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					   GUARDIANSHIP AND THE PROTECTIVE
        SERVICES CONTINUUM:
ETHICAL ISSUES, OPTIONS AND SOLUTIONS

                    Presented by
                  Terry Hammond
                 Executive Director
          National Guardianship Association




     19TH ANNUAL NAPSA CONFERENCE
             AUGUST 26 - 29, 2008
        Sheraton Chicago Hotel & Towers

“APS: Advocating, Protecting and Serving Vulnerable
                      Adults”
                  GUARDIANSHIP AND THE PROTECTIVE SERVICES CONTINUUM:

                                ETHICAL ISSUES, OPTIONS AND SOLUTIONS

                                            Terry Hammond

                                           Executive Director

                                    National Guardianship Association

        On September 7, 2006, the unthinkable happened.

        The United States Senate Special Committee on Aging convened a hearing to consider

testimony about “America’s Ailing Guardianship System.”

        The National Guardianship Association (NGA) was asked to present testimony to the

Committee, and I was asked to address the Committee on behalf of the National Guardianship

Association.    The NGA presented written testimony to the Committee as well, and that

testimony is attached to this paper. In those written comments, the NGA stated, “Adult

Protective Services (APS) agencies, which are funded with federal funds, are part of the guardianship

continuum as these agencies are the first and most immediate line of defense against abuse, neglect

and exploitation of the elderly and disabled. When APS systems fail, immense pressure may be placed

on guardianship courts to intervene on emergency bases, often depriving the elderly or disabled person

of basic due process rights.”

        In response to a request for written comments, the National Adult Protective Services

Association (NAPSA) submitted a statement to the Committee, which is also attached to this paper. In

its written comments, NAPSA stated, “APS clients are very often the adults most in need of guardians,

the most likely to be made wards, and the most likely to suffer from the current poorly resourced,

organized and monitored guardianship system in most parts of the U.S. It is unacceptable that the legal
tool designed to protect persons who cannot protect themselves is so often and so easily used to take

advantage of them by the court appointed guardian.”

         The NAPSA statement to the Committee further indicated that “there are several problems with

current guardianship services that have a very serious and deleterious effect on elders and persons with

disabilities:


      There is an extreme dearth of responsible persons available and willing to serve as guardians for

       older persons and persons with disabilities

      There is a lack of agreed upon standards for awarding guardianships; in many cases only very

       cursory evaluations are done of the prospective ward and of the potential guardian.

      The guardians that do serve are provided very little, or in many cases, no training or guidance on

       carrying out their responsibilities.

      Guardians are usually very loosely monitored by the courts, making it easy and very low risk for

       the guardian to financially exploit, abuse and neglect his or her ward.

      Public guardian programs are not available in many areas of the country, and even where they

       are, they are generally very under-funded compared to the need.

      APS caseworkers are often in the position of trying to find guardians for at risk or abused elders

       and adults with disabilities who need protection from predators, or who are simply unable to

       meet even their most basic needs and must have someone to make decisions, not infrequently

       involving life and death, on their behalf. Finding responsible family members or friends is often

       impossible, and in some states the APS worker becomes the guardian of last resort because

       someone must. This, however, creates a clear conflict of interest.
           NAPSA recommended the development of national guidelines for guardianship, created and

reviewed by a wide variety of legal, social service and health care professionals, including APS, to

include:

      Standards for awarding guardianships, based on medical and other criteria that can be applied

       with some level of consistency in every jurisdiction, and training for probate judges on applying

       those standards.

      The development and dissemination of training and informational materials for guardians to

       inform them of their responsibilities to the ward, including recommendations for handling and

       accounting for the ward’s funds, for making medical, placement and end of life decisions, for the

       minimum number of times the guardian should visit the ward, etc.

      A comprehensive, national plan for the development of adequate guardianship services in every

       locale.

      National guidelines for courts on developing and implementing workable systems to monitor the

       actions of guardians and to hold them accountable.

