e-dokumen.com

the population increases, so will the demand for federal fiduciaries andcourt-appointed legal guardians. 4Fiduciary and guardianship arrangements are not without risk toincapacitated adults, who are vulnerable to financial exploitation by theirfiduciaries and guardians. In a 2010 report, we identified hundreds ofallegations of abuse, neglect, and exploitation by guardians in 45 statesand the District of Columbia between 1990 and 2010. At that time, wereviewed 20 of these cases and found that guardians had stolen orotherwise improperly obtained 5.4 million from 158 incapacitated victims,many of whom were older adults. 5To protect against such exploitation, federal agencies and state courtsgenerally are responsible for screening proposed fiduciaries andguardians to make sure they appoint suitable individuals to oversee thefederal cash benefits and other finances of incapacitated adults. They arealso generally responsible for monitoring the performance of those theyappoint. This report assesses (1) SSA and VA procedures for screeningprospective federal fiduciaries, and state court procedures for screeningprospective guardians; (2) SSA and VA monitoring of federal fiduciaryperformance, and state court monitoring of guardian performance; (3)information sharing between SSA and VA fiduciary programs andbetween each of these programs and state courts; and (4) federal supportfor improving state courts’ oversight of guardianships.To obtain this information, we interviewed and contacted officials fromSSA, VA, and the Administration on Aging (AoA) in the Department ofHealth and Human Services (HHS). We also interviewed officials fromstate courts considered to have noteworthy guardianship programs by theNational Center for State Courts and other experts. These included courtsin California, Delaware, the District of Columbia, Florida, Minnesota, andTexas. We reviewed relevant federal laws, regulations, and policiesregarding SSA and VA fiduciary programs, including written proceduresfor screening or determining the suitability of proposed fiduciaries and for4For earlier reports on these topics, see GAO, Guardianships: Collaboration Needed toProtect Incapacitated Elderly People, GAO-04-655 (Washington, D.C.: July 13, 2004), andGuardianships: Little Progress in Ensuring Protection for Incapacitated Elderly People,GAO-06-1086T (Washington, D.C.: Sept. 7, 2006).5GAO, Guardianships: Cases of Financial Exploitation, Neglect, and Abuse of Seniors,GAO-10-1046 (Washington, D.C.: Sept. 30, 2010).Page 2GAO-11-678 Fiduciaries and Guardians

monitoring their performance. We also reviewed compilations of stateguardianship laws developed by the American Bar AssociationCommission on Law and Aging and AARP. With regard to informationsharing in this area and federal support for improving court guardianshipmonitoring, we interviewed relevant agency officials and reviewedrelevant reports and documents. We did not independently verifyimplementation of federal laws, regulations, or policies described in thisreport.We conducted this performance audit between June 2010 and June 2011in accordance with generally accepted government auditing standards.These standards require that we plan and perform the audit to obtainsufficient, appropriate evidence to provide a reasonable basis for ourfindings and conclusions based on our audit objectives. We believe thatthe evidence obtained provides a reasonable basis for our findings andconclusions based on our audit objectives.BackgroundUnder federal law, SSA 6 and VA 7 are authorized to determine whetherbeneficiaries are capable of managing their own cash benefits and, if not,to designate a responsible third party to serve as their fiduciary. SSAdesignated fiduciaries are responsible for ensuring that these benefits areused to pay for beneficiaries’ food, clothing, housing, medical care,personal items, and other immediate and reasonably foreseeable needs.Similarly, VA fiduciaries are required to manage VA payments for the useand benefit of veterans. SSA and VA can designate spouses, other familymembers, friends, and organizations to serve as fiduciaries. If anincapacitated adult already has a guardian appointed by a court, SSA andVA may designate that guardian as the beneficiary’s fiduciary. Qualifiedorganizations that serve as SSA fiduciaries may receive a fee for thisservice if they represent at least five beneficiaries and are not a creditor6SSA administers the Old-Age and Survivors Insurance (OASI) and Disability Insurance(DI) cash benefit programs. OASI provides monthly payments to eligible retired workersand their families and to survivors of deceased workers. DI provides monthly payments toeligible workers with disabilities and their families. SSA also administers the SupplementalSecurity Income program (SSI), a federal cash assistance program that guarantees aminimum level of income for eligible needy aged, blind, and disabled individuals.7VA administers its disability compensation and pension programs. Disabilitycompensation is paid monthly to eligible veterans with service-connected injuries ordiseases. VA pension benefits are paid monthly to eligible wartime veterans who havelimited or no income and are over 65, or are permanently and totally disabled.Page 3GAO-11-678 Fiduciaries and Guardians

