Legislation is essential for reform!
Step one is to fix the laws on the books. Then we work on enforcement!
Because of the relentless and constantly growing #FreeBritney movement, we are excited to see states begin to take new interest in updating their guardianship / conservatorship laws. Some states have been chipping away at it for years already by passing bills addressing specific problems. Others are still operating with laws which seem to be as old as time.
NASGA’s Legislative team, led by Catherine Falk, has successfully passed our “Peter Falk Right of Association Bill” in eight states and our “Peter Falk Criminal Bill” in three. Wrongful isolation is the #1 complaint we hear from our members and new victims and thus has been the main focus of our legislative efforts.* We are proud of what we have accomplished, with yet so much more to do.
COVID hampered our Legislative Team’s ability to travel and give testimony at legislative hearings. We ultimately decided at this time to solely focus our efforts on promoting the “Uniform Guardianship, Conservatorship and Other Protective Arrangements Act” (UGCOPAA) which is a whole approach to reform instead of issue by issue.
For years, it was easier and more convenient to burden individuals with full (plenary) guardianship rather than take the time and effort to treat each person’s circumstances and abilities individually. This one size fits all approach opened the floodgates to unnecessary and oppressive guardianship and left the very people the guardianship was supposed to be protecting completely at the mercy of unscrupulous guardians, conservators and their attorneys. It also left almost all of them in guardianship for life, even if they no longer needed the guardianship or never did.
UGCOPAA modernizes existing state law and refocuses guardianship to a completely different mindset. It concentrates on abilities rather than disabilities and if passed in all states, it will significantly reduce the number of guardianships, especially full guardianships. UGCOPAA also encourages restoration of rights, giving hope to many who are forced into guardianship when it’s not necessary, or kept in guardianship when guardianship is no longer appropriate.
NASGA believes every state should pass UGCOPAA and here are three of many reasons why:
UGCOPAA promotes independence: UGCOPAA does not allow a court to impose a guardianship if less restrictive alternative, such as supported decision-making would provide adequate protection. It also creates a mechanism for a court to order a protective arrangement instead of guardianship where a person’s needs could be met with this less restrictive option.
UGCOPAA promotes legal rights: Persons subject to guardianship order must be given notice of certain key rights, including the right to receive independent legal counsel and the right to have the order modified or terminated when appropriate. Guardians are limited in their ability to charge fees to oppose alteration or termination of orders.
UGCOPAA helps prevent isolation: A guardian may not restrict family members and friends from visiting or communicating with the person subject to guardianship for more than one week without a court order. Unless the court decides otherwise, the guardian is required under UGCOPAA to notify interested persons of any change in residence or significant change in health status.
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*Prior to this effort, Directors Sylvia Rudek and Debby Valdez, advocating within their own states, worked successfully to pass several bills in Illinois and Texas on different issues.
WHY STATES SHOULD PASS UGCOPAA
by Marcia Southwick
Encourage your state to adopt the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act. The Senate Committee on Aging supports this bill, which was created after two years of research into the practices of all 50 states.
Many advocates want the guardianship system to be abolished altogether. If anything this drastic can happen, alternatives that don’t remove fundamental rights would need to be available for those who need aid. UGCOPAA works towards this goal, loosening the grip of the guardianship system. The goal is to create a fairer playing field. The fairer the playing field, the fewer guardianships there will be.
1) UGCOPAA requires Due Process. Emergency petitions must be followed by a hearing within 5 days. If you are subjected to a proceeding, you can hire a defense attorney of choice, or an attorney who must defend your rights will be appointed by the court. (This is a shift away from the “best interest” standard and towards equal rights defense.) If a petition for a permanent guardianship occurs, a hearing is held within 14 days. You and your attorney can cross examine evaluators, the petitioner, and others on the case. Witnesses can be called as well in your defense. If you can’t attend the hearing for reasons beyond your control, the hearing comes to you.
2) UGCOPAA requires the court to consider all possible alternatives to guardianship (such as supported decision-making) before placing a guardianship on someone. UGCOPPA provides guidance as to what the alternatives are in Article 5. With a an attorney to defend you (as was the case for Britney Spears) alternatives can be created that replace the need for guardianship and removal of rights. In most cases, guardianship is unnecessary. (Or conservatorship in California’s case). Alternatives are what allowed the conservatorship to end.
3) A list of people, along with contact info– including family, step-family, close associates, close friends (or anyone who has assisted the person during the past six months), must be provided along with the petition. All of the people on this list are then informed of hearings, the AIP’s rights, and instructions as to how the person under protection can terminate the guardianship. Guardianship is explained in detail to all parties before the hearing.
4) The standard of argument for a petition eliminates hearsay in favor of clear and convincing evidence. This change favors a rights approach over a punitive approach.
5) If a guardianship is absolutely necessary and no other option is available, the guardian must provide a detailed plan for care, along with proposed fees, and this plan is provided to everyone on the list for review and objection. If the guardian strays from the plan, this can serve as a red flag to those who are close to the person under protection. Close associates and family provide more ears and eyes for the court reducing the cost of monitoring, The attorney and person under protection receive all financial accountings and can contest inappropriate charges. Until now, financial accountings have fallen into a black hole, creating secrecy and encouraging fraud.
6) The Guardian cannot restrict visitation for more than 7 days without presenting evidence to the court that the restriction is needed. Presently guardians isolate without reason and they do so of their own accord and for their own convenience.
7) Anyone interested in the welfare of a person under guardianship can petition to terminate the guardianship, or petition for less restrictive alternatives
8) A system for complaints is set in place, and complaints must be addressed and placed in the guardian’s permanent file to keep track of the guardian’s actions.
9) If a guardian contests a petition for termination, and their effort to keep the guardianship fails, they are responsible for their own legal fees. This disincentivizes guardians from continuing to fight since they are restricted in the use of the protected person’s funds.
