardianship Legislation: Directions of Reform
Wednesday, January 30, 2008
- Organization: American Bar Association
STATE ADULT GUARDIANSHIP LEGISLATION:
DIRECTIONS OF REFORM - 2007
Commission on Law and Aging
American Bar Association
In 2007, at least 13 states passed a total of 16 adult guardianship bills - as compared with 16 bills in eight states passed in 2006. Connecticut passed a major revision targeting procedures for appointment, limited orders and procedures for appealing probate court decisions. Washington, Arkansas and Nevada passed legislation creating or strengthening an office of public guardianship. If you know of additional state adult guardianship legislation enacted in 2007, please contact Erica Wood, ABA Commission on Law and Aging, firstname.lastname@example.org, 202-662-8693.
A. Connecticut: Bolstering Procedures for Appointment and Appeal.
The following summary of the new Connecticut guardianship (termed "conservatorship") law is by Kate McEvoy, JD, Deputy Director, Agency on Aging of South Central Connecticut and Chair, Elder Law Section, Connecticut Bar Association.
Enactment of Public Act 07-116 , which became effective on October 1, 2007, reflects sweeping changes in Connecticut's guardianship law that update and modernize the state's law consistent with model standards. These amendments reflect a "person-centered" approach that requires courts to evaluate each instant situation on an individually-tailored basis. The most fundamental aspect of the amendments is that they build on prior Connecticut law to require a presumption of limited, rather than plenary, conservatorship.
Conservatorship law in Connecticut has been slow to evolve. Prior to 1998, in all cases in which a court found that a respondent was incapable, it was obligatory that the court appoint a plenary conservator. While amendments in Connecticut law first provided that appointment of a conservator was no longer mandatory where there were alternate existing supports, and later permitted appointment of a conservator on a limited basis, plenary appointments continued to be the norm. This has changed due to the comprehensive amendments that were enacted in the 2007 legislative session. The amendments were initially inspired by the national guardianship Wingspan recommendations and drafted by advocates from Greater Hartford Legal Assistance and the Connecticut Legal Rights Project. With comment from diverse partners, the amendments were finalized and ultimately championed by a workgroup led by Hartford Probate Court Judge Robert Killian, Jr. The amendments provide enhanced guidance on every aspect of the process, from inception through periodic review.
Definition of Incapacity. A key premise of the amendments is that Connecticut's definitions of incapacity have been revised as follows:
• the "disabling condition" clause, which describes the individual's mental, emotional or physical condition, has been revised to remove references to such terms as "mental deficiency", "chronic use of drugs and alcohol" and "confinement";
• a "cognitive functioning" clause, which refers to an individual's ability to make and communicate informed decisions, has been added; and
• the "essential needs" clause, which describes the individual's inability to care for him or herself or to manage his or her affairs, now includes reference to "appropriate assistance" that might help an individual to do so.
Procedural Due Process Protections. The amended law includes enhanced procedural protections that:
• require that courts:
o establish jurisdiction;
o confirm that the person who is the subject of the application has been given the required notice and has been advised of the right to an attorney; and
o confirm that the person is either represented or has knowingly waived the right to an attorney;
• emphasize the right of a respondent to be notified of , to attend and to participate in hearings , and to be represented by an attorney of his or her choosing;
• outline courts' responsibility to schedule hearings at a place that will facilitate participation by the respondent;
• require that all hearings be conducted using the rules of evidence established by the Superior Court, and that all testimony that is offered be given under oath or affirmation;
• require that courts record hearings and retain the recordings for use in the event of an appeal; and
• provide standards for review and termination of conservatorships.
Least Restrictive Alternative; Limited Orders. At every stage of a proceeding, courts are required to evaluate whether a respondent's needs are currently being or could be met by a means that is less restrictive than appointment of a conservator. The amended law requires courts to consider numerous factors in determining whether a conservator should be appointed, including the abilities and preferences of the respondent, evidence of his/her life style and cultural background, and whether there exist alternate legal tools or supports that obviate the need for a conservator.