of the beneficiary. 8 VA-designated fiduciaries, excluding those who aredependents or other close family members, may receive a fee for servingas a fiduciary, if VA determines that a commission is necessary to obtainfiduciary services. 9 SSA and VA fiduciaries permitted to receive feesobtain them from the incapacitated person’s funds.In general, state courts appoint a guardian for adults when a judge orother court official determines that an adult lacks the capacity to makeimportant decisions regarding his or her own life or property. Dependingon the incapacitated person’s needs, a court can appoint a singleguardian who is responsible for making all decisions for the incapacitatedperson. A court can also appoint either a “guardian of the estate” whomakes decisions regarding the incapacitated person’s property and/or a“guardian of the person” who makes all other decisions. Courts canappoint a private professional guardian or private organization if anincapacitated adult’s income and assets can cover their fee. 10 Otherwisecourts must turn to publicly funded individuals or organizations, or unpaidvolunteers.When state courts appoint guardians, incapacitated adults often forfeitsome or all of their civil liberties; under SSA and VA programs, they donot. Depending on the terms of the court’s guardianship appointment,they may no longer have the right to sign contracts, vote, marry ordivorce, buy or sell real estate, decide where to live, or make decisionsabout their own health care.Two key federal statutes play an important role in establishing the federalgovernment’s role and responsibilities with regard to the well-being andrights of older adults, including those for whom a court has appointed aguardian—the Older Americans Act of 1965 (OAA), as amended 11 and8Only state or local government agencies or community-based nonprofit social serviceagencies bonded and licensed by the state (if licensing is available in the state), that haveSSA’s prior approval, can receive a fee for serving as an incapacitated beneficiary’sfiduciary.9Court-appointed guardians receiving fees for guardianship services that VA selects asfiduciaries may not collect additional VA fiduciary fees.10Professional guardians typically serve as guardian for more than one client at a time.They can work independently or be a part of an organization such as a privateguardianship agency or a financial institution.1142 U.S.C. § 3001 et seq.Page 4GAO-11-678 Fiduciaries and Guardians

the Elder Justice Act of 2009. 12 The OAA created the AoA within HHS.Among other responsibilities, AoA administers formula grants made tostate agencies on aging for elder abuse awareness and preventionactivities. The act also requires AoA to develop objectives, priorities,policy, and a long-term plan for facilitating the development,implementation, and continuous improvement of a coordinated,multidisciplinary elder justice system in the United States. 13 The recentpassage of the Elder Justice Act reaffirmed the role of the federalgovernment in this area. The act created the Elder Justice CoordinatingCouncil, made up of representatives from the Departments of Health andHuman Services and Justice, and other relevant federal departments andagencies. The council is charged with making recommendations to theSecretary of Health and Human Services for the coordination of elderjustice activities across the federal government. It is also required tomake recommendations to the Congress for additional legislation or otheractions it determines to be appropriate in this area. The act requires thecouncil to report to the Congress no later than 2 years after enactmentand every 2 years thereafter.SSA, VA, and SomeStates Take Steps toScreen Fiduciaries orGuardiansBoth SSA and VA are required by law to investigate potential fiduciariesbefore they are designated to ensure they are suitable, and certain typesof individuals are prohibited from serving as fiduciaries, with the SSAstatute being more proscriptive in this regard. For example, personsconvicted of an offense that resulted in imprisonment for more than 1 yearcannot serve as SSA or VA fiduciaries unless the agencies determine thatan exception is appropriate. 14 However, while the SSA statute prohibitsformer fiduciaries who have misused benefits from serving again, unlessSSA determines that an exception is in the best interest of thebeneficiary, 15 we could find no explicit statutory or regulatory provisions12Pub. L. No. 111-148, tit. VI, subtit. H, §§ 6701 – 6703, 124 Stat. 119, 782-804 (2010) (tobe codified at 42 U.S.C. §§ 1320b-25, 1395i-3a, and 1397j - 1397m-5).13The OAA defines elder justice as “efforts to prevent, detect, treat, intervene in, andrespond to elder abuse, neglect, and exploitation and to protect older individuals withdiminished capacity while maximizing their autonomy; and the recognition of the [older]individual’s rights, including the right to be free of abuse, neglect, and exploitation.” 42U.S.C. § 3002(17).1442 U.S.C. §§ 405(j)(2)(C)(i)(IV) and 1383(a)(2)(B)(iii)(IV).1542 U.S.C. § 405(j)(2)(C)(ii) and 1383(a)(2)(B)(iv).Page 5GAO-11-678 Fiduciaries and Guardians

