Guardianship Legal Reviews

National Guardianship Association Legal and Legislative Review

Developed by attorneys and guardianship experts with more than 120 combined years of experience, the Legal & Legislative Review summarizes the major reported court decisions and legislation impacting guardianship during the past year. Available for purchase as a book or on a flash drive from the National Guardianship Association.

National Guardianship Summits

Approximately every decade guardianship reform advocates have convened national summits to make recommendations for improvements in guardianship policy and practice. 

The first summit was convened in 1988 by the American Bar Association. Thirty-eight experts from around the country assembled at the Johnson Foundation’ famed “Wingspread Conference Center in Wisconsin. They agreed on 31 sweeping recommendations to better safeguard the rights and provide for the needs of adults within the guardianship system. Wingspread-the First National Guardianship Conference Recommendations and Report.

The second national conference, called Wingspan, was held in 2001 at the Stetson University Law School. Participants made 68 recommendations in six broad areas: overarching needs, diversion and mediation, due process, agency guardianship and guardianship standard, monitoring and accountability, and lawyers as fiduciaries or counsel to fiduciaries. Wingspan Recommendations.

The third National Guardianship Summit, hosted by the National Guardianship Network, was held at the S.J. Quinney College of Law of the University of Utah in 2011. This summit focused on recommending standards for guardians that emphasize self-determination and person-centered planning in making medical, residential, and financial decisions. All of the background papers commissioned for the summit as well as the official Summit Standards and Recommendations are found in a special issue of the Utah Law Review.

The National Guardianship Network sponsored the Fourth National Guardianship Summit in 2021. Due to the pandemic, this summit was held virtually in collaboration with the Syracuse University College of Law. 125 advocates, family guardians, judges, lawyers, scholars and other stakeholders gathered virtually over four days to discuss the current state of the nation’s adult guardianship system and develop recommendations for improvement around the theme of maximizing autonomy and ensuring accountability. Twenty-two recommendations covered the rights of adults with a guardian, supporting decision-making, limited guardianships, diverting guardianship pipelines, rethinking monitoring, addressing abuse by guardians, fiduciary responsibilities, and developing guardianship court improvement programs. Recommendations of the Fourth National Guardianship Summit.

2022 National Association for Court Management, Adult Guardianship Guide

A guide to plan, develop and sustain a comprehensive court guardianship and conservatorship program

2021 Joint Legislative Audit and Review Commission, Improving Virginia’s adult guardian and conservators system

2018 NCD Report on Guardianship and Alternatives

The National Council on Disability published a comprehensive report, Beyond Guardianship: Toward Alternatives That Promote Greater Self-Determination, presenting a thorough review of guardianship against the backdrop of the civil rights advances of individuals with disabilities.

2017 ABA Report on Restoration of Rights

In 2017, with support from The Greenwall Foundation and the Borchard Foundation Center on Law and Aging, the American Bar Association (ABA) Commission on Law and Aging, with Virginia Tech Center for Gerontology, published a four-state study of court termination of guardianship orders and restoration of rights, and convened a Roundtable that made recommendation for changes in law and practice.

2014 ACUS Study on Guardianship and SSA Representative Payment

The Administrative Conference of the United States conducted a survey of state courts on guardianship oversight and communication with the Social Security Representative Payee System, and reported the results in SSA Representative Payee: Survey of State Guardianship Laws and Court Practices.

2013 National Probate Court Standards, National Center for State Courts. 

2013 AARP Report on Guardian Residential Decisions

The AARP Public Policy Institute, with the ABA Commission on Law and Aging, produced a report based on a survey on guardians about residential decision-making, entitled Choosing Home for Someone Else: Guardian Decisions on Long-Term Services and Supports.

2010 Adult Guardianship Court Data and Issues Results from an Online Survey

In October and November 2009, the National Center for State Courts’ Center for Elders and the Courts (CEC) carried out an online survey on behalf of the Conference of Chief Justices/Conference of State Court Administrators (CCJ/COSC) Joint Task Force on Elders and the Courts. The survey focused on the availability and accuracy of adult guardianship data, sufficiency and training of guardians at the local level, and practices that hold promise in recruiting, retaining, and training guardians.