The new standard for appointment requires that the court find:
• that the respondent is incapable;
• that his/her financial affairs are not being adequately managed or that he/she is not being adequately cared for; and
• that conservatorship is the least restrictive available option.
Courts are now prohibited from appointing a conservator of the estate if the respondent's affairs are being adequately managed by other means including, but not limited to, a power of attorney or advance health care directive.
Even where a court concludes, based on clear and convincing evidence of needs, that appointment of a conservator is necessary, it is required to make a limited appointment and to review the conservatorship ongoing with an emphasis on authorizing only those duties that clear and convincing evidence has shown to be necessary. The basis for such assignment must be that each such duty and authority restricts the decision-making authority of the ward only to the extent necessary to provide for his or her personal or property management needs. Important examples of this include provisions that state that conservators of the person may not, without court authorization:
• revoke the conserved person's advance health care directives unless authorized to do so by a court of competent jurisdiction;
• terminate a tenancy or lease, sell or dispose of real property or furnishings or change the conserved person's residency; or
• place the conserved person in an institution, which is defined as a skilled nursing facility, an intermediate care facility, a residential care home, an extended care facility, a rest home or a rehabilitation hospital.
The amended law also provides that a conserved person retains all rights that are not expressly assigned to the conservator. Throughout, the amended law emphasizes use of the "least restrictive means of invention" and the obligation of the conservator of the person to take into consideration the wishes and preferences of the conserved person.
Finally, the amendments contain major changes concerning appeals. In contrast to historical de novo review, the Connecticut Superior Court must now limit its review to the record created at the probate court level , and must affirm the decision of that court unless it finds specific circumstances, such as legal error, to have occurred, or that the decision is contrary to the evidence presented. The amended law also provides that an individual may apply for and is entitled to the benefit of a writ of habeas corpus even if s/he has not exhausted other remedies.
B. Public Guardianship Programs: Washington, Arkansas, Nevada
The National Public Guardianship Study defined "public guardianship" as "the appointment and responsibility of a public official or publicly funded organization to serve as legal guardian in the absence of willing and responsible family members or friends to serve as, or in the absence of resources to employ, a private guardian." As of mid-2007, a total of 44 states had specific statutory provisions on public guardianship or guardianship of last resort. Such provisions most frequently are included as a section of the state guardianship code, but in some states the public guardianship provisions are located in separate statutory sections - for instance on services for the aging, adult protective services or services for individuals with disabilities. In 2007, three states passed bills establishing public guardianship programs. (Two additional states (Nebraska and Oregon) introduced public guardianship legislation that did not pass.)
1. Washington. The Elder Law Section of the Washington State Bar Association formed a Public Guardianship Task Force that estimated an unmet need for guardianship services at approximately 4,500 people statewide. The Task Force recommended legislation to establish an Office of Public Guardianship. SB 5320 passed the legislature in April, and was approved by the Governor in May, with the exception of a section that would have provided for an advisory committee.
SB 5320 creates an Office of Public Guardianship within the Administrative Office of the Courts. (Three other states have a court-based model of public guardianship - Delaware, Hawaii and Mississippi.) Placement within the court system avoids the potential conflict of interest inherent in many state statutes that place the public guardianship function in an agency providing direct services to incapacitated persons.
The new law directs the Supreme Court to appoint a public guardian to administer the program. The Office is to contract with public or private entities or individuals to provide public guardianship services to individuals age 18 or older whose income does not exceed 200% of the federal poverty level or who are receiving long-term care through the Department of Social and Health Services (Medicaid).
Initial implementation of the act is to be on a pilot basis in at least two geographic areas - one urban and one rural. The act does not create an entitlement, but rather implementation depends on legislative appropriation. Key features of the act include:
• The Office must adopt minimum standards of practice for public guardians; and any public guardian must be certified by the state's Certified Professional Guardian Board.
• A public guardian must visit each incapacitated person at least once a month to be eligible for compensation from the Office.
• An entity may not provide public guardianship services for more than 20 incapacitated persons per certified professional guardian. This is in accordance with the recommended ratio set out by the National Public Guardianship Study. Only six other state laws provide for a staffing ratio, and frequently the ratio itself is set out in regulations rather than in statute.