    NGA concluded its statement on an optimistic note, stating, “*w+ e hope this will be the

beginning of a national dialogue that will lead to the assurance that each and every elderly or disabled

person subjected to a diminution of his or her rights in a guardianship proceeding – regardless of which

state or county may consider the case – will be afforded the dignity, respect, and civil rights to which all

Americans are justly entitled.”


    It is imperative that NAPSA and NGA work together to accomplish these separately-designed but

mutually-agreeable goals and objectives. The NGA’s Standards of Practice, which are attached, were

recognized as a model to be emulated at the Wingspread National Guardianship Conference in 2001.

Since then, a number of states (Texas, California, Florida, Alaska) have either adopted the NGA’s

Standards of Practice for guardians or have modeled their state standards on NGA’s Standards. NGA
implements the Standards in educational and training opportunities around the country, including the

Spring Colloquium on Guardianship and the Fall National Conference on Guardianship. The NGA

partners with the Center for Guardianship Certification to train examinees to become Registered and

Master Guardians. There are now over 1400 Registered Guardians nationwide. The trend is for states

to contract with the Center for Guardianship Certification to administer the national exam with a state-

specific component. This has been done with a minimal cost to the states, and has elevated the level of

practice of guardians immensely around the country.


    The issue of if – and when – an APS client should be referred for guardianship as the most extreme

method of protection can be perplexing. Added to this dilemma is the question of who will serve,

especially when family members are unwilling or unable to do so. In the attached chart prepared by the

American Bar Association Commission on Law and Aging, entitled “Adult Protective Services Agency

Authority to Act as Guardian of a Client: Guidance and Provisions from Adult Protective Services Laws,

by State,” only twelve states are indicated to have adopted legislation allowing APS to serve as guardian

for a client (and some of those are under extremely limited circumstances). This means that APS staff

must frequently look for qualified guardians who are well-educated on guardianship ethics and

standards to protect the long-term interests of clients with diminished capacity.


    The NGA’s Standards of Practice contain standards on the following aspects of guardianship:


     Guardian’s Relationship to the Court

     Guardian’s Professional Relationship with the Ward

     Guardian’s Relationship with Family Members and Friends of the Ward

     Guardian’s Relationship with Other Professionals and Providers of Service to the Ward

     Informed Consent

     Standards for Decision-Making
    Least Restrictive Alternative

    Self-Determination of the Ward

    Guardian’s Duties Regarding Diversity and Personal Preference of the Ward

    Confidentiality

    Duties of Guardian of the Person

    Guardian of the Person: Initial and Ongoing Responsibilities

    Decision-Making About Medical Treatment

    Decision-Making About Withholding and Withdrawal of Medical Treatment

    Conflict of Interest: Ancillary and Support Services

    Duties of Guardian of the Estate

    Guardian of the Estate: Initial and Ongoing Responsibilities

    Property Management

    Conflict of Interest: Estate, Financial and Business Services

    Termination and Limitation of the Guardianship/Conservatorship

    Guardianship Service Fees

    Management of Multiple Guardianship Cases

    Quality Assurance

    Sale or Purchase of a Guardianship Practice

The principles outlined in the Standards of Practice are consistently congruent with APS theory and

practice, and can and should be used by all guardians and conservators engaged in the surrogate

decision-making process.

    Guardianship – ethical guardianship – is an essential tool that should be utilized when necessary to

protect the rights and interests of APS clients. APS staff and guardians practice in front of the same

judges, in cases involving the same clients, in the same communities. Ultimately, the protection of the
person and the person’s estate is the prime directive for all who work in the adult protective services

continuum. Our organizations, NAPSA and NGA, must work together to speak a common language, to

be guided by common principles and standards, and to engage in ethical practices and thus be vigilant in

ensuring that guardianship is properly used to protect the dignity, respect, and civil rights to which all

Americans are justly entitled.

				
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