10) The court is instructed to issue single orders to solve specific problems. An example might be ordering someone into a care facility, rather than putting a guardianship in place. If a nursing home bill isn’t paid, the court would order that it be paid rather than approve a guardianship simply for that purpose.
The end goal is to use plenary guardianship only when absolutely necessary, to encourage tailored limited guardianships if needed, to use single court orders to solve problems, and to encourage support systems that replace or avoid guardianship and loss of rights. The idea is to respect each person’s fundamental rights to autonomy. UGCOPAA is a living document into which further reforms may be added.
WHY WE NEED MORE DATA ON GUARDIANSHIPS
by Marcia Southwick
Many people, when they hear the words “data collection”, think of Google and Facebook. We’ve been literally used as commodities for exploitation. Data collection destroys privacy and freedom!
People in Guardianship, though never have privacy–they are monitored 24 hours a day and the charges are paid out of their own estate. They aren’t in the same situation as most citizens. They are rendered voiceless in many cases. Yet, courts all over the nation have been handing people’s most fundamental rights, often thoughtlessly, over to guardians who then controls everything about the person’s life–down to where they will live, who can visit and when, and what their allowance will be each month–usually about $100 bucks if you’re lucky. In the meantime, you could be wealthy, but since all of your assets are under the guardian’s (or conservator’s) control, you’ll never see a dime. They also pay themselves out of your assets but you will never know how much.
What prevents a guardian from going rogue with no one watching? When it comes to guardianship, there are plenty of examples of financial exploitation and isolation, but the reports don’t come from databases. — the reports come from the press. Press coverage seems to be just about the only way someone can be freed from guardianship.
Presently, there are very few states with the technology to gather statistics and organized records, Minnesota being one of the few. Without a state knowing how many guardianships there are, there is no effective way to know what happens to a person as a result of guardianship. The goal is to know where a person in guardianship is located, what kind of powers were given to the guardian, how long the guardianship has been in place, how often the person is being visited and a record of the court hearings and motions.
One goal, as pointed out in the link below, is to achieve restoration of rights for those who no longer need guardianships, or who were wrongly placed in overly restrictive situations. How can anything be done to help people if no one is tracking where and who they are? We know a few examples of families who have searched for years to find a parent taken into guardianship.
Another goal is to provide oversight by connecting the dots. Why was the person put into guardianship in the first place? (The petition-) Was an alternative to guardianship suggested or tried? (Court documents would show whether they did or didn’t.) Was there a proper evaluation for incapacity?
(You’d be surprised by how many people in guardianship are never evaluated by a proper committee, much less anyone at all. Research has shown many examples of frightening short cuts when it comes to “incapacity declarations,”. To make things even worse, many cases have bypassed due process altogether.)
We need to know: When was the guardianship initiated? Are there any complaints about the guardian? And are there other red flags, such as not turning in detailed annual accounting or any receipts? This situation deserves our attention and support. People under guardianships can be reduced to ghosts of their former selves, languishing in institutions alone. with no one seeming to care.
Wouldn’t it be useful for the state itself to collect information in case a guardian moves from one county to another, or from one court to another? States and county courts don’t have the proper technology to track cases. That’s why passing the 2021-2022 Guardianship Accountability Act introduced to congress is so important. Funds would be provided by the Federal Government to improve technology for the states, and to create a national database. The funds would be provided to the highest state and tribal courts who would make decisions on court improvement efforts.
Without stored records of complaints about a guardian, not much can be done about a guardian who has generated flurries of complaints. The Uniform Guardianship, Conservatorship and Other Protective Arrangements Act would require that complaints be addressed and kept in a permanent file. This file would go into a central state database. States should adopt the Act, which is a rights-centered approach to caring for those who need help. Alternatives to guardianship in the document go a long way towards cracking open the sometimes barbaric hold that the guardianship system has over the people in it.
Judith Widener of Nebraska, convicted in 2014, ran guardianships all over the state. She opened 40 different bank accounts through which she filtered assets belonging to the people under her protection. She was in complete control of the lives of 400 people– stuffed in institutions, no doubt, and out of sight. And yet, nobody in the Lincoln courthouse was aware of the whole picture–for an inexcusable amount of years. If counties and then the state had collected complaints, numbers of people under protection for each guardian, and a few other important details, this would never have happened.
Here’s an example of how bad things can get without comprehensive record keeping. In New Mexico, court records were examined, piece by piece, and investigators found at least two dozen guardianship cases had been closed, even though the people in guardianship were still alive without rights restored. No records, accountings, or other documents were there to reveal anything about these cases, much less the welfare of the people subjected to them. One woman put into guardianship is still nowhere to be found.
Investigations also found that two professional guardianship companies had stolen over 11 million dollars from the people in their care. A third company had failed to turn in accountings for particular cases for 10 years. Is this a system protecting people, or is it harming them? Considering how little we know about the fate of people in guardianship, the system itself is a public safety hazard.
We don’t know why people were put into guardianship (i.e. what was said in the petition), we don’t know how long a person has been in the guardianship, or whether the guardianship is limited, or plenary, We don’t know where people are being kept, we don’t know what happens them if they are moved out of state. What SHOULD we be expected to know? A lot more than we do.
Guardianship/Conservatorship Monitoring – Recommended Data Elements
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Note to all Legislators: We understand the dynamics behind special interests groups, and we appreciate you are in this battle every day.
Your task is daunting; and we applaud those of you who are working hard to better protect the elderly and adult disabled citizens of your state. Guardianship abuse is a non-partisan issue, effecting citizens of both parties or no party.
We also extend our offer to assist any legislator (regardless of party affiliation) who is or wishes to be involved in guardianship and conservatorship reform.