• The Office may not petition for appointment of itself as guardian. Only one other state (Vermont) specifically prohibits the office from petitioning, 12 specifically allow it and the remainder do not address the issue. Petitioning can present several serious conflicts of interest - either encouraging unnecessary cases if the program relies on case fees, or selecting cases based on factors other than need.
• The new law includes strong accountability measures. The Office must develop a system to monitor the public guardians, including making in-home visits to randomly-selected public guardianship clients. Also, the Office must adopt a process for receiving and investigating complaints.
• The Office must issue an annual report; must track and report cost savings to the legislature and the Governor; and must contract for a study to analyze costs and savings.
2. Arkansas. An Arkansas public guardianship bill, SB 820, creates an Office of Public Guardian for Adults, within the Division of Aging and Adult Services, but makes the Act contingent on appropriations. The Director of the Division must appoint a Division employee to serve as Public Guardian for Adults. In recognition of the potential conflict of placement of the Office in a service-providing agency, the new law provides that the Public Guardian "shall be functionally separate from and share no duties with any Department of Health and Human Services employee whose job it is to prepare and offer services, treatment plans, or both, to any person."
The Public Guardian must have a degree in law, social work or a related field, have a satisfactory criminal background check, complete 20 hours of training approved by the Division, and "demonstrate competency and ability to carry out the values of the ward." The Public Guardian must devote full time to the duties of the Office. Public Guardian may hire staff, and also may accept volunteer services.
The Public Guardian may petition for appointment as guardian if there is no suitable private guardian to serve; and may intervene in an established guardianship cases to be named as successor if the private guardian is unwilling or unable to perform. The Office - through staff or volunteers -- must have quarterly personal contact with each ward. The law sets out requirements for the maintenance of financial, case control and statistical records.
The new act does not take effect until and unless the Director of the Division determines that adequate appropriations or other funding are available to implement the program, and appoints a Public Guardian to serve. At the current time, there are no specific plans for implementation.
3. Nevada. Nevada law has allowed a board of county commissioners to establish an office of public guardian. SB 157 changes existing law by requiring the county boards to establish an office of public guardian. The new measure sets out four ways to meet this requirement: (1) appoint a public guardian for a four-year term; (2) designate a county officer to serve; (3) contract with a private professional guardian (unless the county population is 100,000 or more); and (4) contract with the board of county commissioners of a neighboring county in the same judicial district to use its public guardian. The bill requires the county public guardians to appoint one or more deputies to perform the functions of the office. The bill also makes other changes, including:
• Eliminating inability to pay for a private guardian as a condition of eligibility for public guardianship service;
• Allowing a county to advance funds for necessary expenses to a public guardian, to be repaid from the estate assets to the extent available; and permitting the county to establish a revolving fund to pay for the advances;
• Requiring that the public guardian receive a copy of any petition for appointment of the public guardian before the petition is filed;
• Allowing a public guardian to retain an attorney or obtain assistance from the district attorney's office with the approval of the board (in addition to selecting attorneys for administration of a guardianship from a qualified panel on a rotating basis); and
• Allowing the public guardian to make claims for services against a ward's estate before the ward's death.
C. States on the Move: Additional Legislation
Arizona: Evaluation of Incapacity. SB 1100 concerns the role of registered nurse practitioners, and allows them to report on "the need for a guardian and the basis of emergency, to support a petition for the appointment of a temporary guardian for an incapacitated person" and to report to a guardian on the physical and mental condition of an incapacitated person in their care.
Arkansas: Definition of Incapacitated Person. Statutory definitions of "incapacity" or "incapacitated person" generally include elements of medical condition, cognitive impairment, functional ability and/or necessity of guardian to protect the individual from harm. Arkansas HB 1305 addresses the need for protection from harm in adding to the definition of "incapacitated person" an "impaired adult" as defined in the Adult Maltreatment Custody Act as "a person eighteen (18) years of age or older who, as a result of mental or physical impairment, is unable to protect himself or herself from abuse, sexual abuse, neglect, or exploitation" (Ark. Code §9-20-103(8)(A)).