2010 Report on Public Guardianship

The University of Kentucky, the ABA Commission on Law and Aging and Prof. Winsor Schmidt engaged in a National Study of Public Guardianship, and published a two-part report. 

In phase one, the 2005 report, Wards of the State: A National Study of Public Guardianship, included the results of a national survey of public guardianship programs, as well as selected site visits and interviews. 

In phase two, the 2008 report, Public Guardianship After 25 Years: In the Best Interest of Incapacitated People? included additional site visits and interviews, as well as recommendations and a model statute.  

These reports formed the basis of a book by Teaster, Schmidt, Wood, Lawrence & Mendiondo, Public Guardianship: In the Best Interests of Incapacitated People? (2010), published by Praeger.

2007 AARP Study on Promising Practices for Guardianship Monitoring

In 2007, the AARP Public Policy Institute and the ABA Commission on Law and Aging produced Guarding the Guardians: Promising Practices for Court Monitoring, including practices drawn from site visits and telephone interviews with selected courts, and a symposium of experts.

2006 AARP Study on Guardianship Monitoring

In 2006, the AARP Public Policy Institute and the American Bar Association Commission on Law and Aging published Guardianship Monitoring: A National Survey of Court Practices, based on survey responses (through listserves, not a nationally representative sample) from close to 400 judges, court managers, guardians, elder law attorneys and legal representatives of people with disabilities.

1994 TCSG National Study

In 1994, The Center for Social Gerontology produced a National Study of Guardianship Systems: Findings and Recommendations by Lisi, Burns & Lussenden, which examined the guardianship process intensively in ten states, gathering data from over 700 files.

1991 ABA Study on Guardianship Monitoring

In 1991, the American Bar Association Commission on the Mentally Disabled and Commission on Legal Problems of the Elderly conducted the first national study of guardianship monitoring, as reported in Hurme, Steps to Enhance Guardianship Monitoring.

U.S. Government Accountability Reports

The U.S. Government Accountability Office has undertaken several studies on adult guardianship, producing these landmark reports:

Collaboration Needed to Protect Incapacitated Elderly People, GAO-04-655, July 13, 2004

GAO was asked to examine: (1) what state courts do to ensure that guardians fulfill their responsibilities, (2) what guardianship programs that have been recognized as exemplary do to ensure that guardians fulfill their responsibilities, and (3) how state courts and federal agencies work together to protect vulnerable adults.

 

Little Progress in Ensuring Protection for Incapacitated Elderly People, GAO-06-1086T, Sept. 7, 2006

The Senate Special Committee on Aging asked GAO to follow up on its 2004 report, Guardianships: Collaboration Needed to Protect Incapacitated Elderly People (GAO-04-655). This follow-up study found that some states had strengthened their guardianship programs; however, little progress had been made in increasing coordination between state courts and federal agencies.

 

Cases of Financial Exploitation, Neglect, and Abuse of Seniors, GAO-10-1046, Sept. 30, 2010

GAO could not determine whether allegations of abuse by guardians are widespread; however, GAO identified hundreds of allegations of physical abuse, neglect, and financial exploitation by guardians in 45 states and the District of Columbia between 1990 and 2010. In 20 selected closed cases, GAO found that guardians stole or otherwise improperly obtained $5.4 million in assets from 158 victims who were incapacitated, many of whom were seniors. In some instances, guardians also physically neglected and abused their victims. The guardians in these cases came from diverse professional backgrounds and were overseen by local courts in 15 states and the District of Columbia. GAO found several common themes: (1) The courts failed to adequately screen potential guardians, appointing individuals with criminal convictions or significant financial problems to manage high-dollar estates; (2) the courts failed to oversee guardians once they were appointed, allowing the abuse of vulnerable seniors and their assets to continue; and (3) the courts and federal agencies did not communicate effectively or at all with each other about abusive guardians, allowing the guardian to continue the abuse of the victim or others.

 

Oversight of Federal Fiduciaries and Court-Appointed Guardians Needs Improvement, GAO-11-678, July 22, 2011

SSA, VA, and state courts have screening procedures for ensuring that fiduciaries and guardians are suitable, and laws in most states require courts to follow certain procedures for screening guardians. There are also statutes and regulations requiring SSA and VA to monitor fiduciary performance. Similarly, most states require courts to obtain annual reports from guardians. There is evidence that guardianship monitoring by state courts, however, needs improving, and promising practices have been proposed to strengthen it. Gaps in information sharing between state courts and federal agencies may adversely affect adults who are incapacitated.

