STATE ADULT GUARDIANSHIP LEGISLATION: DIRECTIONS OF REFORM Commission on Law and Aging American Bar Association

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1 STATE ADULT GUARDIANSHIP LEGISLATION: DIRECTIONS OF REFORM 2010 Commission on Law and Aging American Bar Association In 2010, at least 21 states passed a total of 29 adult guardianship bills as compared with 16 states and 25 bills passed in Seven states enacted the Uniform Adult Guardianship and (UAGPPJA), bringing the total number of states with enactments to 20. The Virgin Islands passed an adaptation of the Uniform Guardianship and Protective Proceedings Act (UGPPA). Other states made changes in the guardianship adjudication process, the capacity determination, the authority of guardians, accountability and court oversight, and the public guardianship system. An earlier version of the 2010 legislative summary was included in the National Guardianship Association s 2010 Legal & Legislative Review (Wank, Salzman, Fields & Wood), October If you know of additional state adult guardianship legislation enacted in 2010 but not described below, please contact Erica Wood, ABA Commission on Law and Aging, ericawood@staff.abanet.org, A. Drive Toward Uniform Guardianship Jurisdiction In our increasingly mobile society, adult guardianships often involve more than one state, raising complex jurisdictional issues. For example, many older people own property in different states. Family members may be scattered across the country. Frail, at-risk individuals may need to be moved for medical or financial reasons. Thus, judges, guardians, and lawyers frequently are faced with problems about which state should have initial jurisdiction, how to transfer a guardianship to another state, and whether a guardianship in one state will be recognized in another. Such jurisdictional quandaries can take up vast amounts of time for courts and lawyers, cause cumbersome delays and financial burdens for family members, and exacerbate family conflict -- aggravating sibling rivalry as each side must hire lawyers to battle over which state will hear a case and where a final order will be lodged. Moreover, lack of clear jurisdictional guideposts can facilitate granny snatching and other abusive actions. See Fact Sheet from the Alzheimer s Association at: 1

2 To address these challenging problems, the Uniform Law Commission in 2007 approved the Uniform Adult Guardianship and (UAGPPJA). The UAGPPJA seeks to clarify jurisdiction and provide a procedural roadmap for addressing dilemmas where more than one state is involved, and to enhance communication between courts in different states. Key features include: Determination of initial jurisdiction. The Act provides procedures to resolve controversies concerning initial guardianship jurisdiction by designating one state and one state only as the proper forum. It sets out a schema for determining a person s home state and if none then a significant jurisdiction state in which a proceeding should be heard. Transfer. The Act sets out a two-state procedure specifies a procedure for transferring a guardianship or conservatorship to another state, helping to reduce expenses and save time while protecting persons and their property from potential abuse. Recognition and enforcement of a guardianship or protective proceeding order. The UAGPPJA helps to facilitate enforcement of guardianship and protective orders in other states by authorizing a guardian or conservator to register these orders in other states. Communication and cooperation. The Act permits communication between courts and parties of other states, records of the communications, and jurisdiction to respond to requests for assistance from courts in other states. Emergency situations and other special cases. A court in the state where the individual is physically present can appoint a guardian in the case of an emergency. Also, if the individual has real or tangible property located in a certain state, the court in that jurisdiction can appoint a conservator for that property. As it is jurisdictional in nature, the UAGPPJA cannot work as intended -- providing uniformity and reducing conflict -- unless all or most states adopt it. See Why States Should Adopt the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, In 2008, five states (Alaska, Colorado, Delaware, Utah and the District of Columbia) quickly adopted the Act. In 2009, eight additional states enacted the UAGPPJA (Illinois, Minnesota, Montana, Nevada, North Dakota, Oregon, Washington and West Virginia). The seven states adopting the Act in 2010 include the following. (For an updated map 2