California: Amending Last Year's Omnibus Act. In 2006, in response to a series of reports on the state's adult guardianship system (called "conservatorship" in California), the legislature passed an Omnibus Act, which was "a landmark package of bills to overhaul California's troubled conservatorship system. That legislation [was] designed to remedy alarming deficiencies in California's conservatorship system that had led to the abuses of California's elderly and most vulnerable" (Bill Summary, Legislative Analysis, Leora Gershenzon). While the Act was moving through the legislature, the Chief Justice appointed a Probate Conservatorship Task Force to make recommendations for reform. The Task Force released recommendations, several of which were included in AB 1727, which also makes a number of technical and other clarifying amendments to last year's Act. Key provisions include:
• A requirement that the court make an express finding that a conservatorship is the least restrictive alternative needed for the protection of the conservatee;
• An increase in the value of an estate and the monthly income of an estate below which the court may order that no accounting is required; and
• Authorization for county public guardians or adult protective services to petition for appointment of the public guardian.
In addition, California SB 340 permits criminal background checks on proposed conservators.
District of Columbia: Act 17-161 makes notable amendments to the DC guardianship statute. However, it is an emergency act that will expire. A permanent version of the Act is pending at the DC Council. The emergency Act makes revisions in temporary guardianship provisions and adds significant language supporting maximum autonomy, including the following: (Thanks to T.J. Sutcliffe of the Arc of the District of Columbia for providing information.)
• Adds language concerning presumption of capacity;
• Creates a temporary limited health care guardian;
• More clearly defines limited guardian and emergency guardian;
• Allows the court to waive a visitor and examiner for the appointment of an emergency, temporary or limited medical guardian;
• Defines and limits potential guardian conflicts of interest; and
• Requires a guardian to use the substituted judgment standard of decision-making and to encourage the ward to participate in decisions whenever possible.
Illinois: Payment of Fees. Illinois law provided that if the respondent is unable to pay the fee for a guardian ad litem or appointed counsel, the court may order the petitioner to pay, except where the petitioner is the Office of State Guardian or an elder abuse provider agency. SB 452 adds an exception for the Department of Human Services Office of Inspector General in cases pursuant to the Abuse of Adults with Disabilities Intervention Act.
Kentucky: Capacity to Vote. With the upcoming Presidential election and growing number of older Americans, recent attention has focused on voting by aging citizens with some level of cognitive impairment. A March 2007 symposium and a special symposium issue of the McGeorge Law Review on Facilitating Voting As People Age: Implications of Cognitive Impairment asked the question of "whether we are disenfranchising persons with brain impairments who have a fundamental right and a threshold ability to vote, although they may need assistance." A Symposium paper on "Defining and Assessing Capacity to Vote" found that upon examination of state constitutions, election law and guardianship law, states fall into three categories: (1) 32 states with a specific right to have the court determine capacity to vote; (2) twelve jurisdictions with an implied right to a determination; and (3) seven states that categorically restrict the right to vote for persons with cognitive impairments.
Kentucky HB 374 clarifies that the court must determine whether the respondent retains the right to vote. It provides that the court must enter a specific finding and order concerning any loss of the right to vote - "A ward shall only be deprived of the right to vote if the court separately and specifically makes a finding on the record . . ."
Minnesota: Guardianship Study Group. In 2003 Minnesota passed a landmark law substantially revising its guardianship procedures, based on the Uniform Guardianship and Protective Procedures Act. In 2007, HF 1396 requires the state court administrator to convene a study group to make recommendations to the legislature concerning the powers and duties of guardians and conservators, certification and registration, screening and diversion of cases from guardianship and conservatorship, complaint processes, guardian training, financial auditing; and reimbursement of guardians, conservators and attorneys. The bill sets out membership in the study group; and requires a report by March 2008.