 

Improving Oversight of Federal Fiduciaries and Court-Appointed Guardians, GAO-11-949T, Sept. 22, 2011This GAO hearing covered Social Security Administration and Department of Veterans Affairs procedures for screening prospective representative payees and federal fiduciaries and state court procedures for screening prospective guardians. It also covered SSA and VA monitoring of federal fiduciary performance, state court monitoring of guardian performance, information sharing between SSA and VA fiduciary programs and between each of these programs and state courts, and federal support for improving state courts’ oversight of guardianships.

  

 Elder Abuse: The Extent of Abuse by Guardians Is Unknown, GAO-17-33, Nov. 2016

The report  found that the extent of elder abuse by guardians nationally is unknown due to limited data on key factors related to elder abuse by a guardian, such as the number of guardians serving older adults, older adults in guardianship, and cases of elder abuse by a guardian.  Some efforts are underway to try to collect better data on elder abuse and guardianship at the federal, state, and local levels to support decision-making and help prevent and address elder abuse by guardians. The report also identified promising practices for reducing abuse related to screening potential and existing guardians, education and support for guardians, monitoring of guardians, and enforcement. 

December 24, 2014, Administrative Conference of the United States, SSA Representative Payee: Survey of State Guardianship Laws and Court Practices

Congressional Hearings and Reports

June 2, 1992, U.S. Senate Special Committee on Aging, Roundtable discussion on guardianship 

 February 11, 2003, U.S. Senate Special Committee on Aging, Guardianships over the elderly: security provided or freedom denied 

July 22, 2004, U.S. Senate Special Committee on Aging, Protecting Older Americans Under Guardianship: Who is Watching the Guardian

September 7, 2006, U.S. Senate Special Committee on Aging, Exploitation of Seniors: America’s Ailing Guardianship System 

April 18, 2013, Nina Kohn testimony, U.S. Senate Special Committee on Aging 

April 18, 2013, Pam Teaster testimony, U.S. Senate Special Committee on Aging

April 18, 2013, David Slayton testimony, U.S. Senate Special Committee on Aging

April 18, 2013, Denise Flannigan testimony, U.S. Senate Special Committee on Aging  

November 30, 2016, U.S. Senate Special Committee on Aging, Trust Betrayed: Financial Abuse of Older Americans by Guardians and Others in Power

November 2018, U.S. Senate Special Committee on Aging, Ensuring Trust: Strengthening State Efforts to Overhaul the Guardianship Process and Protect Older Americans,  

April 18, 2018, U.S. Senate Special Committee on Aging, Press release on financial exploitation by guardians 

April 18, 2018,Senator Casey, Press release on safeguards that protect seniors from financial abuse

April 27, 2018, Senator Collins, Press release on unscrupulous guardians seeking to exploit seniors 

November 28, 2018, U.S. Senate Special Committee on Aging, Ways to Strengthen Guardianship Programs 

November 28, 2018, Cate Boyko testimony, U.S. Senate Special Committee on Aging 

November 28, 2018, Bethany Hamm testimony, U.S. Senate Special Committee on Aging

November 28, 2018, Karen Buck testimony, U.S. Senate Special Committee on Aging 

November 28, 2018, Barbara Buckley testimony, U.S. Senate Special Committee on Aging 

March 1, 2019, U.S. Senate Special Committee on Aging, Press release on Senators Collins and Casey to introduce bill to protect adults with guardians 

September 28, 2021, U.S. Senate Committee on the Judiciary, Toxic Conservatorships: The Need for Reform

September 28, 2021, Zoe Brennan-Krohn testimony, U.S. Senate Committee on the Judiciary

September 28, 2021, Nicholas Clouse testimony, U.S. Senate Committee on the Judiciary

September 28, 2021, Dr. Clarissa Kripke testimony, U.S. Senate Committee on the Judiciary

September 28, 2021, David Slayton testimony, U.S. Senate Committee on the Judiciary

September 28, 2021, Morgan Whitlatch testimony, U.S. Senate Committee on the Judiciary