3 showing UAGPPJA enactments, see: For additional resources on the UAGPPJA see ABA Commission on Law and Aging, ). Alabama HB 114 Arizona HB 2426 Iowa HF 734 Maryland SB 231 Oklahoma SB 2204 South Carolina SB 1070 Tennessee SB 444 B. Virgin Islands Passage of Uniform Guardianship and Protective Proceedings Act After over a decade of discussion by the Virgin Islands bench and bar, as well as the Law Revision Commission, the Governor signed into law a new probate code based on the Uniform Probate Code, and including significant revisions in guardianship proceedings. The Act (B. No ) affords alleged incapacitated persons enhanced procedural protections, including the right to counsel, the right to be present at a hearing in person and the right to present evidence and cross examine witnesses. The new law also updates antiquated terminology. C. Changes in Appointment Proceedings Procedural Due Process Safeguards Indiana. SB 65 adds wording on establishment of protective order as well as appointment of guardian throughout the guardianship code. Florida CSHB 91 provides authority for the Department of Children and Family Services to file a petition to determine incapacity and guardianship under certain circumstances. The Department may file a petition if it has a good faith belief that [a] vulnerable adult lacks the capacity to consent to protective services. Once the petition is filed, the Department may not be appointed as guardian and may not provide legal counsel for the guardian. 3

4 Kansas SB 372 (2010) requires the petition to include the places where the proposed ward or conservatee has lived during the last five years, and the names and addresses of the persons with whom the individual has lived. The petition also must include contact information for any person or agency with custody of or responsibility for the person and the circumstances under which this occurred. Minnesota HF 3128/ SF 2796 specifies that the petition for guardianship must include information about any person nominated as guardian including a health care agent nominated in a health care advance directive. It also requires that the petition for guardianship indicate whether the proposed guardian has ever been removed for cause from serving as guardian or conservator, and if so, the case number and court; and if the proposed guardian is a professional guardian, a summary of the educational background and relevant experience. The bill also addresses the order of priority for appointment, placing a health care agent appointed by the individual directly after a guardian and before a spouse. South Carolina HB 3803, which makes numerous changes in probate procedure, clarifies that a summons is required with a petition for guardianship. D. Health Care Powers of Guardians Perhaps one of the most controversial or hottest topics in the guardianship arena is the authority of guardians to make health care decisions for incapacitated persons. Which decisions can guardians make independently and which require approval by the court? What about end of life decisions? Admission to a mental facility? What standards are guardians to use? What is the validity of a previously executed advance directive or living will? See Richardson, Health Care Decision-Making: A Guardian s Authority, 24(4) Bifocal 1, ABA Commission on Law and Aging (Summer 2003). This year five states amended the health care decision-making authority of guardians: Georgia SB 367 (2010) provides for the appointment of a temporary medical consent guardian. If there is no advance directive, and no relative or close friend authorized under the state s default surrogate consent statute to consent to medical treatment, such a temporary guardian may consent. A hospital or other health care facility or any interested person may initiate proceedings for expedited judicial intervention to appoint a temporary medical consent guardian. The act sets out the petition process and contents, provides for notice and for the appointment of legal counsel to represent the proposed medical consent ward, and requires a preliminary hearing. The court may order an evidentiary hearing if necessary, at 4

5 which it may consider any case review by the hospital s or health care facility s ethics committee. A temporary medical consent guardian may not withdraw lifesustaining procedures unless specifically authorized by the court. The temporary medical consent guardianship terminates upon removal, appointment of a permanent guardian, end of the duration of the current hospitalization or continuous stay in a health care facility, or 60 days from the date of appointment. Minnesota HF 3128 /SF 2796 provides that an individual under guardianship has the right to execute a health care directive including appointment of an agent and health care instructions if the court has not granted the guardian any powers or duties concerning custody and choice of abode, admission to a treatment facility, health care and medical consent as set out in the guardianship code. In addition, the act addresses the status of a health care agent appointed before the establishment of a guardianship, providing that the guardian may not revoke the health care directive. However, if the court grants the guardian health care decision-making powers, the authority of a previously appointed health care agent is suspended until further order of the court. The court may find that the directive is unenforceable if there is clear and convincing evidence that is was executed under coercion or may declare that it has been revoked by the ward. New Hampshire HB 219 makes an exception to the venue provisions for hearings for on a petition of a guardian for admission of an incapacitated person to a state mental health institution. New York A 7729-D & S 3164-B (2010) enacts a Family Health Care Decisions Act after 17 years of effort by advocates. With its passage, guardians ( Article 81 guardians as opposed to Article 17A guardians for individuals with intellectual disabilities), who are named as the highest priority surrogates under the Act for decisions in hospitals, have the authority to make life-sustaining treatment decisions. For full information about this Act, see Virginia SB 275 clarified that a public guardian, like a private guardian, may authorize temporary admission of an incapacitated person to a mental health facility in certain situations and may authorize mental health treatment. E. Who is Guarding the Guardians: Accountability and Monitoring During the past 15 years, many states have sought to bolster the court s tools for oversight of guardians (see Guarding the Guardians: Promising Practices for Court 5