Nevada: Changes in Temporary Guardianship; Powers of Guardian. In crafting temporary guardianship provisions, states must make a difficult balance between procedural safeguards and prevention of irreparable harm. Nevada SB 129 changes the language concerning standards for temporary guardianship for protection against financial loss from an individual who "faces substantial and immediate risk of financial loss" to an individual who "is unable to respond to a substantial and immediate risk of financial loss." It extends the time limit on a temporary guardianship from two 30-day periods to two successive 60-day periods, but not longer than five months unless extraordinary circumstances are shown.
SB 129 also allows a guardian to use an asset from the ward's estate that has a designated beneficiary without court approval, for the benefit of the ward, if: the asset is the only liquid asset available for the care of the ward; and it does not exceed $5,000 or is required to be closed for the ward to qualify for public assistance.
SB 129 removes commitment to a mental health facility as one of the actions by the guardian that requires prior court approval. As of 2003, some 26 states required judicial approval for mental commitment by guardians. Finally, the bill changes timeframes during which a guardian retains authority to wind up affairs of a deceased ward.
Rhode Island: Clarifying Guardian ad Litem Qualifications. The role of guardians ad litem varies widely by state and frequently is unclear. The 2005 Quinn book on guardianship notes that "State laws are vague about the actual duties of guardians ad litem, which has resulted in confusion as to whether they are representing the person with diminished capacity as any attorney would represent any client or if they are acting as an informational arm of the court."
Rhode Island S 0481 establishes criteria for a guardian ad litem, specifying that a guardian ad litem need not be an attorney but must have "sufficient experience and/or training in dealing with elderly persons and persons with incapacities and/or disabilities and understanding of his or her role as guardian ad litem to be able to property discharge [the listed GAL duties]." It requires that each court maintain a list of qualified guardians ad litem, to be appointed on a rotating basis. It states that any guardian ad litem appointed for a respondent is not eligible for appointment either as legal counsel or as guardian for that respondent.
The new measure makes additional provisions concerning the guardian ad litem role. If legal counsel is appointed, the appointment of the guardian ad litem is terminated, except for informing the court of the respondent's wishes and objections concerning the hearing and the appointment of a guardian. The guardian ad litem must not interfere with the parties' gathering and presenting of evidence. The guardian ad litem may be called as a witness regarding his or her report or knowledge about the respondent. The guardian ad litem fees may not exceed $400, unless circumstances warrant, and must be paid by the petitioner if a guardian is not appointed, and by the ward's estate is a guardian is appointed. The bill makes several additional changes to the statute as well.
Virginia: Clarifying Requirements for Sale of Real Estate. Virginia HB 3177 provides that the court may require a conservator to use a "common source information company" when listing the property of the protected person for sale.
State Adult Guardianship Legislation at a Glance: 2007
State Bill Provisions
Arizona SB 1100 Includes registered nurse practitioners in list of professionals for evaluation of respondents.
Arkansas SB 820 Creates an Office of Public Guardian for Adults within the Division of Aging and Adult Services
Arkansas HB 1305 Concerns definition of incapacity
California AB 1727 Makes substantive and clarifying amendments to the 2006 Omnibus Act.
California SB 340 Permits criminal background checks on conservators.
Connecticut SB 1439 Makes substantial revisions in procedures for appointment of guardians (called "conservators"), for appeal; and in their powers.
District of Columbia Act 17-161 Temporary emergency act that creates temporary limited health care guardian; clarifies definitions of temporary and limited guardians, emphasizes substituted judgment standard of decision-making and more.
Idaho SB 1058 & 1060 Conforms statute to practice concerning service of notice by mail; makes technical changes in definitions.
Kentucky HB 374 Concerns right of individuals under guardianship to vote.
Minnesota HF 1396 Creates a study group to make legislative recommendations.
Nevada SB 157 Requires boards of county commissioners to establish office of public guardian.
Nevada SB 129 Makes changes in temporary guardianship; powers of guardians.
North Dakota SB 2012(Sec. 21) Excludes development of a volunteer guardianship program enacted in 2005, due to lack of funding.
Rhode Island S 0481 Concerns criteria, appointment, duties and fees of guardians ad litem; makes additional changes.
Virginia HB 3177 Concerns sale of real estate by a conservator.
Washington SB 5320 Creates an Office of Public Guardianship within the Administrative Office of the Courts.