prohibiting these individuals from being designated a VA fiduciary. A VAofficial told us that, in practice, the agency does not designate individualswith a known history of misuse, although we did not independently verifythis.Enhancements SSA and VA plan to make in their automated systemscould help them better screen potential fiduciaries to ensure that priorfiduciaries who have misused cash benefits are not designated again.SSA is required by statute to establish and maintain a centralized file,which includes the names and Social Security numbers of representativepayees whose certification of payments of benefits has been revoked orto whom payment of benefits has been terminated on or after January 1,1991, because of misuse of those benefits. SSA is required to periodicallyupdate that file and maintain it in a form retrievable by each SSAservicing office. 16 According to SSA officials, the agency currently hassuch a file. SSA officials told us they are enhancing their automatedsystem to better track and maintain information for each fiduciarysuspected of misusing a beneficiary’s payments from the initial allegationthrough final resolution. SSA officials indicated that the first phase ofthese enhancements is expected to be completed in July 2011.Similarly, VA is required by law to annually report the number of formerfiduciaries who have misused benefits and other information regardingthese cases, and includes this information in its annual Veterans BenefitsReport to the Congress. 17 However, VA officials told us that whenscreening potential fiduciaries, field office staff must rely on individual liststhey compile of former fiduciaries in their jurisdiction who have misusedpayments, and field offices do not systematically share their lists with oneanother. Consequently, a field office might unknowingly designate afiduciary that another field office has identified as having misusedpayments to a beneficiary. VA officials indicated, however, that they are inthe process of updating their case management system, and it willeventually contain nationwide information on fiduciary misuse that will beaccessible to all field offices. 18 VA officials told us that their new system1642 U.S.C § 405(j)(2)(B)(ii).1738 U.S.C. § 5510(5)-(7).18See GAO, VA’s Fiduciary Program: Improved Compliance and Policies Could BetterSafeguard Veterans’ Benefits, GAO-10-241 (Washington, D.C.: February 26, 2010).Page 6GAO-11-678 Fiduciaries and Guardians

was a priority and they anticipate it will begin providing data on fiduciarymisuse in 2012.Regarding the courts, according to the 2011 AARP Public Policy Institutecompilation of state guardianship laws, most states restrict who is eligibleto be a guardian. 19 In 9 states, laws prohibit convicted felons from servingas guardians, and 2 states have laws that prohibit convicted criminalsfrom doing so. Only 13 states require that guardians undergoindependent criminal background checks before being appointed.SSA and VA HaveProcedures forMonitoringFiduciaries, butMonitoring GuardiansCan Be Challengingfor Many CourtsSSA and VA have similar procedures for monitoring fiduciaryperformance. In addition, SSA is required by law to establish a system ofaccountability monitoring that includes a requirement for periodic reportsfrom fiduciaries. 20 Certain SSA organizational fiduciaries and individualsserving as a fiduciary for 15 or more beneficiaries are subject to periodicon-site review. 21VA requires its fiduciaries to submit a two-page accounting report, butasks those who are court-appointed guardians to submit the sameaccountings that they submit to the court. All fiduciary accountingssubmitted are required to include documents from financial institutions,such as bank statements, covering the entire accounting period. VA isrequired to conduct periodic on-site reviews of institutional fiduciaries whooversee more than 20 beneficiaries with combined benefits of at least 50,000. 22 VA also conducts periodic site visits with incapacitatedbeneficiaries to reevaluate their condition and determine if their paymentshave been properly used by their fiduciary. In 2010 we reported that thefirst routine follow-up visit generally takes place 1 year after a fiduciary isselected, and subsequent visits typically take place every 1 to 3 years. 2319The AARP Public Policy Institute was created to inform and stimulate public debate onthe issues related to aging and to promote development of sound, creative policies toaddress the common need for economic security, health care, and quality of life.2042 U.S.C. §§ 405(j)(3)(A) and 1383(a)(2)(C).2142 U.S.C. §§ 405(j)(6)(A) and 1383(a)(2)(G)(i).2238 U.S.C. § 5508.23GAO-10-241. Unscheduled reviews may also be conducted as needed. During on-sitereviews, staff are required to examine the financial records of multiple beneficiariesconcurrently and examine any questionable expenses.Page 7GAO-11-678 Fiduciaries and Guardians