6 Monitoring, Despite these advances, news accounts have highlighted instances in which monitoring procedures remain lax. This year the following measures concern guardian accountability: Minnesota HF 3128 /SF 2796 provides that the guardian s annual well-being report and the conservator s accounting must include any change that would affect the accuracy of information in the most recent criminal background study of the guardian, and if applicable, the amount of reimbursement for services that the guardian/conservator received during the year (and which was not reimbursed by county contract). Additionally, the bill indicates that an interested person who has the right to receive copies of the guardian s report or conservator s accounting may notify the court that s/he does not wish to receive such copies. Tennessee HB 2668 (2010) removes brokerage firms whose accounts are insured by the Security Protection Insurance Corporation from the definition of financial institution for determination of whether to require a conservatorship or guardianship bond and whether to approve certain investments. West Virginia SB 664 requires guardian reports to include a summary of the guardian s actions on behalf of the individual, including efforts to facilitate involvement in social activities and social interaction with friends and family. F. Public Guardianship Revisions California SB 1399 requires the Department of Corrections and Rehabilitation to provide reimbursement for public guardianship services for a prisoner determined to be permanently medically incapacitated and granted medical parole. Florida CSCSSB 1412 removed a requirement that each office of public guardian, in addition to an audit every two years, is subject to audits or examinations by the Auditor General and the Office of Program Policy Analysis and Government Accountability. 6

7 Maryland SB 339 concerns the duties of the guardian of the property following the death of the individual. The guardian must pay from the estate all commissions, fees, and expenses shown on the final guardianship account; and return the balance for delivery to the personal representative of the decedent. Virginia HB 514/ SB 410 addresses the reporting responsibilities of the Public Guardian and Conservator Advisory Board to specify that the Board must submit a report to the Department for the Aging every other year concerning the activities and recommendations of the Board. Virginia SB 275 clarified that a public guardian, like a private guardian, may authorize temporary admission of an incapacitated person to a mental health facility in certain situations and may authorize mental health treatment. G. Right to Vote Many state guardianship laws address or have implications for the right of individuals with diminished capacity to vote. Some statutes include specific provisions on the right to vote. An increasing number of states (approximately 19) provide that persons under guardianship retain all legal and civil rights not explicitly removed including the right to vote. However the right to vote is also affected by state constitutional and election law provisions, making the scenario complex (see Hurme, Sally & Appelbaum, Paul, Defining and Assessing Capacity to Vote: The Effect of Mental Impairment on the Rights of Voters, 38 McGeorge Law Review, No. 4, ). In 2007, a working symposium on Facilitating Voting as People Age: Implications of Cognitive Impairment adopted recommendations to protect voting rights while protecting the integrity of the voting process. In 2010, Maryland SB 28/HB 816 (2010) revises state election law to address capacity of persons under guardianship to vote. It indicates that an individual under guardianship is not qualified to vote only if a court has specifically found by clear and convincing evidence that the individual cannot communicate, with or without accommodation, a desire to participate in the voting process. This is very close to the capacity standard set out in the 2007 Symposium recommendations, which provides If state law permits exclusion of a person from voting on the basis of incapacity, a person should be determined to lack capacity only if the person cannot communicate, with or without accommodations, a specific desire to participate in the voting process. Query how a specific desire compares to a desire to participate in the voting process. In any case, the Maryland law represents a significant advance. 7

8 H. Additional Enactments Arizona HB 2437 addresses immigration requirements for appointment of a guardian for a foreign citizen under age 21. Georgia HB 1055 (2010) pertains to fees in general throughout the code. For adult guardianship matters, the act raises fees for specified petitions by guardians -- including petitions by the guardian to sell, to compromise a doubtful claim, to change an accounting period, to file an inventory or annual report, for attorneys fees, to terminate or modify the guardianship, and for letters of dismissal as well as other petitions, applications or motions. Illinois HB 5894 (2010) concerns the filing of petitions for adult guardianship by the state s Department of Human Services, Office of Inspector General, when it finds a person in need of guardianship upon an investigation into abuse or neglect. The Act excuses the Office from filing fees in such cases. Indiana SB 65 repeals the current section of the law governing the guardian s authority to engage in estate planning for a protected person. Maryland SB 339 concerns the duties of the guardian of the property following the death of the individual. The guardian must pay from the estate all commissions, fees, and expenses shown on the final guardianship account; and return the balance for delivery to the personal representative of the decedent. West Virginia SB 664 provides that the guardian owes a fiduciary duty to act in the best interests of the individual, and requires the guardian to arrange for social interactions with the person s friends and family. Wisconsin SB 44 (Act 258) (2010) removes the right of an individual under guardianship of the person to possess firearms. The act provides that if the court appoints a guardian of a person over a ward, the court must determine whether the ward is prohibited from possessing a firearm under federal law. [Federal law at 18 USC 922(g) (4) states that it is illegal for adjudicated mentally defective individuals to possess firearms.] If so, the court will order the ward not to possess a firearm, order seizure of any firearms currently owned by the ward, and inform the ward of the criminal consequences of failure to comply. The individual may petition the court to cancel the prohibition, and the court may do if it determines that the person is not likely to act in a manner dangerous to public safety. (Wisconsin Guardianship Support Center, The Guardian, Third Quarter 2010). 8

9 Changes in Disability Terminology Throughout Code. Four states made changes in disability terminology throughout their code, including the guardianship provisions. Kentucky HB 558 changes all references to mental retardation to intellectual disability. This is in alignment with a current national trend to replace the term mental retardation with intellectual disability. Thus the new Kentucky language refers to a respondent who may be disabled due to an intellectual disability. Similarly, Idaho SB 1330 substitutes mental disability for mental deficiency. West Virginia SB 1004 substitutes intellectual disability for mental retardation and developmental disability. Mississippi SB 3004 also modernizes the terminology by using the words intellectual disability. State Adult Guardianship Legislation at a Glance: 2010 State Bill Provisions AL HB 114 Enacts Uniform Adult Guardianship and AZ HB 2426 Enacts Uniform Adult Guardianship and AZ HB 2437 Addresses requirements for appointment of guardian for foreign citizen under age 21 CA SB 1399 Provides support for public guardianship services for medically incapacitated parolees FL CSHB 91 Provides authority for APS to petition for guardianship in certain circumstances FL CSCSSB 1412 Concerns audits for public guardianship offices GA SB 367 Provides for appointment of temporary medical treatment guardian ID SB 1330 Changes terminology from mental deficiency to mental disability IN SB 65 Adds language re protective order throughout code; removes guardian authority for estate planning. IL HB 5894 Concerns APS petitions for guardianship. KS SB 372 Adds required petition information KY HB 558 Makes terminology change to intellectual disability MD SB 231 Enacts Uniform Adult Guardianship and MD SB 339 Concerns duties of guardian following death of individual. MD SB 281 / HB 816 Addresses capacity of persons under guardianship to vote 9

10 MN HF 3128/SF 2796 Makes numerous changes concerning guardian health care decision-making and reporting MS SB 3004 Makes terminology change to intellectual disability NH HB 219 Concerns venue for hearings on admission of incapacitated person to mental health institution NY A 7729 / S 3164-B Enacts Family Health Care Decisions Act, including provisions concerning guardian authority OK SB 2204 Enacts Uniform Adult Guardianship and SC SB 1070 Enacts Uniform Adult Guardianship and SC HB 3803 Clarifies that a summons is required with a petition for guardianship TN SB 444 Enacts Uniform Adult Guardianship and TN HB 2668 Removes certain brokerage firms from bonding and investment appraisal provisions VA SB 275 Addresses authority of public guardians re admission of incapacitated person to mental health facility VA HB 514 / SB 410 Amends reporting responsibilities of public guardianship program WV SB 664 Concerns guardian s fiduciary duty and responsibility to arrange for social interactions WV SB 1004 Makes terminology change to intellectual disability WI SB 44 Removes right of individual under guardianship of person to possess firearms 10