VA generally requires staff to obtain yearly financial reports and bankstatements from some fiduciaries to determine how beneficiary fundswere used. 24Most states require court-appointed guardians to be monitored, butspecific requirements vary by state. According to the 2007 AARP report,many have only limited resources to devote to monitoring, however. 25 TheAmerican Bar Association (ABA) Commission on Law and Aging 26compilation of state guardianship monitoring laws indicates that moststates require courts to monitor guardianships by obtaining an annualreport from each guardian on the incapacitated individual’s condition,among other things. 27 In some states, court investigators may visitguardians and their wards either regularly or on an as-needed basis.The AARP Public Policy Institute has emphasized the importance ofmonitoring guardians and the need for improvement in this area. 28 Topromote improvement, the institute conducted an in-depth study thatidentified nine promising current and emerging practices to strengthen24VA requires financial reports from fiduciaries who oversee beneficiary estates of 10,000 or more, who are also the beneficiary’s guardian appointed by a court, who areauthorized to collect a fee, who oversee estates of beneficiaries who receive themaximum disability payment possible, who are appointed temporarily, or in othersituations. Exceptions to this requirement can include fiduciaries who are spouses andchief officers of federal institutions.25AARP Public Policy Institute. Guarding the Guardians: Promising Practices for CourtMonitoring. Washington, D.C.: 2007.26The ABA Commission on Law and Aging was created to strengthen and secure the legalrights, dignity, autonomy, quality of life, and quality of care of elders. It carries out thismission through research, policy development, technical assistance, advocacy, education,and training.27See “Monitoring Following Guardianship Proceedings (as of December 31st, 2009)” athttp://www.americanbar.org/groups/law aging/resources/guardianship law practice.html.28AARP, Guarding the Guardians.Page 8GAO-11-678 Fiduciaries and Guardians

court monitoring (see table 1). 29 According to one AARP Public PolicyInstitute official, little has been done to evaluate these practices, however.Table 1: Promising Practices for Court MonitoringPromising practiceDescriptionReports, accounts, and plansRequiring early first reports to ensure the guardian is on track, providing clear and webaccessible forms, and requiring prospective plans for personal decisions and estatemanagement.Court actions to facilitate reportingCourts should provide ample support for guardians while rigorously enforcing reportingresponsibilities. E-filing, personal instruction by judges and staff, automated remindernotices, and scheduling compliance conferences all can help.Practices to protect assetsTo ensure that guardians properly manage finances and to prevent financial abuse,courts can require a financial management plan, require supporting documentation withaccountings, and use bonding and restricted accounts.Court review of reports and accountsReports and accounts are of little use if courts do not review them and respond toirregularities. Courts can use staff auditors and state administrative agencies to conducta baseline review, and could perform more in-depth review in a random sample of cases.Investigation, verification, and sanctionsSomeone needs to visit the incapacitated person, and it can be a trained staffinvestigator, a trained volunteer monitor, or a court-appointed attorney or investigator.Sanctions such as fines, removal, and calling in bonds address malfeasance.Database and other technologyUse of technology, such as an e-filing system with automatic capacity to flag problems,may be the most important trend for monitoring in an age when funds for staff arescarce.Court links with community groups andgovernment agenciesWorking with community resources and agencies like adult protective services and longterm care ombudsmen can leverage training resources, enhance volunteer monitoring,and extend the court’s reach.Guardian training and assistanceCourt handbooks, videos, and other resources for guardians, as well as required trainingfor professional fiduciaries, are promising tools.Funding for monitoringIdeas for bolstering resources include dedicating filing and investigation fees tomonitoring, using volunteers well, raising the awareness of county councils, and doing“things that do not cost a dime.”Source: AARP Public Policy Institute. Guarding the Guardians: Promising Practices for Court Monitoring.These practices have received attention from national organizations in theguardianship community, and courts are beginning to integrate some intotheir monitoring efforts. According to an official from the National Center29This AARP study consisted of site visits to four courts with what AARP considered to beexemplary monitoring practices, telephone interviews with two courts testing newtechnologies for monitoring, and a symposium of guardianship experts, including judges,court monitoring staff, elder law and mental health attorneys, and representatives from theNational Center for State Courts, the Conference of State Court Administrators, and theNational Guardianship Association.Page 9GAO-11-678 Fiduciaries and Guardians

for State Courts, the National College of Probate Judges is consideringincorporating versions of these practices into the update of NationalProbate Court Standards. In addition, national organizations in theguardianship community are disseminating these practices via theirwebsites as a resource to courts and others, and some have beenadopted in certain locations. For example, courts with limited fundinghave demonstrated their commitment to

AoA Administration on Aging DI Disability Insurance HHS Department of Health and Human Services NLRC National Legal Resource Center OAA Older Americans Act OASI Old-Age and Survivors Insurance SSA Social Security Administration SSI Supplemental S